BY SIBELLA MATTHEWS
In 2014, the Connecticut Department of Children and Families transferred a 16-year-old girl of color known as Angel to a maximum-security adult prison.[1] Guards supervised Angel as she showered and isolated her in solitary confinement for 22 hours per day. Her offense was “delinquency,” a crime that is not serious or violent but the clear result of a childhood marked by untreated trauma. Angel’s incarceration was preceded by years of rape, abuse, trafficking from the age of eight, and several placements through child protective services. Her case received national attention, but it is not unique. Each day, more than 47,000 children, 7,000 of whom are girls,[2] are held in secure detention facilities in the United States.[3] Angel’s story is one of many in which the justice system opted for imprisonment over treatment.
There is an inherent cruelty in incarcerating girls for self-preserving “delinquent” behavior, such as running away or acting out, when that behavior results from the same state’s failure to shield them from abuse, trauma, and neglect. As Angel’s case demonstrates, the current approach of incarcerating girls for minor offenses and technical violations—often victimless offenses that pose no threat to public safety—contradicts common conceptions of fairness and fails to address the individual needs of girls.
Entering Incarceration
The nature of girls’ criminal offending makes them disproportionately “high need” and “low risk.”[4] Research shows that girls are more likely than boys to be detained for misdemeanors, technical violations, outstanding warrants, and a category of crimes known as status offenses.[5] Status offenses are acts only deemed criminal if their perpetrators are children and include truancy, curfew violations, and possession of liquor. A census of children in custody in the United States in 2010 showed that girls comprise 16 percent of all detained children but 40 percent of children detained for status offenses.[6] Many girls are being incarcerated for acts deemed criminal due to their young age, ironically via a juvenile justice system designed for rehabilitation—rather than punishment—of young people.[7]
Girls are also more likely than boys to be detained in contempt for violating court-imposed rules.[8] Girls have a lower recidivism rate than boys, yet they are more likely to return to detention due to a probation violation rather than the commission of a new crime.[9] A 2006 study of Washoe County, Nevada, found that 90 percent of girls detained in the county were confined for technical violations of probation and not for new crimes.[10] Of those girls, 50 percent had been on probation for misdemeanor offenses such as shoplifting, possession of alcohol and marijuana, and domestic battery.
Interestingly, that same Washoe County study found that these misdemeanor offenses were unlikely to have triggered a probation sentence for boys, based on the county’s sentencing data.[11] Commentators have suggested that this kind of sentencing bias can be explained by institutionalized gender norms that wrongly define socially acceptable and unacceptable behavior for girls. Like all institutions, the juvenile justice system is not immune from society’s intolerance of girls who are non-cooperative and non-compliant,[12] or the expectation that girls behave “obediently, modestly, and cautiously.”[13] As a result, girls are effectively punished for violating conventional stereotypes and socially acceptable standards of feminine behavior, rather than for threatening public safety.
Detaining girls for status offenses and misdemeanors also fails to acknowledge and address the underlying causes of such behavior. The courts view running away, breaking curfew, and truancy as acts of rebellion, but for many girls these acts are attempts to protect themselves from an abusive situation. By treating girls as perpetrators rather than victims in such situations, the juvenile justice system not only leaves the trauma underlying the girls’ behavior unresolved but also shields the girls’ abusers from accountability.[14] The UN Committee on the Rights of the Child has expressed concern that girls are too often sentenced for crimes with roots in psychological or socioeconomic stress and recommends that status offenses be abolished for this reason.[15]
For many girls, the commission of status offenses and misdemeanors stem from a history of sexual abuse and unaddressed trauma. The extent to which incarcerated girls experience sexual violence prior to entering the juvenile justice system has led experts to label the phenomenon the “sexual abuse to prison pipeline.”[16] For example, a 2006 study of girls involved in Oregon’s juvenile justice system found that 93 percent had experienced prior sexual or physical abuse, including 76 percent having experienced at least one incident of sexual abuse by the age of 13.[17] Not only is sexual abuse one of the primary predictors of girls’ entry into the juvenile justice system,[18] it is also one of the strongest predictors of whether a girl will re-enter the system after release—even more determinative than the risk factors of prior justice involvement or behavioral problems.[19] Girls experience sexual abuse at a rate five times higher than boys,[20] making them particularly vulnerable to criminal offending as a result of unaddressed trauma.
Incarceration Conditions
The combination of high rates of prior abuse and overly punitive responses to low-level offending leads too many girls to incarceration, where the system offers more harm than help. Because the stereotypical juvenile offender is “a violent, young male,” theories about delinquent behavior are often based on adolescent boys. In turn, programming within the juvenile justice system has been developed to meet the needs of male offenders,[21] such as learning how to self-regulate aggression, rather than developing self-esteem and resiliency. Gender norms also continue to impact the treatment of girls in detention; one study found that girls in a detention facility were penalized more harshly with legal sanctions rather than verbal reprimands when acting “unladylike” (for example, acting aggressively toward other girls).[22]
Girls are also particularly vulnerable to the fact that detention facilities are ill equipped to address and manage prior violence and victimization. Incarcerated girls with a history of abuse require sensitive and tailored responses. A Florida study of 64,000 children in juvenile detention noted that exposure to abuse and trauma in childhood prior to detention manifests differently among girls and boys. Girls were found to have more internalizing behaviors, disordered eating, self-mutilation, and mental health symptoms.[23] This is consistent with research finding that within detention facilities 29 percent of girls experience depression, compared to 11 percent of boys.[24]
Such figures become even more alarming when considering the severely limited access to mental health services within juvenile detention facilities. A US Department of Justice nationwide census found that only half the youth in the juvenile justice system are placed in a facility that provides mental evaluations for all youth in the facility, and 88 percent of youth in juvenile justice facilities reside in facilities where the mental health counsellors are not licensed professionals.[25] One might argue that detaining girls who suffer from mental health disorders or trauma from prior abuse is desirable on the grounds that the system can provide protection from abusers and services for rehabilitation. The reality is that mental health services are sparse, and incarceration takes its own psychological toll.
Living in an isolating, punitive environment with harsh disciplinary practices is particularly harmful to victims of trauma and can trigger traumatic stress symptoms.[26] Routine practices, including use of restraints, solitary confinement, isolation, and strip searches, can be drastically detrimental to already traumatized youth.[27] Unsurprisingly, researchers have found that even short periods of isolation can elicit symptoms of paranoia, anxiety, and depression in juveniles, and those who spend extended periods in isolation are among the most likely to attempt suicide.[28] In addition, the social isolation in secure institutional settings does not allow girls opportunities to develop healthy peer relationships, which are critical to their development and recovery.[29]
New incidents of sexual assault within the detention facilities also compound the impact of any initial abuse. The Department of Justice’s Review Panel on Prison Rape released a 2016 report on sexual victimization in prisons, jails, and juvenile correctional facilities, finding that 9.5 percent of adjudicated youth surveyed for the study had experienced sexual violence in custody.[30] The constant threat of sexual violence in an institution intended to keep already traumatized children safe is among the most concerning aspects of the juvenile justice system. In 2003, Congress attempted to address this issue with the Prison Rape Elimination Act, intended to be a zero-tolerance policy for sexual violence in custodial settings.[31] However, the legislation has proved hard to enforce and has also had an unintended consequence of further criminalizing institutionalized girls’ sexual behavior amongst each other, resulting in an increase in the female juvenile sex offender population.[32]
Addressing the needs of girls in detention is urgent as girls make up an increasing proportion of incarcerated children. In 2010, girls represented 13 percent of juveniles in detention; by 2015, girls accounted for 15 percent.[33] Additionally, girls who identify as African American, Native American, lesbian, gay, bisexual, transgender, or gender nonconforming are increasingly overrepresented.[34] Girls in the juvenile justice system and the child welfare system (known as the dual-system) are also overrepresented [35] and particularly vulnerable to the impact of detention. Having multiple child-serving institutions and systems fail these girls breaches children’s trust.[36] The National Child Traumatic Stress Network has rightly argued that such a breach of trust in the social contract around child protection can profoundly damage children’s post-trauma adjustment.[37]
Incarceration Alternatives
When the first juvenile justice system was introduced in Illinois in 1899,[38] it was intended to be an individualized, needs-based alternative to the adult system. However, the vision for a system that meets children’s unique developmental needs has failed to materialize, with the continued practice of incarcerating children the clearest failure of all. For girls who engage in trauma-induced offending, incarceration has been used as a punitive and damaging substitute for the care and protection system. It appears that the courts, while perhaps well intentioned, have responded to girls’ delinquent behavior with incarceration as a protective measure, without understanding the further damage caused by incarcerating girls with histories of trauma, abuse, and deprivation.
“Girls’ Courts” are one mechanism for better educating judges and the courts on this issue. An estimated 20 specialty Girls’ Courts have emerged across the United States in the past two decades.[39] The model seeks to promote relationship continuity, safety, and empowerment when responding to girls’ criminal offending.[40] Typically, one judge oversees all girl cases to provide continuity, which in some cases extends to consistency among court personnel, prosecutors, and public defenders.[41] Evidence of their effectiveness is forthcoming. Girls’ Courts are currently under evaluation by the Office of Juvenile Justice and Delinquency Prevention,[42] catalyzed by concerns that Girls’ Courts may actually “widen the net,” causing more girls to have contact with the juvenile justice system where minor offenses would otherwise not have led to court involvement.[43] Evaluations of the Hawaii Girls’ Court from 2005 to 2011 show that participants are less likely to offend but more likely to be admitted to detention than their non–Girls’ Court peers.[44] For the Girls’ Court model to be effective, it must be driven by an overriding mission to divert girls from incarceration wherever possible and accompanied by effective and accessible alternatives to incarceration.
Establishing high-quality, community-based alternatives is arguably the most effective means of reducing the incarceration of girls. The 2012 Report of the Attorney General’s National Task Force on Children Exposed to Violence found that most youth, and most girls in particular, do not pose a significant public safety threat and would be better served in non-residential treatment facilities close to their own homes.[45] For example, using outreach and family engagement services with girls who have run away from home to escape family conflict is a more effective response than detention in addressing the root cause.[46] Short-term respite care, which provides temporary, supervised accommodation for girls, is also useful for diffusing family conflict by providing a “cooling-off” period and a plan for family reunification.[47] In addition, short-term shelters can also be an effective alternative to detention for girls who lack family willing to keep them at home while court cases are being resolved. The use of short-term shelters avoids the damage caused by pulling girls out of their communities and creating further disruption in their lives.[48]
Better coordination and collaboration across the juvenile justice, child welfare, and public health systems is also necessary in order to prevent judges from incarcerating girls because they feel they have no alternatives available.[49] Often, alternatives do exist in the community but require better interagency communication and planning. For example, Wraparound Milwaukee, introduced in 1995, has reduced the use of incarceration by using an individualized and holistic care model that addresses all aspects of the child’s well-being. [50] Children are referred to the program by the courts, where a care coordinator then works with the child and his or her family to access an expansive network of services such as mental health therapy, substance abuse treatment, crisis intervention, in-home therapy, family and parental supports, and life skills development. Wraparound Milwaukee’s recidivism rate within a two-year time period is 14 percent.[51] This is consistent with other studies demonstrating that approximately 10 percent of children placed in community-based alternatives are re-arrested within two years, compared to 50–70 percent of children sentenced to juvenile detention facilities.[52]
Another promising alternative is the PACE Center for Girls in Florida, which similarly prioritizes a holistic approach to mitigate the underlying issues that girls involved in the juvenile justice system often face.[53] The program has 19 non-residential facilities across the state, providing academic classes, individual assessment and counselling, gender-specific life-management training, and college and career planning services.[54] Prior to entering PACE, 26 percent of girls had criminal involvement; after PACE, just 9 percent of girls did.[55] The program is offered to girls aged 11–18 who have been referred by the Florida Department of Children and Family Services, school personnel, community-service agencies, and parents.[56] For such programs to operate as true alternatives to detention, the courts must be aware of the options available and be given the authority and discretion to refer cases.
Conclusion
As Angel’s tragic case and the research demonstrates, incarceration is particularly harmful for girls, exacerbating the abuse and trauma that likely led to their entry into the criminal justice system in the first place. By continuing the practice of imprisoning girls, the United States is criminalizing the same children it failed to protect from harm.
The success of community-based alternatives like Wraparound Milwaukee and the PACE Center for Girls in Florida provides a hopeful path forward for reducing girls’ incarceration. The individual successes of these programs are supported by a growing body of research demonstrating that for many juvenile offenders, lengthy placements in detention fail to produce better outcomes than the alternatives available.[57] Establishing more high-quality, community-based alternatives; educating the courts; and improving interagency coordination will help girls like Angel receive the treatment, rather than punishment, they deserve.
Sibella Matthews is a second-year master in public policy student at the John F. Kennedy School of Government at Harvard University and previously worked as a lawyer and state policy advisor. Sibella has experience advising governments in Australia and the United States on issues related to criminal justice, children’s rights, and gender equality.
Edited by Steven Olender
Photo: Shadow of a young girl. // Credit: sarah from Flickr
[1] Francine Sherman and Annie Balck, Gender Injustice: System-Level Juvenile Justice Reforms for Girls, (Portland, OR: The National Crittenton Foundation, 2015), 13.
[2] “National Crosstabs,” Easy Access to the Census of Juveniles in Residential Placement (EZACJRP), last updated 1 June 2017, accessed 27 January 2018, https://www.ojjdp.gov/ojstatbb/ezacjrp/asp/selection.asp.
[3] Paulo Sérgio Pinheiro, “Violence against Children in Care and Justice Institutions” in World Report on Violence against Children (Geneva, Switzerland: United Nations, 2006), 191.
[4] Liz Watson and Peter Edelman, “Improving the Juvenile Justice System for Girls: Lessons from the States,” Georgetown Journal on Poverty Law & Policy 20, no. 2 (2013): 1.
[5] Malika Saada Saar et al., The Sexual Abuse to Prison Pipeline: The Girls’ Story (Washington, DC: Human Rights Project for Girls, Georgetown Law Center on Poverty and Inequality and Ms. Foundation for Women, 2015), 7.
[6] “Girls, Status Offenses and the Need for a Less Punitive and More Empowering Approach,” Emerging Issues Policy Series, SOS Project, no. 1 (013): 2.
[7] Jyoti Nanda, “Blind Discretion: Girls of Color & Delinquency in the Juvenile Justice System,” UCLA Law Review 59 (2012): 1528.
[8] Francine T. Sherman, “Justice for Girls: Are We Making Progress?” UCLA Law Review 59 (2012): 1586.
[9] Sandra B. Simkins et al., “The School to Prison Pipeline for Girls: The Role of Physical and Sexual Abuse,” Children’s Legal Rights Journal 24, no. 4 (2004): 57.
[10] Sherman, “Justice for Girls,” 1619.
[11] Sherman, “Justice for Girls,” 1619.
[12] “Girls, Status Offenses and the Need for a Less Punitive and More Empowering Approach,” 2.
[13] Sherman, “Justice for Girls,” 1586.
[14] Saada Saar et al., The Sexual Abuse to Prison Pipeline, 12.
[15] UN Committee on the Rights of the Child (CRC), “General Comment No. 10 (2007): Children’s Rights in Juvenile Justice,” 44th Session CRC/C/GC/10 § (2007).
[16] Saada Saar et al., The Sexual Abuse to Prison Pipeline.
[17] Saada Saar et al., The Sexual Abuse to Prison Pipeline, 8.
[18] Saada Saar et al., The Sexual Abuse to Prison Pipeline, 5.
[19] Saada Saar et al., The Sexual Abuse to Prison Pipeline, 9.
[20] Shari Miller, Leslie D. Leve, and Patricia Kerig, eds., Delinquent Girls: Contexts, Relationships, and Adaptation (New York: Springer New York, 2012), 44.
[21] Simkins et al., “The School to Prison Pipeline for Girls,” 56.
[22] Nanda, “Blind Discretion,” 1529.
[23] Michael T. Baglivio et al., “The Prevalence of Adverse Childhood Experiences (ACE) in the Lives of Juvenile Offenders,” Journal of Juvenile Justice 3, no. 2 (2014): 13.
[24] Miller, Leve, and Kerig, Delinquent Girls, 45.
[25] Saada Saar et al., The Sexual Abuse to Prison Pipeline, 14.
[26] Saada Saar et al., The Sexual Abuse to Prison Pipeline, 14.
[27] Robert L. Listenbee Jr. et al., Report of the Attorney General’s National Task Force on Children Exposed to Violence (Washington, DC: Office of Juvenile Justice and Deliquency Prevention, 2012), 175.
[28] Listenbee et al., Report of the Attorney General’s National Task Force, 178.
[29] Sherman and Balck, Gender Injustice, 11.
[30] G.J. Mazza, ed., Report on Sexual Victimization in Prisons and Jails (Washington, DC: Review Panel on Prison Rape, US Department of Justice, 2012).
[31] Lisa Pasko, “Damaged Daughters: The History of Girls’ Sexuality and the Juvenile Justice System,” Journal of Criminal Law and Criminology 100, no. 3 (2010): 1125.
[32] Pasko, “Damaged Daughters,” 1126.
[33] “National Crosstabs.”
[34] Saada Saar et al., The Sexual Abuse to Prison Pipeline, 7.
[35] Carly B. Dierkhising and Christopher Edward Branson, “Looking Forward: A Research and Policy Agenda for Creating Trauma-Informed Juvenile Justice Systems,” Journal of Juvenile Justice 5, no. 1 (2016): 22.
[36] Erna Olafson, Jane Halladay Goldman, and Carlene Gonzalez, “Trauma-Informed Collaborations Among Juvenile Justice and Other Child-Serving Systems: An Update,” Journal of Juvenile Justice 5, no. 1 (2016): 2.
[37] Olafson, Halladay Goldman, and Gonzalez, “Trauma-Informed Collaborations,” 2.
[38] Pinheiro, “Violence against Children in Care and Justice Institutions,” 192.
[39] Julianne Hill, “Girls’ courts under scrutiny,” ABA Journal, November 2017, accessed 26 February 2018, http://www.abajournal.com/magazine/article/girls_courts_under_scrutiny.
[40] Sherman and Balck, Gender Injustice, 10.
[41] Sherman and Balck, Gender Injustice, 10.
[42] Hill, “Girls’ courts under scrutiny.”
[43] Sherman and Balck, Gender Injustice, 10.
[44] Sherman and Balck, Gender Injustice, 10.
[45] Listenbee et al., Report of the Attorney General’s National Task Force, 182.
[46] Sherman and Balck, Gender Injustice, 29.
[47] Sherman and Balck, Gender Injustice, 29.
[48] Nancy L. Fishman, “Reducing Juvenile Detention: Notes from an Experiment on Staten Island,” New York Law School Law Review 56 (2011): 1475–1635.
[49] Sherman and Balck, Gender Injustice, 49.
[50] “Wraparound Milwaukee,” Wraparound Milwaukee, accessed 28 January 2018, http://wraparoundmke.com/.
[51] Bruce Kamradt and Pnina Goldfarb, Demonstrating Effectiveness of the Wraparound Model with Juvenile Justice Youth through Measuring and Achieving Lower Recidivism (Baltimore, MD: The Technical Assistance Network for Children’s Behavioral Health, 2015.
[52] Pinheiro, “Violence against Children in Care and Justice Institutions,” 200.
[53] Fight for Our Girls: Applying an Intersectional Lens to Girls of Color Facing Status Offenses (Washington, DC: Center for the Study of Social Policy, 2017).
[54] Fight for Our Girls, 10.
[55] 2016 Impact Report (Jacksonville, FL: PACE Center for Girls, 2016).
[56] Larry J. Siegel and Brandon C. Welsh, Juvenile Delinquency: Theory, Practice, and Law, 12th edition (Boston: Cengage Learning, 2014), 270.
[57] Re-Examining Juvenile Incarceration: High cost, poor outcomes spark shift to alternatives (Washington, DC: The Pew Charitable Trusts, 2015).