NCSL Podcasts

Young People in the Justice System | OAS Episode 183

Episode Summary

Legislatures in recent years have focused considerable attention on bills related to juvenile crime. In 2022, for example, there were nearly 750 bills related to juvenile justice introduced in state legislatures and 189 of those measures were enacted. While there are headline-grabbing stories about youth crime and localities where there are spikes in youth crime, the overall rate of violent crime by young people as of 2020 has seen a 78% decline since 1994, the peak year for such crime, according to the Office of Juvenile Justice and Delinquency Prevention at the U.S. Department of Justice Senator Whitney Westerfield, a Republican from Kentucky, joined the podcast to discuss how legislatures are responding to the issue. Westerfield, who has worked on juvenile justice related legislation for more than a decade, said the statistics show youth crime in his state is not surging. But nonetheless, there are many voices both in the legislature and in the community, calling for harsher treatment for youth offenders. Another guest on the show is Dick Mendel, a senior research fellow for youth justice at The Sentencing Project, and author of the recent report, “Why Youth Incarceration Fails: An Updated Review of the Evidence.” The report points to a number of reasons why locking up young people does not make society safer and damages the young people caught up in the system.

Episode Notes


Episode Transcription

Ed:      Hello and welcome to “Our American States,” a podcast from the National Conference of State Legislatures. This podcast is all about legislatures, the people in them, the policies, process, and politics that shape them. I’m your host, Ed Smith. 


WW:   I’m telling you to avoid the easy political path and take the much harder principle policy path. But one of those not only works in the short term but pays far greater dividends over the long run for your people and your public safety as a state.


Ed:      That was Senator Whitney Westerfield, a Republican from Kentucky and one of my guests on the podcast to discuss juvenile crime and how legislatures are responding to the issue. 


Legislatures in recent years have focused considerable attention on bills related to juvenile crime. In 2022, for example, there were nearly 750 bills related to juvenile justice introduced in state legislatures, and 189 of those measures were enacted. While there may have been headline grabbing stories about youth crime, the overall rate of violent crime of young people as of 2020 has seen a 78% decline since 1994 the peak year for such crime according to the Office of Juvenile Justice and Delinquency Prevention at the US Department of Justice. 


            Westerfield who has worked on juvenile justice related legislation for more than a decade said the statistics show youth crime in his state is not surging. But nonetheless, there are many voices both in the legislature and in the community calling for harsher treatment for youth offenders. 


            My other guest is Dick Mendel, a senior research fellow for youth justice at The Sentencing Project and author of the recent report “Why Youth Incarceration Fails: An Updated Review of the Evidence.” The report points to a number of reasons why locking up young people does not make society safer and damages the young people caught up in the system. Here is our discussion starting with Dick Mendel.


            Dick, thanks for coming on the podcast.


DM:    Well thanks for having me.


Ed:      So, you were the author of a recent report “Why Youth Incarceration Fails:  An Updated Review of the Evidence.”  And this report points to a number of reasons why locking up young people is not good for society at large and does real damage to young people. It also comes after a couple of decades of brain research that’s changed the way we think about young people in crime. And at the same time, there is a real spotlight on crime and public safety and at least some of the focus on that is on young people. So maybe you could start with kind of a high-level summary of what the key findings were of your work.


DM:    For a very long time, the evidence has been clear. I wrote a report 10 years ago looking at, 12 years ago, looking at youth incarceration and its effectiveness and it found that it was dangerous and ineffective. Lots of violence within the facilities and the outcomes were terrible at extraordinary costs for most young people most of the time who don’t pose an immediate threat to public safety. It’s much more effective, cost effective in terms of public safety to keep them in the community and work with them in their natural environments and allow them to grow out of any delinquent conduct rather than putting them in an institution that retards their development and makes them more likely to have trouble in the future. 


            Also, incarceration has terrible outcomes. Not just for public safety, but for the young people’s futures in terms of education, in terms of employment, in terms of health and mental health. Bad outcomes all around.


Ed:      We know, I think, most of our audience knows is that the U.S. incarcerates more people than any other nation. Is that a pattern that shows up in the juvenile system as well or is it a different thing altogether?


DM:    No. We continue to in youth as. … There’s a report in 2020 that the UN put out. I’m remembering its just six western Europe and Oceana we incarcerated 11 times something like 10 times more per eastern Europe, many times more, 3 time more than in Canada or South America or Mexico. And it’s we are outliers in the worse possible way. 


Ed:      We’ve got strong evidence here that incarcerating young people doesn’t reduce recidivism. What do we know about incarcerating young people?  What does it do?  What are the consequences?  You referred to a couple of those things. Maybe you could talk a little bit more detailed about what kind of consequences the evidence shows?


DM:    Well, I mean when you look at state level data and recidivism, 70 to 80% of the young people within three years get rearrested. When you look at sort of longer-term studies that have tracked young people’s futures into adulthood, the vast majority of them end up in the adult system. So, it’s really not very effective. There’s also again education and employment. Very low rates of return to school. And when they control for all kinds of background factors in the kids, the same kids if they get incarcerated versus not the kids who get incarcerated, a much lower odds of continuing, completing their high school education and much, much lower of going to college. Long-term earnings go down. It’s really bad outcomes all around.


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Ed:      Did you find any evidence of what can work in reducing juvenile crime and increasing public safety, reducing recidivism and this sort of thing?


DM:    Well, we know that even with serious juvenile offenders, most of them will age out of their delinquency, serious delinquency, within a couple of years. There is a very comprehensive study that followed that and most all of them, 90%, will do that. But incarcerating young people interrupts their development. I mean it’s very much tied to what is termed as the too complicated term called psychosocial maturation. But their ability to control impulses, to take a perspective, to take to stop, look and listen, to resist peer pressure. All those things develop naturally over time in a natural setting. But if you put them in an incarceration facility, it slows down their natural maturation and their capacity to develop those skills and to assist naturally as most young people do even if they do get into trouble in adolescence. 


Ed:      So, I think most of us who are not steeped into this kind of research think well the best way out of this kind of problem for young people is get a good job, get a decent education and then they can build their lives. But you found that being incarcerated means they have even less chance at being successful either in the workforce or in education. Can you talk about that a little bit?


DM:    We know that the young people’s brains people’s brains don’t fully develop until age 25 and that the characteristics of the adolescent brain involve a lot of thrill seeking. They involve the lack of the executive function and the ability to have those skills that will enable you to make good choices. When you incarcerate a young person, you slow that development. When you allow them to grow up in a natural environment with support in the community, it is much more effective. Again, the educational outcomes are better. The employment outcomes are better if they stay out of those facilities. Also, the experience of being in those facilities exposes young people to lots of violence, trauma, many, many terrible stories of abuse. 


Ed:      I was struck by the notion that there is real lasting damage both physically and mental health to these folks. Why is that?


DM:    Twenty-nine states and the District of Columbia have had documented abuse and systemic and recurring maltreatment of young people in their facilities just since 2000. More than 40 since the 1970’s states it’s a very difficult thing to operate safely operate a facility full of troubled, troubled adolescents and do it in a safe and constructive way. It’s not a good way to address their behavior and is dangerous and abuse happens youth are not kept safe from each other, and staff abuse of young people both very, very common in these kinds of facilities. It’s very hard to keep a healthy and safe environment. 


Ed:      Well, I was a newspaper reporter in California, I used to cover California prisons and I was in and out of San Quentin a number of times to do stories there and the fact is most of those people are pretty young. Many of them were at the time and you can see if conditions in any of these facilities are even close to what occurs in a state prison it’s hard to imagine people not being very badly affected by that. You also found that the abuse falls disproportionately on black and other young of color and is that occurring because the population of those folks is larger?


DM:    Yeah, that’s what I meant. It’s not that within the facilities--I don’t think there is evidence that within the facilities the kids of color are being more abused. It is just that the kids of color are overwhelmingly populating these facilities. The system is systemically biased. The chances of being incarcerated are much, much higher for kids of color, especially black kids.


Ed:      Our audience, of course, is largely legislators, legislative staff and I wonder in addition to suggesting that they read this report, what other thoughts would you like to leave them with as they might encounter this kind of legislation or be asked to vote on it or even are interested in working on legislation related to juvenile justice?


DM:    Well, the report that you referred had some recommendations. I’m actually working on a follow up report of what do we do instead of incarcerating young people and there are many, a number of model programs interventions for the highest risk young people that you can use to keep them safe and change the behavior patterns and make the community safe without putting them into a facility most cases most of the time. But there is also a lot of policies that you can enact. Many states or a number of states have just said incarceration needs to be reserved only for kids who have committed violent felonies or felonies only and not send kids to facilities for misdemeanors or for violating probation orders. Things that don’t really involve a safety threat to the community and that’s one of the things you can do. You can incentivize local courts. In many states for the local court, it’s free to send them into the state institution, but it costs the local counties money to provide the assistance that is much cheaper overall, but not for the county, and much more effective. But their incentive currently is to send them to the state. And then at the local level within the justice system, you can have dispositional guidelines and say incarceration should be reserved for these people, these kids, but not these kids. 


            Rules. You can have changed your probation system so that you are not focused on giving kids a lot of rules most of the time, most places. Probation involves a lot of rules and then compliance monitoring and punishment for non-compliance with some help on the side. You could make probation mostly a helping system and you can also divert most of the kids or many of the young people who are currently addressed, their behavior is addressed by the court, and it doesn’t need to be. The court is not a helpful place. There are lots of studies that say that kids who are diverted from the court process or are never brought into the court the justice system for adolescent, typical adolescent behavior do much better if they never touch the courts. In many countries, 70, 80% of the young people who are apprehended, the misbehavior is addressed outside the court system. In the U.S., it’s less than half. And it is not increasing. You can divert the kids also the use of detention when the kids are first arrested and brought into the court system. If you detain them and put them in a locked cell right away, their chances of being locked up and disposition after their court hearing is much, much higher. It is bad for the kids. It’s bad for their education. It disrupts their lives. So, you can reduce the use of detention and find alternatives to that. So, there’s many, many things that states can do and that local communities can do. 


Ed:      Well, we will be sure in the show notes to link to your report and if there’s additional material available before we go live with this, we will include that too. Dick, thank you very much for taking us through this report and for this great research. Take care.


DM:    Well, thank you so much for having me. 


Ed:      I’ll be right back after this short break with Senator Whitney Westerfield of Kentucky.


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Ed:      Senator Westerfield, welcome back to the podcast. 


WW:   Thanks for having me back on Ed. 


Ed:      Well Senator, I know you’ve done a lot of work over the years around criminal justice issues in Kentucky and a couple of years ago we talked about some police accountability legislation down there in Kentucky. And I really appreciate you coming back on the show. I wonder if we could start with a little background in your involvement looking at juvenile justice in Kentucky and what kind of steps have been taken over the last number of years there in your state?


WW:   Juvenile justice is something that I didn’t know would be near and dear to my heart when I ran for the seat 11 years ago. But brand new on the job, it became something that has consumed most of my tenure in the legislature. We overhauled our juvenile code in 2014. That was a bill that I filed … in Kentucky that took a huge effort from a lot of people to write and then enact. Various agencies have had roles in that. The bill has been one of most successful. We’ve been able to do a lot of good and improve our system tremendously. But there have been edge cases and little pop-up situations here and there that have caused people, legislators in particular, to get contacted by their constituents. Really a bill started in 2021 that really wanted to hit the most violent offending youth with a pretty hard hammer. That has opened up a big chunk of the conversation. And then something that hopefully not other states are dealing with, but Kentucky certainly is. Our facilities here in Kentucky, our juvenile justice facilities, detention facilities have been failing at the most fundamental level such that we’ve had riots and security breaches at multiple facilities on multiple occasions. In fact, we’ve had some of the minors, some of the students that are kept in these facilities, assaulted physically. One of them assaulted sexually during one of these security failures. So, there was a heightened focus and prioritization of the juvenile justice landscape of policy over the course of really 2021 and again here in 2022 and then 2023 in this year’s regular session. So, we’ve spent a lot of time talking about it; not all of it good.


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Ed:      Looking back at that, that was almost 10 years ago when that initial legislation passed, and we’ve been through a pandemic. It’s been a tough several years and crime is on the rise.


WW:   Well, I’m going to disagree with that in at least in Kentucky, juvenile crime is not on the rise. Every time one of the legislators in Kentucky wants to stand up and talk about how they are seeing some explosive growth in juvenile violent crime, they are wrong. The data in Kentucky doesn’t back that up. If you look at a 10-year trend, it is going down. Even if you might see a slight increase this year, we are not at all on some sort of upward trajectory of juvenile crime generally or of juvenile violent crime. Now that doesn’t mean that more attention isn’t being paid to it or more news stories aren’t being written to cover it and there is more talk about it. But it is important at least in Kentucky and I can’t speak for any other state, but in Kentucky our juvenile crime is not exploding. So, it is frustrating because that drives the narrative right. We particularly in a Republican-controlled legislature, there is this desire to be very tough on the bad guys no matter who the bad guy is or no matter how old they are. If someone asserts that violent crime is just exploding, it’s all over the place. We are seeing juveniles act up everywhere, it’s important to set the record very straight. It’s not happening. That doesn’t mean it hasn’t happened that there are cases that you can find in different parts of Kentucky. I’m sure there are. I know there are. And those cases have to be dealt with appropriately. There must be consequences for the behavior. But we aren’t seeing a juvenile crime explosion in Kentucky. It’s just not there. 


Ed:      Well, that is a great point because I think you are right. That is the narrative around the country, and I think that if we are seeing it in one community, we assume it’s happening in every community.


WW:   Yeah, the key there for other states, they need to nail down exactly what’s happening. I’ll get into the details even further Ed. I think it is important that you identify exactly what we are talking about. Here is a pet peeve of mine here in Kentucky, the news anchors particularly in Louisville where a lot of this is happening and other urban centers, but Louisville in particular they like to refer to the crime of carjacking. Now you and I could probably come up with a layman’s definition of what carjacking is. You can cite other statues in other states maybe even under the federal law that defines carjacking as a specific act with certain elements. It doesn’t exist in Kentucky. We have robbery. We have theft. We have assault. So, there are a blend of charges that might apply. Here’s one telltale sign in Kentucky. When someone says we’ve got an “X” number of carjackings that happened. Full stop. Hang on. Let’s identify exactly what kind of duck we are talking about. Are we talking about robbery first. Are we talking about assault first. Or both. And what’s the disposition of those cases. If I can give advice to any legislators or staff that are listening to this, track your data down and have it down pat. Know exactly what your landscape looks like. Otherwise, you are doing what legislators over time since the beginning of time are quick to do which is to kneejerk react and pass policies based on one off cases here or there or the most notoriety gang cases here or there when that isn’t exactly what the landscape looks like. If your landscape does see a rise in crime in juvenile populations, then you need to respond to that appropriately. But that converse of that is true, if you are not seeing that explosive rise in crime in some way, then your response should be tailored to what you’re seeing.


Ed:      Yeah, I think the expression is legislation by headline.


WW:   Oh man. I’ve never heard that before, but that is right on the money.


Ed:      Yeah, I have seen that over the years where you had some particular horrendous case, and it ends up coming up with a legislative solution for something that may not be the problem you are actually facing.


WW:   You know sometimes you are able to get something through that actually works really well and addresses those edge cases when they pop up, but more often than not it’s an overreaction and now you’ve just done something worse. You’ve responded to whatever bad thing happened, but now you’ve made five problems in the same time that you’ve solved the one. 


Ed:      Let me ask you about places where young people are incarcerated. Earlier on this podcast, I spoke with Dick Mendel who is the author of a recent report that lays out the research and data showing why incarcerating young people is not only detrimental to the community at large, but how juvenile detention can really have lasting downstream consequences for the young people in that system. As a legislator, what is your current take on the climate surrounding juvenile justice and specifically the attentions being placed on public safety and crime and on incarceration.


WW:   It goes back to what we’ve been talking about. There is an overriding desire. A compulsion to be really swift and harsh on juvenile offenders. It goes back to when we worked on juvenile justice reform in Kentucky back in 2013 and enacting it in 2014. I remember a school administrator coming to me in my office and … would say in my office what they would never say in a committee room which is they wanted a swift hammer of justice. We want to get them out of our hair into detention facilities. We don’t have to deal with them. And then there was another one who actually did testify. A school administrator who testified and he said look when Suzy Q does something bad on a Friday, we lock her up over the weekend and she doesn’t set a toe out of line on Monday. They are speaking from those one-off sort of situations. That sort of detention environment though for most of these kids makes their conduct far, far worse. 


            What is so tricky is to convince legislators that what you are doing that feels so safe and so certain and such the right idea in the present moment has horrible consequences as you just put it downstream. Apart from that by the way, it’s exceedingly expensive. In Kentucky a decade ago, it cost just over six figures per bed per year to detain juveniles. It’s about three times as expensive as it takes to detain an adult. And we were on the cheaper end. I remember other states having substantially higher figures than we did a decade ago. So, it’s expensive and it doesn’t give you the results that you want because most of the kids that you lock up. Most of the kids that end up in a facility that we are talking about, Ed, are the kind with a guard booth in the middle that has the controlled room with the doors that lock on sequence and with certain keys and so forth and authority that it looks like a jail. And they’ve got razor wire outside. It is a prison facility. They may have classrooms and they may have some sort of exposure however slight to something that resembles school, but it’s a prison. And when you put those kids in that facility, they are more likely, far more likely to come back to that sort of facility and to continue down the path and behavior that leads them to the adult variety of those facilities. 


Ed:      Well, that is certainly what this research review showed as well as young people being abused as you in these facilities at times as you mentioned there in Kentucky. But what do you hear from colleagues and constituents?  Do you hear sort of a balance conversation about this?  Some people sort of more in the –no?


WW:   No. Unfortunately, I don’t see much of a balance there. There is an overriding desire to be really harsh on these kids, to lock them up, to punish them. The bill that we have on its way to the governor, right, in Kentucky’s House Bill 3, which is a lot better than its 2022 version that I along with a lot of other people helped to stop from proceeding through the process. But in that bill contains a 48-hour mandatory hold period for kids that commit the most violent offenses. I don’t like that for reasons I’ve just now described, but I got a big concession there and I want to get the sponsor some kudos for acknowledging that these interventions work. I said I can live with 48 hours so long as you also couple that detention with behavioral health interventions. If you are going to respond to that child through a 48-hour detention hold and we can all safely assume some of these kids are going to spend a lot longer than 48 hours in that mandatory hold. There is no place for that kid to go home to, I know exactly where the kid is going to end up staying. But as long as you couple that time off the street and away from any negative influences with some positive mental health resources and interventions hopefully bringing the parents along for that ride and responding holistically to that child, you may actually make a good difference. You might actually change their trajectory a little bit. It also has some language that I included that allows nonprofits and other organizations to come in and administer those kids. Not just for that time when they are in the hole, but also help them in the transition and make sure that there is continuity of care once they leave that facility while their charges are pending. If we can at all get a foot in the door there, we can make a difference other than just keeping them off of the streets for 48 hours. And there is some public safety value in that. But if all you are doing is holding them, all you are doing is postponing when they come back and do something worse. We have to respond with something more meaningful. Now, the gut reaction from people in response to your question yeah. Let’s lock them up. They need to be off the street. Get them away from whatever. And most people don’t have that secondary thought about the kind of behavior and health interventions I’m talking about. But once you have time and sit down and explain the value of that, I think most people agree with it. The fact that the sponsor agreed to include that language is a positive sign so it’s not all gloom and doom, but you do have to put up a bit of a fight to get those sorts of policies in place. 


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Ed:      Yeah, I wanted to ask you about that. How do you strike this balance between responding to in some cases what might be legitimate concerns, but also wanted to make sure that we are not making the situation worse. It sounds like what you are saying is that it is really a matter of getting a lot of the different stakeholders involved to address this problem and to understand that just locking up is not the end.


WW:   Not only that, but you’ve got to track the data. You got to make sure you got all the people making contributing to the policy process, but you got to look at the numbers after the fact. This is a new policy. We are actually delaying that 48-hour detention implementation about a year because of the security issues that we’ve got in our facilities in Kentucky, we didn’t feel like we could burden them with another 48-hour mandatory hold for any number of kids when they can’t manage the group, they’ve got today without the security breaches. So, until they build up their staff and they get security protocols in place and make physical plant upgrades that they are in dire need of, we’re delaying that part. But importantly follow what your bills do after you’ve passed them. You’ve got to pay attention to that data going forward.


Ed:      Let me ask you this. You’ve got so much experience with this. What do you tell your colleagues around the country because we know everybody is looking at this. I think one suggestion you’ve made is understand the data before you do anything. Be thoughtful about it. What else would you share with legislators and legislative staff working in this area?


WW:   Be persistent to do what works and avoid at all costs the temptation to do what feels right at the moment. It is so easy to just lock these kids up. In fact, if I had never raised a single thought or a single objection, the language would have gone through just fine. It would have passed with flying colors just as it did, it would have done it a year ago. But I did raise objections not because holding them doesn’t have some value and there are instances where it could have value. But you have to be the voice of sometimes the contrarian voice and bring up the concerns that are there and press for changes based on what you know to be true and accurate. I know to be true and accurate in Kentucky and in around the country that if you just detain kids, you don’t do anything else but hold them, you are more likely to create future criminals. There is just no other way to put it. And other members of the legislature you deal with may stick their head in the sand, might not ignore that data, might ignore it, might not care about it. You’ve got to be the one that sticks up and says this can’t work by itself not in isolation. Now if you couple it with two or three other things and other interventions to respond to the behavior, it turns out there is an overwhelming number of legislators in Kentucky that do support those sorts of interventions. They fully agreed in one or two votes unanimously agreed that these sorts of interventions are worth trying and worth doing. We’ve done it on the adult side of Kentucky. There is no reason why you wouldn’t do it on the juvenile side so I would just encourage legislators look at your numbers and follow your data that you know to be the truth and then be persistent. Keep being the squeaky wheel to make sure that the changes that go through are not some sort of knee jerk reaction. I’m telling you to avoid the easy political path and take the much harder principle policy path, but one of those not only works in the short term but pays far greater dividends over the long run for your people and your public safety as a state. And the other one just gives you short term campaign points and public safety victory that is very short sided. I don’t know how else to put it than that. 


Ed:      Well, I think that is great advice and I appreciate as always, your very thoughtful consideration of these things and sharing what your experience has been. Take care.


WW:   Thank you Ed.


Ed:      I’ve been talking with Dick Mendel of the Sentencing Project and Senator Whitney Westerfield of Kentucky about juvenile justice. Thanks for listening.


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You can check out all the podcasts from the National Conference of State Legislatures by searching for NCSL podcasts wherever you get your podcasts. Tim Storey, NCSL’s CEO, hosts “Legislatures:  The Inside Storey” where he focuses on leadership and legislatures. The “Our American States” podcast dives into some of the most challenging public policy issues facing legislators. On “Across the Aisle” host Kelley Griffin tells stories of bipartisanship. Also check out our special series “Building Democracy” on the history of legislatures.