A Call to End the Placement and Poor Treatment of Children with Disabilities in the Juvenile Justice System
The National Disability Rights Network released its alarming report on the needs of children and youth with disabilities who come in contact with the juvenile and criminal justice systems. “Orphanages, Training Schools, Reform Schools and Now This: Recommendations to Prevent the Disproportionate Placement and Inadequate Treatment of Children with Disabilities in the Juvenile Justice System” is an urgent call for action for Congress, juvenile justice administrators, and advocates.
The report reminds us that disparities in the treatment of youth in the juvenile and criminal justice systems is not limited to racial and ethnic disparities or gender—in fact, 65-70 percent of youth in the justice system meet the criteria for a disability, a rate that is three times higher than that of the general population. Disabilities extend beyond children with mental health needs and learning disabilities and include youth with cognitive impairments, physical disabilities, the deaf and blind, and others. Summarizing practices in schools, juvenile justice and child welfare systems, the report consistently finds that despite what we know about brain development and the success of child-youth centered, family involved, community based services—we still consistently try to “discipline” the disability out of children, often by incarcerating them in inhumane conditions, without access to their families and the necessary services to get them connected and prepared to succeed as adults.
Furthermore, the report shows how the failure of many other systems’ understanding of how to properly support youth with disabilities leads to an over-referral of these youth into the juvenile justice system (e.g. schools, law enforcement, mental health, child welfare). Once there, a lack of accommodation needs such as the need for sign language, courtroom accommodations, and an inability to accurately understanding his/her rights may lead the child to more severe outcomes, including being certified or direct filed into adult court.
Several case studies demonstrating ways that Protection & Advocacy Agencies (P&A) can help with advocacy of youth in court and legislative change included several stories of youth charged as adults. One case study in California outlined a young man with autism who stabbed his stepfather during a behavior episode. His stepfather was treated and released from the hospital the same night; the young man was charged as an adult and found not competent to stand trial. The P&A was part of a team who advocated that this young man be held in a juvenile facility until proper placement could be identified. Advocacy efforts allowed him to be released from custody and placed into a community home where he could continue to maintain his close ties to his family, church and community, rather than to a regional developmental center, far away from his supports.
Diane Smith Howard, author of the report states the importance of providing services to youth with disabilities so they aren’t ultimately fed into the adult system, “Research has clearly shown us that the adult system and adult methods of discipline used within that system, such as isolation, do not effectively rehabilitate youth with disabilities, nor are they effective for youth in general. Yet we persist on using them. One reason for this is the failure to provide effective and readily available community based services for youth with disabilities, which results in their referrals into the juvenile justice system, which then acts as a feeder for the adult system. Or worse in some cases, feeds youth directly into the adult system. In makes no sense to allocate additional funding for programs that are not research based and run contrary to what we know.”
Call to Action: The report makes key recommendations to Congress, the Administration and State Legislators to improve conditions for youth with disabilities. Highlights include:
- Funding P&A for juvenile justice programs
- Fund the statutes that provide services for this population including Medicaid community-based services, IDEA and PREA
- Reauthorizing the JJDPA with language that eliminates the valid court order and prohibits the use of solitary confinement for all youth, including those housed in adult facilities.
- The U.S. Department of Education (ED) and Department of Justice (DOJ) should fully enforce all provisions of Title VI, Title IX, the ADA Section 504, and the IDEA, including all obligations under these statutes for youth in correctional facilities, so that education of youth in these settings is equal to that provided to students in other public schools.
- ED and DOJ should expand the scope of their investigations to include youth in federal custody (Federal Bureau of Prisons (BOP), Department of Homeland Security (DHS), Immigration Detention and other federal programs).
- States should develop and support programs that provide training in the following rights, laws and regulations: IDEA, ADA, and Section 504, Title VI and Title IX, disparate impact claims, harassment/hostile environment claims, Due Process rights applicable to all public school students, and state specific civil rights laws, to all stakeholders in the juvenile justice system.