January 2011 • Volume 99 • Number 1 • Page 8
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What if it Were Your Child?
What would the juvenile justice system look like if we knew our sons, daughters, and grandchildren would go through it?
Remember the really stupid things you did as a teenager? If pressed, virtually every ISBA member would have to admit to reckless if not sometimes dangerous or even very serious mistakes we made as young people. Many of us privately take solace that our worst misdeeds weren't exposed. Or, if our "bad" act was discovered, we can remember being held accountable by our families, by our school, or by others in our community.
And somehow, we were given a second chance to grow up and do better. But we may also recall then breathing a huge sigh of relief. Without that second chance, we might not be the lawyers and judges we are today.
So what if your child did the things you or your friends did as teenagers? What if he or she got caught? What if your child or grandchild had mental health problems, or became involved in drug, and/or alcohol use or abuse, or got into a fight on school property?
What would you do if your child or grandchild were arrested and charged with a delinquent or criminal offense? Would you want your son, daughter, or relation to be questioned by police officers without an attorney or other adult present? Would you want your grandchild to be sent to an Illinois youth prison, far away from his or her community, school, and family?
Would you want your child to face a prisoner review board on his or her own, with no attorney and no advocate by his side? Would you want your son or daughter to be on parole for years, with a long list of mandates and requirements and supervised by a parole agent from the Illinois Department of Corrections? Would you want your child to go back to a youth prison, without ever appearing before a judge or seeing an attorney, for breaking the rules of parole?
Or - if your child got into trouble - would you want something different? What would that be? What would the juvenile justice system look like if we designed it with our own children in mind?
The juvenile court is founded on the fundamental idea that young people are different from adults in many ways. Their brains operate differently. They make decisions differently and often struggle with impulse control. They need caring adults in their lives to provide structure, guidance, and support. They have less capacity to weigh the long-term consequences.
On the other hand, teenagers are capable of tremendous positive change, rehabilitation, and growth. Those of us who have had teenagers in our lives know this to be true. These facts are, in many ways, embedded in the Illinois Juvenile Court Act and, most recently, in the Unites States Supreme Court decisions in Roper v Simmons and Graham v Florida. That clear recognition of youth/adult differences under the law is promising and powerful.
But the fact remains that what we know about young people, their needs and their differences from adults, is often not manifested in our policies and practices in the juvenile justice system. Young people can be and are often picked up at school, undergo arrest and police questioning, and all without any adult guidance or support. What 14-year-old knows his or her legal rights or how best to communicate appropriately with police officers?
Too often our teenagers face detention hearings where a judge decides whether they go home or remain locked up while awaiting adjudication, and all without a meaningful chance to talk to their parents or to an attorney. Far too many youth found delinquent are then sentenced without prosecutors, judges, or defenders having the information provided them about underlying mental health or substance abuse issues, schooling shortfalls, or learning disabilities. These are the very types of services that could address those underlying needs without resorting to incarceration.
Youth sentenced to the Illinois Department of Juvenile Justice most often suffer a bleak existence. These "youth centers" tend to be far away from their families, with limited or non-existent transportation. Most such facilities have the look and feel of adult prisons, with grey walls, cement-block barracks, confining cells, and razor-wire perimeters on the grounds.
Leadership and staff in these facilities readily acknowledge that schooling, mental health services, drug treatment resources, recreational activities, and vocational training programs are far too limited. There is little planning or preparation for a successful release and return home for such youth. The "rehabilitation" component is simply missing.
We can do better
The processes by which youth are either released or retained for extended periods are based on an adult model and rely upon the Illinois Prisoner Review Board, a body created to decide the fates of adult prisoners in correctional facilities. Few youth have parents present with them at their parole hearings. Even fewer have an adult present for parole revocation hearings.
And thus far, after nearly six months of observations conducted by the Illinois Juvenile Justice Commission, it is reported that no youth has had an attorney or any legal help in making the case that he or she is ready for release. What 15-year-old is capable of representing himself or herself before a body of adults that decides whether such youth goes home or remains incarcerated? What does this tell a young person about the value we place on freedom, life, due process, and well-being? Is this the kind of system we believe in, as lawyers and judges?
The reality is that the vast majority of lawyers and judges and other juvenile justice practitioners - from police officers to parole agents - care about youth and want to do right by them. They recognize that youth make mistakes, sometimes serious ones. They know that youth need opportunities to learn, to go to school, to get treatment if necessary, to make amends for causing harm and to have a second chance at life.
But, like many states, Illinois has created a juvenile justice system that, too often, stands in the way of successful outcomes. A zero tolerance policy is really no policy at all - it is an abdication of our responsibilities to treat young people as individuals. Being tough on juveniles is not the same thing as being smart on crime. We apply adult models to youth, even though we know in our hearts - and from our statutes and case law - that youth are different.
It would be one thing if these "adultified" approaches worked. They don't. They don't change lives for the better. They don't enhance public safety. They certainly don't save scarce fiscal resources in the short term and exponentially heighten the demand for more resources in the long run.
We can do better.
The good news is that lawyers and judges play a fundamental role in making positive change, and we are equipped and ready for the challenge. In addition to protecting the most basic Constitutional and human rights of our young people - which is a laudable goal in and of itself - we as lawyers and judges can and must do even more and do so now.
Leading by example
In a forthcoming President's Page, we hope to provide some examples of lawyers across the state - many of them ISBA members -- doing just that in our communities. Across Illinois, lawyers and judges are renewing their interest, leadership, and dedication to juvenile justice. They are finding ways to be involved, to be active in the lives of young people, and to make sure that young people have second chances to be everything they have the potential to become.
Some of these lawyers and judges are leading juvenile justice councils, which foster community collaboration and planning to understand and respond to the problems of young people in the community, to devise local alternatives to incarceration, and to then build on each youth's talents and strengths. Others are representing individual youth at expungement hearings, working to provide such youth the "fresh start" they may deserve by clearing their records of arrests that were never even prosecuted.
Lawyers are building coalitions to improve the laws and policies that shape our justice system and influence the lives of young people across the state. Others are training and organizing volunteers to visit and monitor the conditions under which our youth are detained and incarcerated. Training resources are being developed so that prosecutors, defenders, and judges all understand and apply the principles of adolescent development and "best practices" with youth in conflict with the law.
Still others are advocating with and for families, who are our most valuable allies in preventing and addressing juvenile crime in productive, restorative ways. Lawyers are getting involved in local school boards and advocating for enhanced learning opportunities for our youth, to keep them out of the juvenile justice system in the first place.
But, inevitably, some youth will become involved with law enforcement and the courts. So we pose again this question: What would you want the juvenile justice system to look like if you knew your child was going to go through it? And what will we, as a community of lawyers and judges, do to make this system of justice a reality for all young people, their families, and our communities?
Lisa Jacobs is program manager for Models for Change, a juvenile justice reform effort funded by the John D. and Catherine T. MacArthur Foundation and administered by Loyola University School of Law.