Kids don’t belong in the justice system for noncriminal acts that stem from developmental changes and service needs—both of which are largely beyond their control. But, the paternalism and interventionism of the status offense system dates back to the turn of the 20th century. The early juvenile courts were built on the doctrine that the state has the responsibility and authority to protect persons legally unable to act on their own behalf. For kids, it was believed that illegal behavior was the result of poor parenting, in which case the state was better suited to care for, control, and rehabilitate them. Howard N. Snyder and Melissa Sickmund, Juvenile Offenders and Victims: 1999 National Report (Pittsburgh: National Center for Juvenile Justice, 1999), https://perma.cc/WDR2-GY7J. Although it is not covered in this report, it is important to note that many parents today are sent to court for their child's misbehavior. For example, recent media attention has been given to parents who receive significant fines and can be eventually jailed for their child's truancy. This alternate punitive response has its own negative consequences for families and, like sending kids to court, does not address the problems that  underlie the child's misbehavior. See Jessica Feierman with Naomi Goldstein, Emily Haney-Caron, Jaymes Fairfax Columbo, Debtor's Prison for Kids? The High Cost of Fines and Fees in the Juvenile Justice System. (Philadelphia: Juvenile Law Center, 2016,) 17-19, https://perma.cc/Z2RQ-8BUK.  See also: Nadja Popovich, "Do US laws that punish parents for truancy keep their kids in school?", The Guardian, June 23, 2014, https://perma.cc/7LG8-38E2; and Dana Goldstein, "Inexcusable absences," New Republic, March 6, 2015, https://newrepublic.com/article/121186/truancy-laws-unfairly-attack-poor-children-and-parents. As juvenile courts set out to “fix” youth, their jurisdiction expanded to include noncriminal yet disagreeable behaviors—what are now referred to as status offenses.

These beliefs continue to steer today’s status offense systems as adults send kids to court “for their own good”—be it in a conscious effort to get them access to the right services or to correct their behavior using sanctions. As demonstrated below, such criminalizing responses are often subject to unchecked biases and cause harm to kids—all while misusing resources and a system that is intended to keep communities safe. This concept has been noted by other experts in the field, including Francine Sherman and Annie Balck, 2015, https://perma.cc/UVR9-RWWY.

Discretion and bias lead to unequal responses

Whether or not misbehavior lands a kid in court is largely dependent on the individuals who respond to the behavior and how they view the kid who is “acting out.” Be it a police officer, a school official, or even a parent, adults have varying levels of knowledge around youth development and particular ideas about what acceptable family and social norms look like. These understandings converge with their personal biases (including racial, cultural, and gender biases) to shape how they interpret and respond to a kid’s misbehavior. 

Not surprisingly, these varying perspectives lead to disparate consequences for kids, especially girls. Early legal thinking considered boys delinquent if they violated a civil ordinance or law, but girls were charged for general “immorality”—a broad term which included unruliness, associations with immoral persons, vagrancy, frequent attendance at pool halls and saloons, and profanity. Lindsay Rosenthal, “Ending the Unjust Treatment of Girls Charged with Status Offenses,” Think Justice (blog), Vera Institute of Justice, October 26, 2015, https://perma.cc/CT8F-UCLT; and Francine T. Sherman, 13 Pathways to Juvenile Detention Reform: Detention Reform and Girls: Challenges and Solutions (Baltimore: Annie E. Casey Foundation, 2005), https://perma.cc/R7K2-CPHT. That is, girls were punished for behavior that was considered “unladylike”. And, once in court, a higher percentage of girls were sent to reformatories than boys. Joan McCord, Cathy Spatz Widom, and Nancy A. Crowell, eds., “The Juvenile Justice System,” in Juvenile Crime, Juvenile Justice (Washington, DC: National Research Council and Institute of Medicine, Panel on Juvenile Crime: Prevention, Treatment, and Control, 2001) https://nap.edu/read/9747/chapter/7. While these disparate laws no longer exist, girls today are still typically sent to the justice system for less serious offenses (status offenses and technical violations) than boys, and they are more likely to be detained and stay in juvenile justice facilities longer for those minor offenses. Lindsay Rosenthal, 2015, https://perma.cc/CT8F-UCLT; and Francine Sherman, 2005, https://perma.cc/R7K2-CPHT. 

Unsurprisingly, the same discrepancies exist when looking at poor kids, kids of color, and LGBT/GNC kids. Including girls, these kids are most likely to have limited access to programs that meet their service needs and be subject to biases that lead to harsher reactions to their misbehaviors. For example, schools with more black students are more likely to suspend and expel kids for “acting out,” while schools with fewer black students are more likely to respond with behavioral treatment and special education programs. David M. Ramey, “The Social Structure of Criminalized and Medicalized School Discipline,” Sociology of Education 88, 3, https://perma.cc/TNP5-97SG. Research also indicates that police officers tend to view black kids as less innocent than kids of other races, and teachers tend to view black girls as louder, more unruly, and more in need of reprimand for being “unladylike” than other girls. American Psychological Association (APA), Black Boys Viewed as Older, Less Innocent Than Whites, Research Finds (Washington, DC: APA, 2014), https://perma.cc/9FAF-4MRH; Kimberlé Williams Crenshaw, Black Girls Matter: Pushed Out, Overpoliced and Underprotected (New York: African American Policy Forum and Center for Intersectionality and Social Policy Studies, 2015), https://perma.cc/G7VK-6R4F; and Monique Morris, Pushout: The Criminalization of Black Girls in Schools (New York: The New Press, 2016), 11. And, kids who identify as lesbian, gay, or bisexual are more likely to be stopped by police, arrested, and convicted for engaging in the same behaviors as their straight peers. Angela Irvine, Shannan Wilber, and Aisha Canfield, Lesbian, Gay, Bisexual, Questioning, and/or Gender Nonconforming and Transgender Girls and Boys in the California Juvenile Justice System: A Practice Guide (Oakland: Impact Justice, 2017), https://perma.cc/3L9T-TMSB.

In other words, kids who are already less privileged—in how they are perceived and in their access to services—are more likely to have their misbehavior criminalized. 

The discretion to redefine status offenses as crimes

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Inefficient investment of resources lead to poor outcomes for kids

For over 50 years, research has consistently shown that community-based programs are most effective in improving kids’ long-term outcomes—including reduced reoffending, educational attainment, improved behavioral health, strengthened family functioning, and greater skill-building. James Austin, Kelly Dedel Johnson, and Ronald Weitzer, Juvenile Justice Bulletin: Alternatives to the Secure Detention and Confinement of Juvenile Offenders (Washington, DC: U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, September 2005), https://perma.cc/ZMV9-5EW6; Christopher T. Lowenkamp and Edward J. Latessa, “Understanding the Risk Principle: How and Why Correctional Interventions Can Harm Low-Risk Offenders,” Topics in Community Corrections (2004), https://perma.cc/37GT-JYXB; and Elizabeth Seigle, Nastassia Walsh, and Josh Weber, Core Principles on Reducing Recidivism and Improving Other Outcomes for Youth in the Justice System (New York: Council of State Governments Justice Center, 2014), https://perma.cc/Z67W-5LKC. Kids who receive services in their own homes and communities are able to maintain and even build connections to their families and other support systems, while also continuing to go to school, work, and other pro-social activities. James Austin, Kelly Dedel Johnson, and Ronald Weitzer, 2005, https://perma.cc/ZMV9-5EW6; and Edward P. Mulvey, 2011, https://perma.cc/WM59-QC4U.

When status offense cases are sent to court, communities miss opportunities to get kids the right supports and, instead, expose kids to the justice system’s damaging effects. To start, when parents, schools, or other community members file status offense petitions against children, they signal to them that they are “bad”—a label that brings about stigma and negative self-esteem. Models for Change Juvenile Diversion Workgroup, Juvenile Diversion Guidebook, March 1, 2011, https://perma.cc/T69U-487N. And, the very experience of being in court increases the likelihood that kids will engage in future criminal activity. While research shows the effect of the court experience, there is no available research on the mechanisms by which court experience affects kids. See Uberto Gatti, Amelie Petitclerc, Richard E. Tremblay, and Frank Vitaro, 2013, https://perma.cc/XMQ5-UVZA. This trajectory is worsened when court involvement leads to sanctions such as detention and out-of-home placement—as it does for thousands of status offense cases each year. Sarah Hockenberry and Charles Puzzenchera, 2014, https://perma.cc/8XV4-G8F9. Locking kids up disrupts existing protective factors that could help kids do better—isolating them from their families and support networks and interrupting their education and other positive activities (such as jobs and after school programs). It can also expose them to a range of harmful experiences, including violence and abuse from peers and staff in facilities. Christopher T. Lowenkamp and Edward J. Latessa, 2004, https://perma.cc/37GT-JYXB; and Richard A. Mendel, Maltreatment of Youth in U.S. Juvenile Corrections Facilities: An Update (Baltimore: Annie E. Casey Foundation, 2015), https://perma.cc/9YKH-KT85. Kids who are locked up are more likely to drop out of school and become more deeply involved in the justice system. Barry Holman and Jason Ziedenbreg, The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities (Washington, DC: Justice Policy Institute, 2011), https://perma.cc/LPW3-FKF3; and Edward P. Mulvey, 2011, https://perma.cc/WM59-QC4U.

Beyond the human toll, this approach comes with substantial financial costs. Many jurisdictions continue to allocate significant portions of judges’ dockets to status offenses, misusing time and resources that could be spent on criminal cases. Confinement is both the most harmful and expensive intervention available—costing states upwards of $149,000 to incarcerate a kid for one year. Justice Policy Institute, Sticker Shock: Calculating the Full Price Tag for Youth Incarceration, December 2014, https://perma.cc/V452-YK9H; and Richard Mendel, No Place for Kids: The Case for Reducing Juvenile Incarceration (Baltimore: Annie E. Casey Foundation, 2011), 19-22, https://perma.cc/KBV7-6HYD. This cost doesn’t include the indirect, long-term price of confining kids—such as recidivism, lost future earnings, and additional Medicaid/Medicare spending—which is estimated to cost the country $8 to $21 billion each year. Ibid.

Sorc Criminalizing Infographic V3
Locking kids up isolates them from their support networks and exposes them to a range of harmful experiences—all at a great cost to communities.

Given that many kids charged with status offenses would likely have aged out of their misbehavior on their own or with only minimal intervention, the high cost of using court-based responses makes little sense—particularly in light of high recidivism rates. Sharon Casey, 2011, https://perma.cc/L3YW-2SHZ; and Edward P. Mulvey, 2011, https://perma.cc/WM59-QC4U. These resources would be better spent on community-based prevention and diversion programs that cost less to begin with and result in substantial savings by improving youth outcomes. Elizabeth Seigle, Nastassia Walsh, and Josh Weber, 2014, https://perma.cc/Z67W-5LKC.