Long Term Goal
To dramatically decrease the number of children and youth with disabilities who are referred to the juvenile justice system as a result of system failure.
Incarcerating Children with Disabilities Does Not Make Them “Better” People
Our juvenile justice system must not serve as a ready feeder for the adult criminal justice system — providing a steady supply of children who are failed by other systems and end up incarcerated by default.
Incarceration of youth is questionable as a general practice. Recent scientific advances have shown that young brains do not function as adult brains do, so punishment using adult methods may be less effective for youth. This same body of research has shown us what methods and techniques work better in general with at-risk youth and that even very short stays in detention have a negative impact on them. It is even more critical to avoid when the child has a disability impacting behavior.
Some communities have already implemented new practices with good results. The legal system has begun to change as well. In fact, the U. S. Supreme Court has eliminated the death penalty for juveniles and juvenile life without parole.
But it’s not the same for everyone. The U.S. incarcerates juveniles unequally and as a result, improvements have bypassed some of our children and youth. Youth of color or from particular ethnic backgrounds and youth with disabilities are incarcerated at disproportionately higher rates. Prevalence studies have found that 65-70 percent of youth in the justice system meet the criteria for a disability, a rate that is more than three times higher than that of the general population. Additionally, at least 75 percent of youth in the juvenile justice system have experienced traumatic victimization, leaving them at-risk for mental health disorders such as posttraumatic stress syndrome.
The United States incarcerates more of its youth than any other country. As mentioned above, youth with disabilities and children of color are also disproportionately represented in the juvenile justice system. “As states have undertaken efforts to reduce disproportionate minority confinement for youth, they have found evidence that disproportionality occurs at every contact point within the juvenile justice system, from arrest to cases transferred to criminal court and not just at detention and correction.”
Prisons, jails and juvenile detention facilities have in many places become the new institutions. These new facilities do not treat our children any better than the old ones did. In many jurisdictions, education and habilitation have become less important than punitive so-called “behavior modification” regimes. Adult-like methods of punishment, such as solitary confinement, have become commonplace in many juvenile facilities. Solitary confinement (isolation) is even more brutal to young people than it is to adults.
Despite policy efforts such as the Prison Rape Elimination Act, juvenile detention facilities can be places where children and youth, many of whom were abused as small children, are physically, emotionally and sexually abused all over again. Vulnerable youth learn survival skills and coping mechanisms while in the system that increase the likelihood that they will re-offend upon release, feeding an adult system already crowded with prisoners who have disabilities. In short, it is often the case that youth with disabilities come out of the juvenile justice system worse off than they went in.
There remains an urgent need to protect children and youth with disabilities from unnecessary incarceration. When confinement is necessary, it is critical that youth are provided the services they need to grow and develop, as well as the education and rehabilitation necessary to rejoin their communities successfully.
Causes: Children with Disabilities Are Placed in the Juvenile Justice System Due to Failures in Other Systems
The causes of mis-incarceration often happen long before a child makes contact with the juvenile justice system. Students who are removed from school are more likely to enter the juvenile justice system, and school district discipline practices are one of the key intake routes into the School to Prison Pipeline (STPP). In fact, school staff refer students with disabilities directly into the juvenile justice system, through the use of such methods as arrests for school code violations, truancy actions, and disciplinary “tickets.” This happens even where there are laws and policies in place to prevent punishing children for disability related behaviors, and that require the school district to provide behavior related services.
Children with disabilities are removed from school for disciplinary reasons more often than other students. A data analysis released in August of 2012 makes this connection for children with disabilities. Applying these three lenses together – race, gender and disability — yields a more disturbing image than any one of the categories alone. The group that consistently has the highest rate of suspension is African American male students with disabilities. In some of the largest school districts in the U.S., suspension rates for this group reach more than 70% of their enrollment. As a result of a report by the Civil Rights Project and others, we know that a specific subgroup of children of color, those who are also children with disabilities, receive different treatment than their peers in public school. Not surprisingly, this is also the group represented at the highest rates in the juvenile justice system.
These suspension rates are inexcusable, given what we now know about practices that school districts may use to keep students with disabilities productively engaged in school, including such low cost innovations as positive behavior supports and interventions, quality teacher training and behavior planning. Diversion from the juvenile justice system through the provision of behavior services can work well for schools and students both.
When a student begins to have behavioral issues at school, a solid functional behavior assessment and positive behavior intervention plan can make a great difference in both improving the child’s behavior and teaching the child healthy alternative coping methods. The provision of “wrap around” community based services may also be a helpful support to the child, family, and school staff. In addition, if the youth later ends up in the juvenile justice system, those supports will be more easily accessed when he/she transitions out.
In short, the provision of special education services, and behavioral interventions at school can often prevent school removal and arrest.
Youth with disabilities may be arrested in the community for behaviors that appear concerning but are actually quite harmless. They may be arrested for behaving strangely or other actions that are not actually crimes. Police training can be successful at preventing negative police interactions under such circumstances. Disabilities may prevent youth from advocating appropriately for themselves at the time of arrest and/or for appropriate dispensation within the system. Youth with particular types of disabilities may be more likely to confess to a crime they did not commit, may not be able to express exactly what happened during an incident, or may be named by another youth in an attempt to deflect responsibility, and be unable to explain their perspective regarding an incident. Youth who have community based services, such as wrap around services and case management, may have a built in professional advocate to explain to authorities why the youth acts in a particular way and assist to divert them from arrest. However, these services are not uniformly available.
Due to the lack of appropriate services or the inability to advocate effectively on their own behalf, youth with disabilities may also be more likely to move deeper into the system than other youth. Juvenile defenders often lack the information they need to inform the court of the impact of a child’s disabilities. Some juvenile court staff express a well-meaning belief that the best way to ensure access to services and to get the attention of parents and caregivers is by bringing the youth into the juvenile justice system.
In addition, a child without disabilities may be more likely to be sent home by the court (remanded to parental custody) with a stern warning, while a child with disabilities who has a clear and unmet need for services remains in custody. In some states, “direct file” statutes permit youths to be tried as adults for certain offenses, making diversion more difficult. In addition, inadequate juvenile defense in some jurisdictions and basic unmet reasonable accommodation needs, such as the need for sign language interpreters, accessible public transportation, or courtroom accommodations, may cause the youth to be unable to access the court system effectively, resulting in missed court dates and related appointments.
Community Mental Health and Other Community Based Services
Long waiting lists for community based services, including access to evaluations, therapy, medication prescription services, and medication management, among others, may cause youth to be unnecessarily detained in the juvenile justice system or referred by school staff into that system. This referral may be due to a generally mistaken belief that contact with the juvenile justice system will expedite and shorten a youth’s wait for services.
Children who are wards of the state due to parental abuse or neglect are also more likely than other youth to end up in the juvenile justice system. Some reasons for this include a lack of services that will allow them to be successful in placement, and the lack of a continuum of placement options to meet their disability-specific needs. P&As also have had cases in which children who have not been accused of breaking any laws, are nonetheless housed with youth adjudicated delinquent, due to a lack of placement options.
For these reasons, youth involved in the child welfare system are detained in the juvenile justice system at an earlier age, more frequently, and for longer periods of time than youth with no child welfare involvement. Like “dual status” youth with both mental health and substance use disorders, youth who are involved in both the child welfare and juvenile justice systems are more likely to be treated harshly within the juvenile justice system. Their numbers tend to accumulate proportionately as youth remain longer in the system.
WHY DIVERSION MATTERS
If juvenile incarceration were of benefit to youth, mis-incarceration might be less of a concern – but this is simply not the case. Incarceration for the most part does not benefit youth, is expensive, and does not produce better outcomes. It is both unjust and inefficient to punish children who have not broken the law intentionally. For example, when a child with a disability is referred to the juvenile justice system for truancy, but the child has been unable to attend school because accommodations have not been made so he can attend school, punishment will not improve the child’s attendance. 
Once incarcerated, youth often leave these facilities worse, not better, off and often experience short-term and life-long adverse consequences. Confinement often disrupts any educational and vocational opportunities, medication management, and counseling they may be receiving. Even an interruption of a few days or weeks, coupled with the trauma of confinement, can cause disruptions in family and peer relationships. It can stall adolescent social and emotional development and result in relationships with negative peers, school dropout, and difficulty finding employment due to the stigma of incarceration.
Those who return home from detention because the charges are dismissed may be stigmatized by their arrest and struggle to cope with the long-term effects of confinement. Many problems that contribute to a youth’s maladaptive behavior, arrest, and confinement still persist when they return to the community — they still have low literacy, poor academic achievement, and difficulty managing their anger, emotions, and relationships. In addition, these youth now have another risk factor: contact with the justice system.
Incarceration is all too often ineffective in promoting public safety. It can result instead in a large number of youth cycling back into the justice system. The high recidivism rate for court-involved youth is strong evidence that incarceration is not effective in helping youth to get on track and become successful adults.
Juvenile facilities generally are not youth-centered, family-driven, or culturally sensitive. They are not nurturing environments where youth with disabilities can accomplish the developmental tasks and learn the skills needed to become productive adults. Not only are most secure facilities ill-equipped to meet the needs of youth with serious emotional and behavioral disabilities, standard therapies have not been normed for correctional settings where the emphasis is on physical control and punishment. Even worse, these facilities often are places where youth are exposed to physical and sexual violence. While exemplary juvenile justice programs do exist and youth thrive within them, such programs do not uniformly exist nationwide.
Fortunately, the pipeline which feeds children with disabilities into the juvenile justice system does not need to be a foregone conclusion. P&As and other advocates play a key role in ameliorating unnecessary and inappropriate school removals for children and youth with disabilities, preventing and diverting juvenile justice referrals of youth by school staff, and helping students meet with success at school. They also assist in obtaining appropriate community based services for youth with disabilities, both youth within and outside of the child welfare and juvenile justice systems, and work with public defenders and court staff to prevent injustices in the arrest and placement phases of adjudication.
The P&A network is well placed to do this work, currently representing thousands of children with disabilities every year. P&As and other advocates can help locate vulnerable youth, use data to determine systemic trends, educate lawmakers and the public, represent youth at the individual and systemic levels, and change damaging practices and unfair policies such as “zero tolerance” discipline codes.
Many P&As are already advocating on behalf of youth to divert them from contact with the juvenile justice system. By working in coalition with other interested stakeholders, including the racial justice community and juvenile defense bar, advocates also expand their capacity to serve youth.
 This report does not address the effectiveness of these methods as applied to adults.
 Phillippi, Stephen & DePrato, Debra, Innovation Brief: Model for Effective Implementation of Evidence-Based Practices, Models for Change, (December 12, 2013) , available at http://www.modelsforchange.net/publications/494. Because Kids are Different: Five Opportunities for Reforming the Juvenile Justice System, Models for Change Resource Center Partnership, (December 9, 2014) http://www.modelsforchange.net/publications/718.
 Barry Holman & Jason Ziedenberg, The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Facilities (Justice Policy institute, 2007), available at https://youthtoday.org/2007/03/the-dangers-of-detention-the-impact-of-incarcerating-youth-in-detention-and-other-secure-facilities/.
 Dual Status Youth Reform, Robert F. Kennedy National Resource Center for Juvenile Justice, (2013) http://www.rfknrcjj.org/our-work/dual-status-youth-reform/. Juvenile Detention Alternatives Initiative site (JDAI), https://www.aecf.org/work/juvenile-justice/jdai/.
 Roper v. Simmons, 543 U.S. 551 (2005).
 Miller v. Alabama, 567 U.S. –––– 460 (2012).
 Disproportionate Minority Contact, 6 Nat’l Council of St. Legis. 1, 2 (2011), available at http://www.ncsl.org/documents/cj/jjguidebook-DMC.pdf.
 Juvenile Justice and Mental Health and Substance Use Disorders Fact Sheet, Act 4 Juvenile Justice, (August 2014), available at: https://act4jj.org/sites/default/files/ckfinder/files/ACT4JJ%20Mental%20Health%20Fact%20Sheet%20August%202014%20FINAL.pdf.
 Skowyra & Cocozza, Blueprint for Change: A Comprehensive Model for the Identification and Treatment of Youth with Mental Health Needs in Contact with the Juvenile Justice System, National Center for Mental Health and Juvenile Justice, (May, 2015), available at http://www.ncmhjj.com/wp-content/uploads/2013/07/2007_Blueprint-for-Change-Full-Report.pdf. Better Solutions for Youth with Mental Health Needs in the Juvenile Justice System, The Mental Health and Juvenile Just. Collaborative for Change, 1 7 (2014), available at: http://cfc.ncmhjj.com/wp-content/uploads/2014/01/Whitepaper-Mental-Health-FINAL.pdf.
 Better solutions for Youth with Mental Health Needs in the Juvenile Justice System, The Mental Health and Juvenile Just. Collaborative for Change, 17 (2014), available at: http://cfc.ncmhjj.com/wp-content/uploads/2014/01/Whitepaper-Mental-Health-FINAL.pdf.
 Youth Incarceration in the U.S., Annie E. Casey Foundation (2013) https://www.aecf.org/resources/youth-incarceration-in-the-united-states/.
 Hsia, Heidi, Disproportionate Minority Contact Technical Assistance Manual, National Criminal Justice Reference Service, 1 (July 2009) https://www.ncjrs.gov/html/ojjdp/dmc_ta_manual/dmcintro.pdf.
 The Box: Teens in Solitary Confinement in U.S. Jails, Prisons and Juvenile Halls (updated), YouTube, (March, 2016), available at https://youtu.be/5FU_lgdCTs0. One Dark Side of the Criminal Justice System that Everyone Should Know, Mic, (May, 2015) http://mic.com/articles/116806/one-dark-side-of-the-criminal-justice-system-that-everyone-should-know.
 Such as the Prison Rape Elimination Act of 2003 (PREA), 42 U.S.C. § 15601 et seq., which contains protections for youth from sexual predation by other inmates and staff.
 As this is a report about youth with disabilities, unless otherwise stated, when the term “youth” is used, it is intended to mean youth with disabilities.
 Thomas Grisso & Gina Vincent, Trauma in Dual Status Youth: Putting Things in Perspective, Models For Change (May, 2015) https://rfknrcjj.org/wp-content/uploads/2014/12/Trauma-in-Dual-Status-Youth-Putting-Things-In-Perspective-Grisso-Vincent-RFKNRCJJ.pdf. Wiig, Janet K. & Tuell, John A., Guidebook for Juvenile Justice & Child Welfare System Coordination and Integration, xiii-xvi (2013, ed. 3). Available at: http://www.rfknrcjj.org/images/PDFs/Guidebook-for-JJ-and-CW-System-Coordination-and-Integration-Cover.pdf.
 Sexual Abuse: Elinson, Zusha, Juveniles Sexually Abused by Staffers at Corrections Facilities, Wall St. J. (Jan 1, 2015). Available at http://www.wsj.com/articles/juveniles-sexually-abused-by-staffers-at-corrections-facilities-1420160340?mg=id-wsj. Beck, Allen J., et al., Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-2009, 123 (2010), available at http://www.bjs.gov/content/pub/pdf/svjfry09.pdf. Key Facts: Youth in the Justice System, Campaign for Youth Justice (April 2012) http://www.campaignforyouthjustice.org/documents/KeyYouthCrimeFacts.pdf.
Physical Abuse: Understanding the OJJDP Survey of Conditions of Confinement in Juvenile Facilities, Center for Children’s Law and Policy. (August 2010) http://www.cclp.org/wp-content/uploads/2016/06/Fact-Sheet-OJJDP-Survey-Conditions-of-Confinement.pdf. Fact Sheet: Protecting Incarcerated Youth, Act 4 Juvenile Justice, (September, 2014) http://act4jj.org/sites/default/files/ckfinder/files/Act4JJ%20Fact%20Sheet-Protecting%20Incarcerated%20Youth%20FINAL%20Sept%202014.pdf.
 There is a package of research that addresses these issues at: https://civilrightsproject.ucla.edu/events/2013/closing-the-school-discipline-gap-conference-research-papers/copy_of_closing-the-school-discipline-gap-agenda/. See: Balfanze, Robert, et al., Sent Home and Put Off-Track: The Antecedents, Disproportionalities, and Consequences of Being Suspended in the Ninth Grade, Civil Rights Project at UCLA, (April, 2013). Marchbanks, Miner P, et al., The Economic Effects of Exclusionary Discipline on Grade Retention and High School Dropout, Civil Rights Project at UCLA (April 2013. Skiba, Russell J., et al., Where Should We Intervene? Contributions of Behavior, Student, and School Characteristics to Suspension and Expulsion. Civil Rights Project at UCLA (April 2013). Toldson, Ivory A., et al., Reducing Suspension among Academically Disengaged Black Males, Civil Rights Project at UCLA (April 2013).
 By “tickets” here we mean tickets given to students for violation of school rules that result in fines and/or referrals to the juvenile justice system. For example, tickets given to students in Texas as a result of truancy. See, Class, Not Court; Reconsidering Texas’ Criminalization of Truancy, Texas Appleseed, (2015), available at: https://www.texasappleseed.org/class-not-court-reconsidering-texas-criminalization-truancy-full-report.
 Losen, Daniel J. & Gillespie, Jonathan, Opportunities Suspended: The Disparate Impact of Disciplinary Exclusion from School, Civil Rights Project at UCLA 36 (August 2012) https://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prison-folder/federal-reports/upcoming-ccrr-research/.
 Gregory, Anne, et al., The Promise of a Teacher Professional Development Program in Reducing the Racial Disparity in Classroom Exclusionary Discipline, Civil Rights Project at UCLA (April 2013) https://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prison-folder/state-reports/the-promise-of-a-teacher-professional-development-program-in-reducing-the-racial-disparity-in-classroom-exclusionary-discipline/. Positive Behavioral Interventions & Supports, Office of Special Education Programs, (May 2015), http://www.pbis.org.
 “Wrap Around Services” generally consist of a package of individualized community-based services focused on the strengths and needs of the child and family.
 Davis, Leigh Ann, People with Intellectual Disability in the Criminal Justice System: Victims & Suspects, The Arc (August 2009) http://thearc.org/wp-content/uploads/2019/07/Criminal%20Justice%20System.pdf.
 Or wards of the county in some jurisdictions.
 Halemba, Gregory & Siegel, Gene, Doorways to Delinquency: Multi-System Involvement of Delinquent Youth in King County (Seattle, WA), National Center for Juvenile Justice, (September 2011) http://www.ncjj.org/pdf/MFC/Doorways_to_Delinquency_2011.pdf.
 Re-Examining Juvenile Incarceration: High Cost, Poor Outcomes Spark Shift to Alternatives, PEW Charitable Trusts, (April, 2015) http://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2015/04/reexamining-juvenile-incarceration.
 This example may seem simplistic but P&A have handled cases with this fact pattern.
 Holman, Barry & Ziedenberg, Jason, Dangers of Detention: The Impact of Incarcerating Youth in Detention and other Secure Facilities, Justice Policy Institute, (2006), http://www.justicepolicy.org/images/upload/06-11_REP_DangersOfDetention_JJ.pdf. Griffin, Patrick, Juvenile Court-Controlled Reentry: Three Practice Models, National Center for Juvenile Justice (February 2005), http://www.ncjj.org/PDF/court-controlledreentry.pdf. Baltodano, H. M., et al., Transition from Secure Care to the Community: Significant Issues for Youth in Detention. 372 388 (2005). https://www.jstor.org/stable/23282627?seq=1#page_scan_tab_contents. Brock, L, et al., Transition Toolkit 2.0: Meeting the Educational Needs of Youth Exposed to the Juvenile Justice System, National Evaluation and Technical Assistance Center for the Education of Children and Youth who are Neglected, Delinquent, and At-Risk (2008) https://neglected-delinquent.ed.gov/sites/default/files/docs/transition_toolkit200808/full_toolkit.pdf.
 Petteruti, A., et al., The Costs of Confinement: Why Good Juvenile Justice Policies Make Good Fiscal Sense, Justice Policy Institute, (May 2009), http://www.justicepolicy.org/images/upload/09_05_rep_costsofconfinement_jj_ps.pdf. Holman, Barry & Ziedenberg, Jason, Dangers of Detention: The Impact of Incarcerating Youth in Detention and other Secure Facilities, Justice Policy Institute, (2006) http://www.justicepolicy.org/images/upload/06-11_REP_DangersOfDetention_JJ.pdf. Mulvey, E.P., et al., Trajectories of desistance and continuity in antisocial behavior following court adjudication among serious adolescent offenders, Development and Psychopathology 22, 453-473 (2008) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2908904/.
 Matvya, J., et al., School Reentry for Juvenile Offenders, University of Maryland School of Mental Health Analysis and Action, (August 2006, http://csmh.umaryland.edu/Resources/Briefs/SchoolReentryBrief.pdf.
 Petteruti, A., et al., The Costs of Confinement: Why Good Juvenile Justice Policies Make Good Fiscal Sense, Justice Policy Institute, (May 2009), http://www.justicepolicy.org/images/upload/09_05_rep_costsofconfinement_jj_ps.pdf. Holman, Barry & Ziedenberg, Jason, Dangers of Detention: The Impact of Incarcerating Youth in Detention and other Secure Facilities, Justice Policy Institute, (2006), http://www.justicepolicy.org/images/upload/06-11_REP_DangersOfDetention_JJ.pdf. Mulvey, E.P., et al., Trajectories of desistance and continuity in antisocial behavior following court adjudication among serious adolescent offenders, Development and Psychopathology 22, 453-473 (2008).
 Zhang, D., et al., Adolescents with Disabilities in the Juvenile Justice System: Patterns of Recidivism, Exceptional Children 77, 283-296 (2011). Zhang, D., et al., Juvenile Offenders with and without Disabilities: Risks and Patterns of Recidivism, Learning & Individual Differences 21, 12-18 (2011).
 Holman, Barry & Ziedenberg, Jason, Dangers of Detention: The Impact of Incarcerating Youth in Detention and other Secure Facilities, Justice Policy Institute, (2006), http://www.justicepolicy.org/images/upload/06-11_REP_DangersOfDetention_JJ.pdf. Griffin, Patrick, Juvenile Court-Controlled Reentry: Three Practice Models, National Center for Juvenile Justice (February 2005), http://www.ncjj.org/PDF/court-controlledreentry.pdf.
 Beyer, M. & Demuro, P., Review of Services for Alabama Girls Charged with Delinquency, Southern Poverty Law Center, (2012) https://www.splcenter.org/20111231/review-services-alabama-girls-charged-delinquency.
 Skowyra & Cocozza, Blueprint for Change: A Comprehensive Model for the Identification and Treatment of Youth with Mental Health Needs in Contact with the Juvenile Justice System, National Center for Mental Health and Juvenile Justice, (May, 2015), http://www.ncmhjj.com/wp-content/uploads/2013/07/2007_Blueprint-for-Change-Full-Report.pdf.
 Beck, Allen J., et al., Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-2009, (2010) https://www.bjs.gov/content/pub/pdf/svjfry09.pdf.