Incarceration Isn’t Always the Answer

The United States has the highest incarceration rates of any country in the world. According to the National Association for the Advancement of Colored People (“NAACP”), 1 in every 31 adults or 3.2 percent of the population is under some form of correctional control. To me these numbers are upsetting. With these rates, one could reasonably think that the threat of incarceration would deter criminal activity or at least produce a deep reduction in crime. Unfortunately this is not the case. So how do we begin to fix this problem?

As a Student Fellow with the Sayra and Neil Meyerhoff Center for Families, Children and the Courts (“CFCC”) at the University of Baltimore School of Law, I’ve become acquainted with a specialized tribunal called problem-solving courts. Despite being in my final year of law school, prior to this law school course, I had never heard about problem-solving courts. Unlike traditional courts, where prison sentences are used as a means to have criminals pay for their crimes, problem-solving courts focus on the underlying issues causing the crime. So for example, in a case where a defendant has committed a theft as a result of a drug addiction, in a problem- solving court the focus would be on how to restore this person through drug treatment. Whether the issue is substance abuse or mental illness, problem-solving courts use an integration of treatment services, close monitoring of the defendant, and collaboration with the community and other organizations to restore the defendant and strengthen the community.

While problem-solving courts are not a cure all, I believe that problem-solving courts are a step in the right direction. It is a form of therapeutic justice that should be utilized more frequently. Irrespective of our individual ideas on how to change the criminal justice system, I think we can all agree that something needs to change and soon. This sentiment is also reflected through the comprehensive review of the criminal justice system by the Department of Justice, commenced at the direction of the Attorney General earlier this year. The current rates of incarceration affect us all, and it’s an issue we should all be educated about. High incarceration rates hurt taxpayers,  affect the economy as imprisoned non-violent offenders who could be working are unable to, and  separate families. I'm not saying criminals should not be punished for their crimes, but let’s face it, the current system isn't working. If we are to begin moving forward as a community and as a nation we need to address the underlying issues surrounding crime. I encourage us all to start the discussion. How do you think we should begin to change and improve the criminal justice system?

Maryland’s Juvenile Justice System: Year in Review

CFCC’s 2012 Urban Child Symposium (UCS), entitled "The Urban Child in the Juvenile Justice System: The Beginning or the End?," focused on the  juvenile justice system.  Symposium panelists identified several priorities for juvenile justice system reform (more information is in the Unified Family Court Connection Winter 2013 Issue, which featured articles from several UCS presenters):

• Direct juveniles toward community and family-based treatment rather than incarceration;
• Address racial and ethnic disparities on a system-wide basis;
• Abandon laws that require or allow juveniles to be tried as adults; and
• Include all stakeholders in reform efforts.

In the past year, the juvenile justice system has received significant local and national media attention for improvements in policy and practice: 

• A Baltimore Sun op-ed praised the Maryland Department of Juvenile Services (DJS), under Secretary Sam Abed’s leadership, for making progress in diverting youth from confinement, decreasing overcrowding, and providing more community-based, evidence-supported alternatives to detention for youth offenders.  The Sun op-ed, based on a report by the independent Juvenile Justice Montoring Unit, announced that conditions and safety in Maryland’s youth detention centers have improved, with reported decreases in violence, injuries, group disturbances, and use of restraints.  
•  Longstanding plans to build a $100 million, 180-bed jail for juveniles charged as adults were scrapped, with $70 million allocated instead to renovate smaller facilities and build a desperately needed new treatment center.   A promising part of this plan includes placing youth who have been charged as adults but are eligible for waiver into the juvenile system in special juvenile pre-adjudication facilities.
• Mandatory sentences of Life Without Parole for juveniles, including for murder, have been abolished by the Supreme Court (see Bernadine Dohrn’s  article in the UFC Connection at page 5).
• An  Annie E. Casey Foundation national report  concluded that significant gains have been made in the last decade in reducing the youth prison population while also improving public safety, with Maryland showing some of the greatest improvements.  

These changes represent a sea-change from the highly punitive and largely ineffective practices of the 1990s toward evidence-based and holistic reforms that focus on alternatives to detention and improved outcomes for youth.  Capitalizing on the progress made in the past decade, the juvenile justice system should consider the following reforms, among others:

• Increase the availability of treatment programs and community and home-based alternatives to detention.  According to the Juvenile Justice Monitoring Unit report, hundreds of youth were held in detention centers for more than two months (with one youth waiting 217 days) last year while awaiting placement in treatment or other community-based programs .  DJS has already made significant progress in this area – the Baltimore City Juvenile Detention Center showed a 36 percent reduction in the number of youth who waited over two months for placement in a treatment program.  There is still room for improvement, given the risks of high-security detention for non-violent and low-risk youth.
• Improve conditions and expand availability of alternatives to detention for girls.  Programs and services for girls, who are generally low-risk and high-need, lag well behind those for boys.  Very few alternatives to detention in Maryland accept girls, and there is a dearth of programs and services available in the all-girls treatment facility (the Carter Center) and the detention facility (the Waxter Center), where numbers have remained nearly the same as last year.  The staff at Carter has been trained in the Attachment, Self-Regulation and Competency (ARC) model of trauma-informed care, a practice which should be continued and expanded to address other gender-specific needs of girls throughout the juvenile justice system.  DJS and its partners should continue working to bring the progress seen for boys to girls in the system and should consider racial, ethnic, and sexual orientation sub-populations to ensure that progress is equally helping meet their needs.
• Schools, social services, the courts, the police, DJS, and community-based resources should adopt promising practices to prevent youth involvement in the justice system and to end the “school-to-prison pipeline” or, more comprehensively, the cradle-to-prison pipeline.  Youth should have access to programs and services before they end up in the juvenile justice system. 

Policymakers and advocates must continue to work together to ensure that recent progress represents a new beginning, and not the end, of our efforts to improve outcomes for our youth.

Therapeutic Jurisprudence and Problem-Solving Courts: From a Maryland Perspective

Through the CFCC Student Fellows Program, I was afforded the opportunity to learn how the integration of therapeutic jurisprudence, the ecology of human development, and problem-solving courts work together to impact children and their families. Problem-solving courts attempt to address the underlying problem that is responsible for the immediate dispute and to help the individuals before the court to effectively deal with the dispute in ways that will prevent reoccurrence with court involvement. Problem-solving courts use principles of therapeutic jurisprudence to enhance their functioning, which translates to rehabilitating the offender and the transformational use of the legal process (role of judge, multidisciplinary involvement, close monitoring of the offender). These problem-solving courts typically deal with individuals who need social, mental health, or substance abuse services. By utilizing the therapeutic jurisprudence approach in problem-solving courts, an offender’s likelihood of recidivating significantly declines due to the court system’s approach of interacting with the offender in a non-punitive manner.

There are various types of problem-solving courts that have been implemented in the United States. In Maryland, we have several types of these courts, including: drug courts (adult, juvenile, and family), mental health courts, and truancy reduction courts. ¹ The drug courts in Maryland typically entail a court team working together in a non-adversarial setting with a goal of restoring the defendant as a productive member of society. ² According to the National Drug Court Resource Center, the average graduation rate for the programs is 53%. ³ In addition, those who participated in the juvenile drug treatment court programs had lower recidivism rates (53%) and lower numbers of new arrests 18 months (70%) after completion of the program compared to those who did not participate in the program. ⁴ In Maryland’s mental health courts, participants are identified through mental health screening and mental health assessments, and they voluntarily participate in a treatment plan developed by a team comprised of court staff and mental health professionals. According to data collected by The Institute for Governmental Service and Research (IGSR), University of Maryland-College Park, for the Baltimore City mental health court participants, the most severe arrest charge is assault (32%), with drug related charges (19%) following right behind. ⁵

Lastly, the truancy reduction courts in Maryland were created to improve school attendance and the offenders’ views of education by establishing a bond among the family, school, and juvenile master or judge. According to a national May 2012 report, "The Importance of Being in School: A Report on Absenteeism in the Nation's Public Schools,” 10% to15% of students in the United States are chronically absent from school. This translates to least 5 to 7.5 million students missing at least 10% of the school year.⁶Such startling statistics are the reason why the Maryland judiciary has implemented several truancy reduction courts. Apart from the Maryland judiciary, other truancy court programs, such as the Center for Children, Families, and the Courts school-based Truancy Court Program (TCP), have been implemented in order to attack this problem. During the 2011- 2012 school year, there was a 71% average reduction in unexecused absences for Baltimore City TCP participants in Fall 2011.

I hope the Maryland judiciary continues the trend to utilize problem-solving courts, as these courts are effective at resolving underlying issues to prevent offenders from recidivating.

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1 Maryland Judiciary Office of Problem Solving Courts, http://www.courts.state.md.us/opsc/index.html^↩
2 Office of Problem Solving Courts Drug Treatment Courts,http://www.courts.state.md.us/opsc/dtc/index.html^↩
3 Maryland Problem-Solving Courts Evaluation, Phase III Integration of Results from Process, Outcome, and Cost Studies Conducted 2007-2009, http://www.ndcrc.org/sites/default/files/maryland_phase_iii_integrated_final_report_1209.pdf^↩
4 Id.^↩
5 Process Evaluation of Baltimore Coty Mental Health Court, http://www.courts.state.md.us/opsc/mhc/pdfs/evalutations/bcmhcprocessevaluation3-11-10.pdf.^↩
6 New Report on Absenteeism: Millions of Students Are Missing At Least 10% of School Year, http://library.constantcontact.com/download/get/file/1102919617272-138/Report+on+Absenteeism-draft.pdf.^↩

Investing in Children’s Mental Health As a Preventive Law Approach to Juvenile Delinquency

Courts struggle with effective ways to deal with individuals whose mental health issues lead to criminal behavior. This is especially true for courts responsible for adjudicating juvenile delinquency. Childhood exposure to violence can impact children’s social and emotional development. It has been linked to poor social functioning and mental health issues, including depression, low self-esteem, anxiety, and depression. Some children repeatedly exposed to violence, particularly violence in the home, develop PTSD with symptoms such as re-experiencing, avoidance, numbing, attachment issues, and impulsivity and inattentiveness that mimic the symptoms of AD/HD¹. Children involved in the court system, both the delinquency and abuse and neglect systems, have higher trauma exposure rates than other children. They need access to mental health services and treatment programs that can provide appropriate intervention, and they need a trauma-informed court system that can work in tandem with these providers.

Yet as a CFCC Student Fellow examining Maryland’s delinquency system, I find myself wondering how effective our system is at meeting the needs of these children. The Maryland Department of Juvenile Services is charged with providing “individualized care and treatment to youth who have violated the law or who are a danger to themselves or others².” DJS treatment programs include Functional Family Therapy and Multi-systemic Therapy that provide services in both clinical settings and in the home. These interventions have the potential to help to positively impact children and their family unit as they address some of the underlying issues, including trauma, that lead to the child’s delinquency.

The problem with this model, however, is that children have to be adjudicated as delinquent before they have access to these services. This is especially problematic for poor families who cannot afford to pay for services on their own. Where middle and upper income families can afford to pay for private therapy programs to help their children who are acting out, families without these means must wait for the behaviors to worsen and the consequences to become more severe before intervention is available. By then, the intervention may be too little too late.

Perhaps it is not DJS’s role to provide access to mental health and family therapy services before youth are adjudicated as delinquent. The agency is after all charged with the care and rehabilitation of juvenile offenders. If DJS cannot provide these services, I think the state should provide access through another agency. While it is true that in the current economic climate funding for such programs is scarce, the state ends up paying the price down the road in the form of juvenile detention. Maryland spends $22.6 million each year to detain youth.³ According to one study, 2/3 of young people in juvenile detention would meet the requirements to be diagnosed with a mental disorder.⁴ Furthermore, Maryland continues to move forward with plans to spend $70 million building a 120-bed jail to house youth who have been charged as adults. Juvenile detention is expensive and arguably ineffective. Looking at these statistics, I believe that more investment at the front end to provide children and families with better access to mental health services could lead to lower rates of offenses. Our current system is reactionary. A proactive preventive approach would likely be a better use of the state’s limited resources.

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1 Lisa Pilinik & Jessica R. Kendall, The Safe Start Center Series on Children Exposed to Violence Issue Brief #7: Victimization and Trauma Experience by Children and Youth: Implications for Advocates (2012) available at www.safestartcenter.org.
2 Maryland Department of Juvenile Services, DATA RESOURCE GUIDE FISCAL YEAR 2011 (2012)
3 STOP BALTIMORE YOUTH JAIL: OPPORTUNITY NOT DETENTION, www.stopbaltimoreyouthjail.com.
4 Just Kids Partnership, JUST KIDS: BALTIMORE’S YOUTH IN THE ADULT CRIMINAL JUSTICE SYSTEM. A REPORT OF THE JUST KIDS PARTNERSHIP TO END THE AUTOMATIC PROSECUTION OF YOUTH AS ADULTS (2010) available at www.justkidsmaryland.org.