Girls and Juvenile Justice Reform: Thinking Out of the Box*

Randall G. Shelden

*Keynote speech at the Fourth Annual Girls, Community, and Justice Conference, University of Massachusetts-Dartmouth, April 25, 2008.

Part I: Girls in the Juvenile Justice System: A Current Assessment

Let’s start by going over some of the most recent data on delinquency among girls. The latest figures from the FBI Uniform Crime Reports show that in 2006 girls constituted a little over 29% of all juvenile arrests, up slightly from 27% in 1997.  What accounts for most of this increase are arrests for “other assaults” (+20%) and disorderly conduct (+34%).  Both of these increases can be attributed to an increase in “zero tolerance” policies, resulting in a crackdown on minor fights (mostly on school grounds) and domestic violence cases.  In the latter case, law enforcement policies have resulted in a sort of “equal opportunity” tendency.  A kind of “arrest first” and ask questions later.  Never mind, that the people most likely to be victimized (women and their daughters) are also highly likely to be arrested and charged with “assault.” (See Table 1.)

            Contrary to popular opinion (largely a creation of the media) there is no evidence of a surge of violence among girls.  Less than 3% of arrests for girls were for violent index crimes – homicide, assault, robbery, rape; an almost identical percentage was found 10 years earlier.  Males remain the most violent of the species.

            As has been the case for 100 years, property offenses (mostly shoplifting) and status offenses rank the highest for girls, together accounting for almost 38% of all arrests among girls in 2006.

            While serious juvenile crime has been decreasing since the early 1990s, juvenile court caseloads have not.  Indeed, juvenile courts all over the country have been overwhelmed with mostly minor offenses – other assaults, disorderly conduct, status offenses and the like.  In a word, it has been “zero tolerance” run amok. 

For instance, during the decade of the 1990s delinquency cases processed in juvenile courts across the country increased by more than 25%.  This increase was led by drug cases (up 169%), a catch-all category called “obstruction of justice” (up 115%) and “simple assaults” and “other person offenses” (each up 95%).  More recent data show a significant decrease in overall delinquency cases (-7% from 1995 to 2004), but with continuing increases in each of the above-referenced cases (“obstruction of justice” was up by 70%), but also liquor law violations (+78%) and another catch-all called “nonviolent sex offenses” (up 48%).  (See Table 2.)

            The differences between males and females are noteworthy.  Between 1995 and 2004 male cases declined by 14%, while female cases increased by 8%.  In fact, the proportion of all delinquency caseloads that were girls went from 19% to 27%.  Clearly something has been happening to girls. 

Most of the increases for girls were for what the official reports call “person offenses” (mostly “simple assaults”), drugs and public order offenses.  Overall rates for these “person offenses” went up by 10% for girls and down by 13% for boys; male drug case rates were stable during this time, while female rates went up slightly.  As for public order cases, for girls the rate went from about 5 (per 1,000) to about 9, compared to a very slight increase for boys.[1]

I would be remiss if I did not mention something very important about “person offenses.”  A lot has been written in the press and among a few popular books (e.g., “See Jane Hit”) claiming that girls are getting more and more violent.  Such irresponsible claims cite the increase in the broad category of “person offenses” and ignore the fact that the overwhelming majority of these cases are “simple assault” – meaning no one was seriously hurt and no weapons were used.  I will return to this subject shortly.

I should also mention something about the categories of “obstruction of justice” and “nonviolent sex offenses.”  The definition of “obstruction of justice” provided by OJJDP includes such behaviors as “acting in a way calculated to lessen the authority or dignity of the court” (in common terminology, “pissing off the judge”), “failing to obey the lawful order of the court” (e.g., go to school, obey your parents, etc.) and especially “violating probation or parole.”  Curiously, the category of “nonviolent sex offenses” is not defined in the glossary of the Juvenile Court Statistics, but within the category of public order offenses is “sex offenses” and within this category we have “all offenses having a sexual element not involving violence.”  This includes statutory rape, indecent exposure (this probably includes the popular male pastime of peeing in public), prostitution, lewdness, fornication, etc.  It should be noted that none of these categories are felonies.

Table 2 Referrals to Juvenile Court, 1995-2004.

The key question here is whether or not these trends reflect changes in actual behavior or changes in police and court policies and practices.  Based upon self-report surveys, there is no evidence that these behaviors have actually increased.  In the annual survey of high school seniors, one of the questions asked has to do with whether or not, during the previous 12 months, a student “Got into a serious fight in school or at work.”  The percentage of males saying yes was 20 in 1994 and 19 in 2003; for girls these percentages were 12 and 9 respectively.  Another question asked them if they “took part in fight with group of friends against another group.” For males the percentage was the same in both years (25%) and for females it was 14 and 15 respectively.  Another asked whether they “hurt someone badly enough to need bandages or doctor.”  For males the percentage saying yes decreased from 21 to 19; for females it stayed at 5.  Finally, for the question concerning “used gun or knife or other weapon to get something from a person” remained at 7% for boys and declined from 2% to 1% for girls.  Similar trends are found for all other offenses, including drug use (in this case an overall downward trend).[2]  By the way, it should be noted that school crime has been declining since the early 1990s, especially violence.[3] (See Table 3.)  This is not exactly indicative of a “crime wave” among girls!

So the only conclusion we can logically arrive at is that there has been a change in the response to juvenile behavior, especially girls.  After an exhaustive examination of available data, Meda Chesney-Lind and Katherine Irwin conclude that

increased social control of girls in the family, the peer group, and the school system have served to push increasing numbers of girls into the formal system of social control – the juvenile justice system – for offenses that were previously either ignored or labeled as non-violent offenses.[4]

All of this has resulted in an increasing tendency to detain girls.  Indeed, from between 1991 and 2003, there was a 98% increase in the detention of girls, compared to a 29% increase for boys, plus an 88% increase in the commitment of girls to institutions, compare to only 23% for boys.[5]

            Their conclusion is further substantiated by the longer time period of 1985-2004.  During this time we have seen a growing likelihood of formal processing within the juvenile court.  Specifically, during this time the likelihood of a case being petitioned to court went from 48% to 60% for males and from 35% to 48% for females. This was especially true for drug and public order cases; for males the percentage of drug cases petitioned to court went from 45% to 60%; for females, the percentage increased from 33 to 49; for public order, among males the petition rate went from 45% to 59%, while for females the rate went from 44% to 52%.[6]  Observers of the juvenile court (myself included) continue to note the long waits in crowded corridors and seating areas; and make note of the fact that these are not major felonies being processed here!

            So much for “deinstitutionalization” and “diversion” that was supposed to have begun during the 1970s.  Actually, such a process did in fact start during this time, but was undercut by a strong Republication backlash.[7] What happened was the passage of the Juvenile Justice Act in the 1980s resulting in a narrowing of the definition of status offender so that any child who had violated a “valid court order” would not be covered under the deinstitutionalization provisions. The change allowed judges to reclassify a status offender who violated a court order as a delinquent. This meant that a girl who ran away from a court-ordered placement (a halfway house, foster home, or the like) or simply ran away for a second time could be relabeled a delinquent and locked up.

Before the enacted change, judges apparently engaged in other, less public, efforts to circumvent deinstitutionalization. These included what some have called “bootstrapping” status offenders into delinquents by issuing criminal contempt citations, referring or committing status offenders to secure mental health facilities, or referring them to “semisecure” facilities.[8] 

The so-called “training schools” girls have been sent to have been notorious for abuse, starting with “houses of refuge” back in the early 1800s.  One recent study by Human Rights Watch documented what is done to girls within the juvenile penal system of New York State. Their report, which focused on two training schools for girls, concluded that “far too often, girls experience abusive physical restraints and other forms of abuse and neglect, and are denied the mental health, educational, and other rehabilitative services they need. Because of the facilities’ remote locations, confined girls are isolated from their families and communities.”  Further, they note that

a disproportionate number of girls confined in New York are African-Americans from families who have lived in poverty for generations, with parents or other close relatives who themselves have been incarcerated. In many cases, these girls fall into juvenile facilities through vast holes in the social safety net, after child welfare institutions and schools have failed them. In the wake of legal reform in 1996, girls who commit “status offenses” such as disobedience and running away from home are no longer supposed to be placed in custody, but such offenses—and the related issue of involvement with child welfare agencies because of parental abuse and neglect—continue to function as gateways through which particularly vulnerable children are drawn into the juvenile justice system.[9]

This description also applies to most other “training schools” for girls, as thoroughly documented for the past 100 plus years.[10]  Given such overwhelming evidence one might reasonably ask why we continue to allow such institutions to exist.

What also occurred in the 1980s was a concerted effort to crackdown on domestic violence.  Here is another classic example of “unintended consequences” since girls began to be arrested and referred to juvenile court on charges of “assault.” A study in Maryland found that while virtually all of the “person-to-person” offenses (97.9%) involved “assault,” about half of them were “family centered” and involved such activities as “a girl hitting her mother and her mother subsequently pressing charges,”among others.[11]  Another study examined nearly 1000 girls’ files from four California counties and found that a majority of their offenses involved assault. However, a close reading of these girls’ case files revealed that most of their assault charges were the result of “nonserious, mutual combat situations with parents.”[12] Case descriptions ranged from self‑defense (e.g., “father lunged at [daughter] while she was calling the police about a domestic dispute and [Daughter] hit him”) to trivial arguments (e.g., girl arrested “for throwing cookies at her mother”).^[13]  Some critics have called the trend toward criminalizing behaviors previously ignored or treated informally as “upcriming.”[14]

Not surprisingly, minority girls have received the brunt of such formalized processing, as noted by numerous studies.[15]  One example of this has been the Olweus Bullying Prevention Program, a “zero tolerance” program within many schools.  This program, and others like it, has operated on the assumption that girls and boys are equally as likely to engage in “bullying” and other “aggressive” behaviors on school grounds.  An analysis by Chesney-Lind and Irwin found that while girls’ aggression is mostly of a nonviolent nature, such behavior has been conceptualized as “the equivalent to the physical violence boys tend to commit.”[16]  Since minorities have been far more likely to be singled out this policy has contributed to what Chesney-Lind and Irwin call a “schools-to-jails” track for minorities.[17]

            To summarize, American society has become more formalized than ever before in the reaction to girls’ behavior. What used to be either ignored altogether or treated informally within community settings (e.g., within schools or families) has now been thrust into the juvenile justice system.  This trend is not exclusive to juveniles but applies to adults too.  Witness the huge increase of the incarceration rate, which has grown by more than 500% during the past 30 years, and a continuing growth of the entire crime control industry.[18] The results are far-reaching as more and more girls have been officially labeled as “delinquents.”

            What has been done to address the needs of girl offenders?  Successful programs are few and far between, as the next section will show.

Part II: Programs for Girl Offenders

Girl offenders, while they share many of the same problems as their male counterparts (coming from poor communities and from disrupted and violent families, with difficulties in school), additionally confront sexual abuse, sexual assaults, unplanned pregnancies, and adolescent motherhood.

            Because the majority of delinquency prevention programs are co-ed, the specific needs of girls are either shortchanged or simply ignored because of the population of boys who outnumber them.  Programs that are single-sex within the juvenile justice system provide far more options for boys than for girls.  In fact, back in the mid-1990s a list of “potentially promising programs” identified by the Office of Juvenile Justice and Delinquency Prevention cites 24 programs specifically for boys in contrast to only 2 programs specifically for girls.[19]  Ironically, one program geared for incarcerated teen fathers has no counterpart for incarcerated teen mothers.

            Often programs tend to miss the “at risk” years for girls.  A comprehensive survey of 112 individual youth-oriented programs (for both delinquent and non-delinquent youth) showed less than 8% provided services to girls between the ages of 9 and 15, the crucial determining years of adolescence, and the years when self-esteem plummets.  Rather, services and programs tended to serve girls younger than the age of 9 and those between 14 and 21 years of age.[20]

            Moreover, the few programs available for girls often tend to address single issues, such as teen pregnancy and mothering, although occasionally other problems like substance abuse or gang behavior are included.  This pattern is largely a result of issue-specific funding initiatives, but it means that girls’ often interconnected and overlapping problems get ignored.  Similarly, programs tend to be more reactive rather than preventive, concentrating more on girls who are already in trouble than on girls who are at-risk of getting into trouble.[21]

            Unfortunately, at-risk youth possess high degrees of overlap in services needed; thus, girls who are drug addicts may also have histories of being abused, suicidal tendencies, academic difficulties, and/or be in need of gainful employment.  Patterns of multiple service needs are unfortunately increasing just as public funding to meet these needs has proportionately decreased. (As of this writing – winter, 2008 – national priorities are dominated by the “war on terrorism” and the continued occupation of Iraq.)  Ultimately, at-risk youth’s multiple needs points to the necessity of more comprehensive programming than is available within any one given program or system.