Burning Down the House : The End of Juvenile Prison (9781595589668) (33 page)

The federal Department of Justice sent its own investigators, filed its own lawsuits, and succeeded in obtaining oversight over systems found to be violating the Constitution. This litigation and the mandates it generated drove the cost of confinement higher and higher.

Researchers of all stripes joined in the fray, offering study after study challenging both the practice and the premise of juvenile incarceration by demonstrating that locking up teenagers not only failed to rehabilitate them but actually led to
more
crime. Young people were leaving juvenile facilities with post-traumatic stress symptoms and a hatred of authority that was hard to overcome. Few had received more than the most perfunctory education, further reducing their prospects upon release. The burden of a record, combined with the opportunity cost of all those lost years, made them virtually unemployable. That recidivism rates had reached 80 or nearly 90 percent in some states was hardly surprising in the context of the growing body of research detailing the ways in which juvenile incarceration damaged both the prospects and the psyches of those subjected to it.

Keeping the growing pile of research and scandal from slipping back under the radar required concerted advocacy on many fronts. Foundations and think tanks issued reports and recommendations; public-interest and community groups held rallies and public fora; and the families of the children whose lives were at stake began to join together, their collective voices helping topple some of the worst facilities (
in Louisiana, for example, family advocates not only closed a particularly horrific institution but won changes system-wide).

Each of these elements is important, but none is new. Scandal and exposé have dogged the juvenile prison since its inception, and advocates and lawyers have struggled for decades to gain a foothold against the seemingly impenetrable monolith. Sometimes they have succeeded, and a particularly notorious institution has been forced to clean up its act. Occasionally, a full-blown pendulum swing has been triggered.

Change of the current scale, however—a 40 percent drop over the course of a decade—
is
something new. Making it happen has required a convergence of the various forces listed above, but also something more. All signs point to the most powerful motivator in American history: money.

As the number of juveniles in state institutions crept ever upward in the late 1980s and early 1990s, so did the cost of keeping them there: an average of $241 per young person per day, or
$88,000 per year, and as high as $225,000 in some states. This alone—the fact that
we could support about ten kids a year at a public university for the cost of keeping one in a juvenile prison—might not in itself have been enough to tip the balance. Prison budgets have long been considered untouchable, and a public fed a steady diet of terrifying anecdotes, spurious research, and inflammatory rhetoric could generally be convinced that no price was too high to keep the barbarians behind prison gates. Even as the cost of locking up (mainly low-level) offenders drained public coffers so deeply that it threatened the education of millions of children, politicians dared not risk appearing “soft on crime.”

But finally—with the system weakened, wounded, and visibly wobbly—came the knockdown blow. The national economy imploded, tax revenues plummeted, and states that had long considered their corrections budgets sacrosanct started going broke.

As the American economy took a nosedive of a scale not seen since the Great Depression, legislators finally succumbed to the inevitable. Not only were our juvenile prisons brutal, inhumane, and entirely counterproductive—all things that had been evident for quite some time—they were now, finally, out of our price range.

By 2010,
the Great Recession had sparked the greatest dip in state revenues ever recorded, with
a total state budget shortfall of $191 billion. By 2011,
46.2 million Americans were living below the poverty line, the highest number since the government began keeping track. With unemployment rising, housing values falling, and poverty spreading, increasing tax revenues was not a viable option for addressing budget shortfalls that threatened basic services relied on by the free. In desperate late-night sessions, legislators cut ever more deeply, leaving crucial social services, public salaries, and education budgets decimated.

Still the shortfall gaped.

Each time legislators and their staff brought out the blue pencil, hoping they might find something left to cut, the same previously sacrosanct line item loomed ever larger. Mass incarceration, long treated as the last standing entitlement, finally came to be seen as a cost too high to bear.

Whether state leaders were making a virtue of necessity or were genuinely convinced by the mountain of evidence against youth incarceration, political rhetoric started to shift. Maybe those guys from the think tanks were on to something after all with their talk about getting “smart on crime”—moving beyond the tough-guy rhetoric and taking a look at what actually worked when it came to juvenile justice, as well as the high cost of persisting with what did not. Whatever the motivation, a number of politicians adopted the “smart on crime” slogan—an intentional play on the “tough on crime” ethos—as their own.

Also influential was a wave of studies that delved into the structure and development of the adolescent brain. Advances in imaging technology allowed researchers to demonstrate conclusively that the brain was not fully developed until early adulthood. The more recent of these studies established that the frontal lobe, which governs rational decision making, does not fully mature until the mid-twenties. Advances in magnetic resonance imaging allowed neuroscientists to track the continued development of the prefrontal cortex through adolescence and into the mid-twenties.
This part of the brain, which grows rapidly during these years, “is involved in complicated decision-making, thinking ahead, planning, comparing risks and rewards”—all functions with tremendous bearing on crime and its cessation. These discoveries underscored empirical evidence that most young people grow out of delinquency on their own as their brains mature—if they are spared the trauma and lasting stigma of juvenile incarceration.

“Much adolescent involvement in criminal activity is part of the normal developmental process of identity formation and most adolescents will mature out of these tendencies,” researchers at the National Research Council wrote in 2013, summarizing the implications of more than a decade's worth of studies. “This knowledge of adolescent development has . . . direct bearing on the design and operation of the justice system, raising doubts about the core assumptions driving the criminalization of juvenile justice policy in the late decades of the 20th century.”

By underscoring the biological roots of teenage impulsivity, this new wave of adolescent brain research not only called into question the legitimacy of assigning adult culpability to teenagers, it also cast new light on the effect of incarceration in any form—including in institutions ostensibly designed for juveniles—on the developing mind. Confining young people at this crucial developmental juncture, researchers argued, deprived them of
the opportunity to develop critical thinking and decision-making skills—exactly the skills they would need to steer clear of crime in the future—at the very moment when their brains were primed to acquire them. The law had long recognized that growing adolescents had a right to physical exercise even when confined; without it, their developing muscles would atrophy. Now scientists were raising similar concerns about the developing brain. What lasting harm might ensue when young people, kept in an environment where every decision was made for them, were deprived of the right to exercise
that
organ?

The technology that allowed brain research to advance may have been new, but what it revealed was not. The understanding that teenagers are
biologically
different from adults, that their developing minds made them both more malleable and less culpable, was central to the invention of the juvenile court, with its presumption that juveniles possessed a particular amenability to rehabilitation. After falling out of favor in the 1980s and 1990s, this notion was not only back on the radar in the early twenty-first century, it now had hard science to support it.

Jay Blitzman, a Massachusetts juvenile court judge who is known (like the avuncular judges of Ben Lindsey's era) for stepping down from the bench to work out dispositions face-to-face with young people and their families, is thrilled to have this hard evidence of what he has long understood.

“What's exciting,” Blitzman said, “Is that now—over one hundred years after the creation of the first juvenile courts—we have the psychological research, the brain imaging, the scientific research to support the intuitive notion that the founders of the system had around the turn of the century: that kids are not little adults. So this mantra, ‘kids are different'—there is now meat on the bone.”

The Supreme Court, Blitzman pointed out, cited adolescent brain research in key decisions that undergird safeguards for juveniles.
Roper
v. Simmons
(2005), which abolished the death penalty for juveniles;
Graham v. Florida
(2010), which barred mandatory sentences of life without parole in noncapital cases; and
Miller v. Alabama
(2012), which extended the protection against mandatory life sentences to all juveniles, regardless of offense,
all relied on the understanding that there were fundamental differences between the adolescent brain and that of adults.

Writing for the majority in
Miller
, Justice Elena Kagan established that “mandatory penalties, by their nature, preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other—the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one.”

By elaborating on the various ways in which youth matters under the law, these Supreme Court rulings offer broad implications for jurisprudence as a whole. “All of these cases cite the [brain] research that I've alluded to,” Blitzman emphasized. “So it's now accepted that, yes, kids are different.”

“That doesn't mean we give them a pass,” Blitzman clarified. “It doesn't mean that they shouldn't be held accountable. But they have got to be held accountable in a way that is proportionate to where they are developmentally. And you've got to look at each kid individually, which is again part of . . . the way the system was intended.”

Several years ago, a state legislator explained to me the difficulty of taking a strong position when it came to juvenile justice. He could vote against a new “tough on crime” law, he told me, without too much risk to his political future, but voting to rescind or even amend an existing one would be going too far. All it would take to end a political career was one teenage Willie Horton. The legislator could do more good in the long run, he told me, if he colored inside those lines.

He might have done better had he actually tested the public mood before deferring so quickly to voters' imagined bloodlust. But when it came to understanding the shift in public opinion, he was far from the only politician to be behind the curve.
“Advocates for juvenile justice reform . . . are used to hearing from legislators that they have to appear ‘tough on crime' in order to address their constituents' public safety concerns,” according
to the National Juvenile Justice Network. “However, many recent studies and polls about public attitudes toward youthful offenders . . . suggest that the public is often ahead of their representatives in understanding that the toughest posture on youth crime is not necessarily the smartest one.”

Multiple polls bolster this conclusion: Americans believe (correctly) that rehabilitation and treatment are a more effective means than incarceration to reduce youth crime. They are even willing to pay more taxes if that is what it takes to offer young people—including those charged with acts of violence—the support they need to move forward with their lives. (In fact, extra taxes are unnecessary: incarceration is the costliest intervention of all.)

The more deeply pollsters probe, the clearer it becomes that the public consensus has shifted since the fear-infused 1980s and 1990s. The Center for Children's Law and Policy, for example, conducted a national telephone survey in which 89 percent of those surveyed agreed that “almost all youth who commit crimes have the potential to change” and more than 70 percent believed that “incarcerating youthful offenders without rehabilitation is the same as giving up on them.” Eighty percent “favored reallocating state government money from incarceration to programs that provide help and skills to enable youth to become productive citizens.” Fewer than 15 percent saw incarceration as an effective means of addressing delinquency.

Strikingly,
62 percent favored “assigning nonviolent youth to live in their own homes, receiving counseling and other services under the close supervision of a caseworker, rather than in large juvenile facilities”—an accurate description of
several evidence-based interventions that have shown great success with juvenile offenders.

It has taken politicians a while to catch up with the public, but legislators on both sides of the aisle have adopted the new catchphrase: in place of chest pounding about being “tough on crime,” many now speak in measured tones of the need to be “smart on crime.” And consigning children to large institutions that closely resemble the adult prisons where far too many will eventually end up is increasingly difficult to pass off as “smart.”