Punishing Children

Institutions have and will continue to fail on multiple levels no matter the mission statement. This is related to our institutions having been designed within the confines of the U.S. cultural investment in racism for which we are all the heirs. Statistical data and storytelling show us this over and over.

In a previous column, “Adultifying BIPOC Children for Punishment,” we outlined such data and the life course of DeAndre Rogers. We painted a picture of the ways that institutions, like the juvenile justice system and schools, are not the place for disciplining and supporting children, especially not children from BIPOC communities.

The institutional flaws show up as subtleties and obvious bias against BIPOC children, like in the case of Rogers. There are strategies used by school districts, in terms of subtle flaws, to move out and keep out children who are linked to the juvenile court, improving the district’s public appearance around school discipline data.

There are also more grandiose examples such as Judge Mark Ciavarella from Philadelphia who was finally held accountable in the early 2000s when investigations began due to concerned parents. The case was later named Kids for Cash where Judge Ciavarella was found to be taking bribes for moving children into private prisons for minor infractions.

And still, there are damning annual counts of the numbers of children sexually assaulted in juvenile facilities each year. In the most recent 2019 national report from the Department of Justice, 5.8% of youth in custody experience sexual abuse by the adults who are employed there and another 1.9% experienced sexual abuse from peers.

Adultifying children refers to culturally constructing children into adults both legally and conceptually. Children in the United States are legally framed as adults through written laws and their implementation, treating children as if it is “natural” and appropriate for institutional punishment much like adults.

Children are also conceptually framed through the ways we, adults, interact and build relationships with them. For example, while discussions of school arrests often focus on the presence of school resource officers (SROs) on campuses, if schools and, in particular, vice principals did not choose to call the police on matters, then school-based arrests would decrease significantly.

In this regard, school leadership is conceptually relating to children as if the children are adults and in need of institutional punishment by choosing arrest. 

The latest research shows that behavioral factors involved in bringing children into the juvenile justice system, and specifically into juvenile detention facilities, include person offenses (37%), public disorder (26%), property offenses (20%) and drug cases (8%).

There is great variability in terms of each of these categories, but researchers over and over advocate for fewer youth arrests as these categories often include minor behaviors that under various contexts would not always result in youth being brought into the juvenile justice system.

Importantly, a 2015 longitudinal study showed that youth at the point of entering the juvenile justice system become 4.4 times more likely to experience an early death. Once linked to the juvenile justice system, children are accelerated into further involvement in behavioral issues and marginalizing stigma from other institutions such as schools.

While there are behavioral support options for school leadership aside from arrest, many schools default to police involvement. Even with SRO involvement such as that in the Fresno Unified School District (FUSD), within the Central Valley, there are several options other than arrest: a citation with or without a referral to youth court, “reprimand and release,” and for five campuses there is the option to refer students to restorative practices and restorative justice mediation (i.e., Edison, Fresno, McLane and Sunnyside high schools and Fort Miller Middle School).

And circumscribing these options, there are intelligent and capable adults who can creatively choose possibilities outside of linking children to the juvenile justice system and early deaths.

For FUSD, SRO data are available twice a year through the Student Contact Analysis (SCA) report that comes from the Fresno Police Department. The SCA provides data for each academic semester.

In a recent SCA, covering the spring semester of 2021, the report shows that “66.67% of all crime-related contacts made by SROs during this reporting period [were] diverted from the Juvenile Justice System through alternative resolutions and effective use of restorative practice techniques.”

In combination with a June 2021 program evaluation report on the outcomes of the FUSD restorative practices model, we know that a significant portion of students is routed directly to the police rather than being provided the opportunity to access restorative programming. Access to such programming is determined by both FUSD policy and the implementation of the model by FUSD staff.

Furthermore, in Fresno County, there was a gradual increase in placing children in juvenile facilities from 2009 to 2016. The Center on Juvenile and Criminal Justice provides helpful county-by-county depictions of various data points around locking-up children ages 10 to 17-years old. Repeatedly, Fresno County, relevant to this conversation because a central example below stems from Fresno, incarcerates children annually at a higher rate than the state average.  

In an interview with the director of the Victim Offender Reconciliation Program (VORP) at the Fresno-based Community Justice Center, Seya Lumeya, we learn the following about the Fresno County Juvenile Court’s current investment in getting children out of the juvenile justice system and into proven, effective community-based options.

For more than a decade, the Juvenile Court and Probation Department has referred children to VORP, including children before or after they are adjudicated for a crime. According to his programming data for fiscal 2020–2021, referrals come from the court about 20% of the time and the remainder of referrals derive from the Probation Department.

Lumeya’s programming data also show which children access VORP from across both referral sources. That is, American Indian (3%), Black (9%), East Asian (2%), Latinx (60%), Southeast Asian (4%) and White (22%) children are accessing this option at rates that do not mirror their presence in the juvenile justice system.

The Office of Juvenile Justice and Delinquency Prevention (OJJDP) indicates that 2,487 children aged 10 or older were in the Fresno County facility in 2019. By demographics, incarcerated children in county-operated facilities are well known by the OJJDP to be overrepresented by BIPOC children, not reflecting the statistical distribution of Census data for counties across this country. For example, although Black children in Fresno County account for 4.5% of the population, they are overrepresented in the Fresno County juvenile facility and are less able to access VORP than White peers.  

Based on a national understanding of the ways that racism factors into the operations of the juvenile justice system, it is not surprising that White children are viewed as appropriate for restorative and healing programs whereas BIPOC children are not. As the data show, White kids are showing up in the VORP program more than they are likely to, even though they are a smaller group within the Fresno County system.

Aside from the well-understood factors of implicit and explicit bias across institutional actors, a Juvenile Court insider shared that for those children without a parent present at court hearings, the Juvenile Court perceives the child as not worth a referral to the restorative option. Note that although the VORP process invites parents and family members into the program, VORP does not require a parent to be active in the restoration process.

Also, when those who have been impacted by the harm are unavailable for the restorative process, Lumeya can include surrogate victims and surrogate supports to engage with the children who committed the harm. These features of VORP show the program’s creativity, ensuring a comprehensive experience for repairing the injury.

Research on restorative programming provides insights into the positive impact made for those who create harm and those negatively affected by it. There are many global studies and they focus on programs serving both children and adults.

Most of these studies involve Western countries and ask questions about short- and long-term outcomes in terms of curbing future behavioral issues. However, these questions are not often asked by anyone other than researchers. Moreover, this question on outcomes has not been used for deciding funds for the juvenile justice system.

In restorative justice studies on U.S. children, we learn the most from literature reviews that assess the rigor of multiple studies. We also learn from careful single-site studies like that by Bergseth and Bouffard (2007) who provide various layers of exploration and findings, including that youth who get access to restorative programming are “less likely to experience later police contacts, experienced fewer later contacts, and tended to have less serious later behavior than those referred to traditional juvenile court processing.”

These positive findings are shown even within the research context of varying definitions of reoffending, the inability in many studies to control for bias in referrals to restorative programs and the lack of true control groups in many cases. Also, long-term positive outcomes are found for children who committed harm, but beyond the benchmark of four years of follow-up data, there is little known because of the lack of available quantitative data and resulting publishable peer-reviewed content.

The VORP director also shared an example of the ways that the innateness of our flawed institutions unfolds in children’s lives.

At 13 years old, one boy received a citation from a police officer, but the boy did not show up for the scheduled court hearing. Two years went by and then, at 15 years old, this same boy was arrested from his home when his mother called the police because he was cursing at her.

He spent 10 days at the Fresno County Juvenile Justice Campus (JJC) and, during this time, the two-year prior “no show” was discovered. The boy reports that he was told that he would not be released from the JJC unless he pled guilty on a 242, battery on his mother. This boy was eventually released and referred to VORP.

Arrests of youth from community and school spaces are rarely the solution if the goal is collective safety. Recall from the monthly articles in this column where we explore decolonizing approaches to safety and champion collective safety, collective safety is community-centered rather than institution-centered. The standards defining collective safety reflect safety for all bodies and the creativity to fashion decolonized practices.

In colonial settings like the current state of the United States, institutions are the means for establishing formalized and sanctioned activities, resource access and ethical codes. Take, for instance, institutions such as the DMV, hospitals and schools; these are not innate, universal and inevitable.

When we outsource child discipline and support to institutions like the juvenile justice system, we must also acknowledge that we are sending children into flawed systems that will most likely injure the children. 

There are many children out there where adults are linking them to the juvenile justice system for institutional punishment when alternatives that actually provide collective safety exist. The visceral harm enacted on numerous children by conceptually adultifying them as appropriate for punishment is beyond words.