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Thousands of Children On Probation Are Incarcerated Each Year for Nonviolent, Noncriminal Behaviors

Experts say Black and Native children are disproportionately jailed either for status offenses or for technical violations of probation or parole—and that incarcerating them has far-reaching negative consequences.

Photo illustration by Elizabeth Brown. Photo from Getty Images.

“Grace,” the 15-year-old Black girl whose incarceration in Michigan for failing to complete online school work drew national attention this summer, is one of thousands of children across the country who are incarcerated each year either for technical violations of probation or parole, or for what are known as status offenses—acts that are illegal only because of the child’s age. 

Whether they are jailed for a technical violation or status offense, these children end up confined in a legal system that experts say is rife with racial disparities and provides few if any educational or therapeutic services.

“[Detained] children are not free to leave, the doors are often locked, and the range of services that are available are from nothing to mediocre around the country,” said Tim Curry, special counsel with the National Juvenile Defender Center.

In addition to being incarcerated for alleged crimes like drug offenses or committing an assault, children in the United States can also be jailed for technical violations of their probation—nonviolent, noncriminal behavior that a judge finds objectionable—or for violating what are known as valid court orders. Grace was jailed in mid-May for a technical violation of her probation after she didn’t complete court-ordered homework in the midst of the COVID-19 pandemic. Other children are incarcerated on “status offenses”—typical adolescent behaviors such as refusing to obey their parents, skipping school, running away, or experimenting with alcohol. These “offenses” are criminalized by law solely because of the age of the people engaged in them. 

Experts say that most children who engage in status offenses don’t go on to commit serious crimes, but the damage done by incarcerating them for these behaviors can last well into adulthood. Studies have found that risks include depression, suicide or other self-harm, insurmountable debt, educational and professional instability, and an increased risk of future arrests for actual crimes.

Status offenses and technical violations are connected because “oftentimes young people on probation end up being locked up for breaking rules that are just symptomatic of adolescence,” said Steve Bishop, a senior associate with the Annie E. Casey Foundation.

Grace, who was released last month after her case received widespread attention, was first sentenced to “intensive probation” in April for allegedly stealing a phone and having arguments with her mother that became physical. In May, Oakland County Michigan Judge Mary Ellen Brennan ruled she had violated her probation by failing to complete her court-ordered homework. Regardless of the reason for their incarcerations, juvenile justice advocates say the process children like Grace go through when they’re jailed is traumatic.

“You get snatched out of your home and shackles are put on your hands and feet, you’re thrown in the back of a squad car and you’re brought to a cold official courthouse or detention center where you are stripped naked, put in clothing that you’ve never worn before,” said Judge Dan H. Michael, who is president of the National Council of Juvenile and Family Court Judges and is a judge in Shelby County, Tennessee. “If you come in [to a juvenile detention center], you come in with nothing other than what God gave you.”

The trauma is made worse because, frequently, children charged with status offenses aren’t provided with attorneys if their parents can’t afford one. In Michigan, for example, only children charged with one of the several status offenses—“being wayward”—are provided with an attorney, Curry said. Meanwhile, poor children charged for any of the other status offenses, such as running away from home, truancy, or being “incorrigible,” are not given counsel.

Children held for a status offense or for a technical violation are also frequently not provided with services that might actually help them, advocates say. During a July appeal of her incarceration, Grace, who is identified by a pseudonym because she is a minor, said she was actually falling behind in her schoolwork while being held at Children’s Village in Oakland County because the classes there weren’t challenging her. Michael said children being held on a VCO for running away from home or a violation related to their schoolwork are also often housed with juveniles serving sentences for violent crimes.  

When it was originally passed in 1974, the Juvenile Justice and Delinquency Prevention Act called for the complete deinstitutionalization of status offenses. However, a 1980 amendment created the “valid court order” exception, which allows judges to incarcerate children for failure to follow court instructions. The National Council of Juvenile and Family Court Judges pushed for the valid court order exception, a position the organization reversed in 2010. Michael told The Appeal that the reversal came about as juvenile judges learned more about the science behind childhood brain development.

“The last thing you want to do is to bring a child who is struggling with their behavior into the juvenile justice system,” Michael said, “because what we know is that once they come into the juvenile justice system and they’re incarcerated, they’re going to wind up deeper in the system over time.”

In 2018, Congress passed a JJDPA reauthorization that includes more limits on the use of valid court order exceptions to incarcerate children. One senator, Tom Cotton of Arkansas, was the lone voice in Congress fighting against eliminating VCOs altogether.

Michael said he also opposes incarcerating children for technical violations of probation or parole.

“A lot of judges would say, you jerk them back into the system” for violations like forgetting to charge an ankle bracelet or missing phone calls, he said. Instead, Michael advocates getting “into the community to find out what the problem is” and solving the problem rather than incarcerating the child. “We’re dealing with children here, we’re not dealing with adults.”

The number of children and teenagers incarcerated each year on status offenses alone vary because, under the JJDPA, states are allowed to provide estimates instead of hard numbers. Nearly 100,000 cases of status offenses were brought before juvenile judges in 2018, according to data compiled by the federal Office of Juvenile Justice and Delinquency Prevention. What happens next can vary widely, not just state by state, but also county by county within the same state. Across the country, the OJJDP estimates that, in 2017, 1,690 children were incarcerated for status offenses and 6,651 were held for technical violations of their probation.

The numbers show a system rife with racial disparities. In 2017, Black children were nearly four times more likely to be incarcerated for technical violations compared to white children, and almost twice as likely to be incarcerated for status offenses. Native youth were incarcerated for both probation and status violations at nearly four times the rate of white children.

Eight states make heavy use of valid court order exceptions to incarcerate children for status offenses. Those include Michigan, which incarcerated 630 children, Arkansas with 832, Virginia with 327, and Washington State with 1,723 children being detained in fiscal year 2016, according to a state-by-state comparison of VCO exception use published by OJJDP.

Tennessee, where some judges do not incarcerate children on VCOs, nevertheless reportedly detained 222 children for status offense-related charges. Thirty-two states and territories didn’t incarcerate a single child under a VCO, but 16 states and territories incarcerated from 1 to 100 children each for status offense-related charges, according to a state-by-state comparison of VCO exception use last updated in February by the Coalition for Juvenile Justice.

Efforts are underway in some states to at least limit the use of VCOs. Kentucky, which incarcerated 264 children during the 2016 fiscal year, passed a law in 2014 that “significantly reduced” the number of status offense-related incarcerations in that state, according to Mara Powell, the chief communications officer for Kentucky Youth Advocates. In Michigan, a bill introduced in January would bring the state’s status offense procedures in compliance with the recent federal reforms. Tennessee passed a reform bill in 2018 that some advocates said was “watered down.” Washington State, which incarcerates far more children for status offenses alone than any other state in the country, passed a law during its last legislative session that would eliminate the use of detention for status offenders.

These reform efforts face opposition. In Washington State, “judges are actively working to find ways to get around or repeal the new law,” George Yeannakis, a special counsel at TeamChild, told The Appeal. Powell of Kentucky Youth Advocates said that, in her state, “Stakeholders advocated for legislation that would end the use of detention for status offenses but have been unsuccessful thus far.”

The question of juvenile incarceration reform, particularly for status offenses, comes down to whether the justice system should be involved with truancy or a child disobeying their parents, Curry said. “Is that really something that the court system and the incarceration system should be involved in?”

Michael spoke more bluntly.

“If you’re going to lock up a child because she’s not doing well in school, because she doesn’t have the community support to do well in school, why aren’t you locking up the community as opposed to the child?” he said.