Kids and Pretrial Justice: The Unique Challenges of Reforming the Juvenile Court System

The National Juvenile Defender Center is a national nonprofit organization dedicated to promoting justice for children by training juvenile defenders and advocating for juvenile justice reform. NJDC recently launched a new section of its Defender App devoted to Covid-19 resources for juvenile defenders and advocates. We spoke with executive director Mary Ann Scali and staff attorney Sherika Shnider.


NPPJ: What are the specific challenges facing kids and teenagers in America’s court system?

Mary Ann: The United States incarcerates children at the highest rate in the world. Currently, more than 800,000 young people are arrested every year and more than 40,000 are removed from their homes. A disproportionate percentage of that number are children of color. Our work is geared toward trying to ensure that every child who faces arrest and prosecution has the same kind of lawyer you would want if it were your child who was arrested. The fact of the matter is that many young people don’t have a lawyer when they go through court proceedings. Their families often believe it will be faster and less expensive to go without a lawyer. They just want to get it over with. A much higher percentage of young people go to court without a lawyer than do adults. It’s critical that every young person has a specialized juvenile defender.

NPPJ: How does NJDC help provide legal representation for children?

Mary Ann: We have a national network of lawyers who are organized into nine regional juvenile defender centers. Our mission is to promote justice for all children by ensuring excellence in juvenile defense. We provide juvenile defenders with specialized training and resources to help ensure that youth going through the legal system have a skilled, dedicated, and knowledgeable attorney working with them every step of the way. We have a set of standards that agencies or states can use to monitor what’s happening with juvenile defense, and we created a curriculum to help train lawyers in juvenile defense. Juvenile defense requires not just the skills of criminal defense but also the ability to navigate a separate set of delinquency laws and family and school systems. Our goal is to make sure states support effective systems of juvenile defense. Many states have strengthened adult defense but have left juvenile defense behind. It’s especially frightening that during the Covid-19 pandemic young people might not have a lawyer to advocate for their release.

NPPJ: What are the major differences between the legal rights of children versus adults?

Mary Ann: The foundational Supreme Court case is In re Gault, which came down in 1967 and affirmed young people’s right to counsel and extended many, but not all, of the due process rights of adults to children. For instance, only a few states have jury trials for young people. We believe that the rights afforded to children should be upheld even more systematically than those afforded to adults. The court system is confusing for adults. Imagine being a young person sitting through court proceedings without a lawyer.

NPPJ: Why does America lock up more children than any other country? What are the drivers of youth incarceration?

Mary Ann: The United States has developed an addiction to incarceration. It has been a monetary benefit to the prison industrial complex. And it isn’t any different with regard to young people. But when we incarcerate children for low-level conduct, it actually makes communities less safe, because all it does is teach children to distrust the system. We cut away their access to positive community support, their local education system, their families. So we have to shift the culture of this nation away from incarceration and toward equal justice and opportunity for all.

Sherika: Youth of color continue to face persistent injustices, in both the juvenile and criminal legal systems. That’s due to over-policing, that’s due to disparities in sentencing that persist despite consistent behavior across racial groups. Youth of color are disproportionately suspended or expelled from school, which fuels the school-to-prison pipeline. Youth of color are more likely to be adjudicated delinquent after they get arrested. They’re more likely to be removed from their home and placed into secure facilities.

NPPJ: What are some of the consequences of our over-reliance on incarcerating youth?

Mary Ann: The most critical element of harm that occurs to young people by incarcerating them is the disconnection from their families, their local education, and their positive community support. Then there are all the attendant harms, including the lasting stigma of incarceration and the actual physical and emotional harms of locking up children. None of the developmental aspects of adolescence that are so important for all youth—identity development, independence, autonomy—are possible when young people are incarcerated. All of that is inhibited. Youth can’t learn to make good decisions because the decisions are made for them. They can’t learn to be autonomous because they can’t act on their own.

Sherika: And it doesn’t stop after they walk out the facility doors. We have so many youth who we as a society are failing. We’re detaining far more youth than we need to.

NPPJ: What are NJDC’s recommendations for how to handle detained youth in light of Covid-19?

Sherika: Our juvenile defenders are our first responders for youth justice right now. On March 13 we received a note from one of our defenders in New Orleans that they were filing motions to get kids out. The defender knew that these facilities are hotbeds for infection. So we put out an ask for affidavits and written statements from medical professionals who believed that the pandemic called for limiting the number of young people held in facilities. We built a section of our Defender App dedicated to COVID-19, with sample motions and affidavits from medical professionals testifying to the harm of detaining youth during a pandemic. Many of the incarcerated youth have underlying conditions like asthma. Imagine being a youth in a facility who has now, due to the pandemic, lost touch with their family. They may have lost touch with their attorney. So we issued a statement calling for the release of young people from facilities and co-sponsored another calling for an end to fees and costs. We need to get kids out.

NPPJ: Have juvenile detention facilities been releasing people during the pandemic?

Sherika: It really varies. Communities are approaching this in different ways. We have seen courts that decided they would let kids out. We’ve also seen courts that are continuing to hold them, because they say it’s safer for them. It’s not safer for them. What happened in Houston has been horrific. In early April there were 136 youth held in solitary confinement 23.5 hours a day because of COVID. The defenders on the ground there filed a writ, but that writ was denied without an evidentiary hearing. Those stories are frustrating to hear, but what we see is juvenile defenders then filing for individual release hearings, and this is where we are seeing the most young people able to go home.

NPPJ: Where do youth go when they are released from detention?

Sherika: Most youth are returning home. We recognize that not every youth who is currently incarcerated can go home to a safe place. They have different situations. We’ve seen an increase in the use of GPS monitors. That shows youth don’t need to be detained, but I’m also not sure that GPS monitors are the best answer. Some youth go to safer spaces than their current facility. This is an example of why kids need good lawyers. You need someone who knows the kid’s situation and can be their advocate.

NPPJ: What gives you hope for the future?

Sherika: We put our faith in our juvenile defenders. I can’t emphasize enough how amazing this community is. We are also hopeful for pretrial detention reform. The releases that are happening because of the pandemic can be continued. Right now, arrest and detention rates for both youth and adults are down across the country. That’s telling us something. The system doesn’t need to be the way it is. Once the pandemic is over, we can’t go back to the norm.

Mary Ann: The evidence couldn’t be more clear that the vast majority of youth being brought into the courtroom don’t need to be detained. Courts are seeing that young people don’t need to be held in cages, and that they thrive when they’re allowed to stay in their own communities. That gives all of us hope for what could come out of this crisis.