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11 Dispositional Alternatives

Chapter Learning Objectives On completion of this chapter, students should be able to do the following:

List and describe dispositional alternatives Discuss the dispositional phase of the juvenile justice process Discuss probation, conditions of probation, and revocation Discuss the relationship between probation and restorative justice List advantages and disadvantages of foster homes List advantages and disadvantages of treatment centers Discuss juvenile corrections, dilemmas, and consequences Present arguments for and against capital punishment for juveniles Address possible solutions to the effects of incarceration

What Would You Do?

James has been on your caseload for shoplifting for about 4 months. He has had bruises and welts on his arms before, but when asked, he says that they are from falling, roughhousing with his brother, or altercations with kids at school. You have not thought much about them, although you continue to watch him for other signs of abuse. You have also noticed that he is quick to anger, often wears clothes that are inappropriate for the weather, and shies away from being touched.

Today, the community service officer calls you and says that you need to come down to the detention center where the kids are washing cars. He reports that James has some pretty significant marks that he’d like you to look at. Upon arriving, you see James spraying the water hose and laughing and playing with a couple of the other boys. You walk over to him and start a conversation. You notice he’s wearing a long-sleeve shirt and jeans even though it’s almost 80 degrees outside. You also notice that he has the sleeves pulled down even though they are getting wet on the ends. After talking for a minute, you ask him to give the water hose to someone else and to step over to the side of the parking lot with you. He does. You ask him about his home life, school, and brother. Then you ask him if there’s anything he should tell you or anything he’d like to share. He says no. You ask him if he’s been hurt and if he feels safe at home. He shrugs his shoulders and looks away but then nods yes. You then ask him to pull his sleeves up so you can see his arms. He does so and you see 15 to 20 cuts on each arm starting just at the elbow. Some are deep and have started to scab. Others look similar to cat scratches.

When you ask James about the cuts, he shrugs his shoulders and starts to move away from you and back to the car wash area. You again ask him if they are self- inflicted or if someone cut him. He doesn’t say anything. Finally, you get him to stop walking and compassionately ask him who did this to him. He says, “You know my mom . . . she gets mad and stuff.” At this point, you decide to ask him if there are other injuries. He pulls up his shirt to reveal slashes on his back and several small cigarette burns on his side. Then he quickly puts his shirt down and jogs back over to where the kids are washing cars. He tries to rejoin the group and doesn’t look at you again.

What Would You Do? 1. Do you consider the marks signs of abuse? Why or why not? 2. Who would you contact about the abuse, and what would you state in the report you may be required to file? 3. Would you confront the mother about the cuts and marks? Why or why not?

When attempts to divert a child from the juvenile justice network fail, an adjudicatory hearing is held to determine whether the juvenile should be dismissed or categorized as a delinquent; as a minor in need of supervision (or authoritative intervention); or as an abused, neglected, or dependent child. After adjudication, the judge must make a decision concerning appropriate disposition. The judge uses his or her own expertise and experience, the social background (social summary or predisposition) investigation report, and sometimes the probation officer’s or caseworker’s recommendation in arriving at a decision.

Many states use a bifurcated hearing process so that the adjudicatory and dispositional hearings are held at different times. This is often preferred because different evidentiary rules apply at the two hearings. Whereas only evidence bearing on the allegations contained in the petition is admitted at the adjudicatory hearing, the totality of the juvenile’s circumstances may be heard at the dispositional hearing.

The alternatives available to the judge differ depending on the category in which the juvenile has been placed, but in general they range from incarceration to treatment, foster home placement, or probation. In the Gault case, the U.S. Supreme Court specifically declined to comment on the applicability of due process requirements during the dispositional phase of juvenile court proceedings (In re Gault, 1967). Thus, we must turn to state statutes or lower-court decisions in analyzing this process. Keep in mind that the purpose of the dispositional hearing is to determine the best way to correct or treat the juvenile in question while protecting society. To accomplish these goals, the court must have available as much information as possible about the juvenile, his or her background (e.g., family, education, legal history), and available alternatives. Evidence pertaining to the welfare of the juvenile is generally admissible at this stage of the proceedings, and the juvenile should be represented by counsel.

Although some nondelinquent juveniles, typically those found to be in need of supervision, may be confined temporarily in specifically designated facilities, the trend had been toward diverting them to other types of programs. In some cases, the child is permitted to remain with the family under the supervision of the court; in others, custody reverts to the state, with placement in a foster or adoptive home. The extent of

state intervention has been a subject of considerable controversy, but when the welfare of the child is involved, termination of parental rights may be the only way to provide adequate protection.

Delinquent conduct always involves a violation of the law—unlike some of the other conduct dealt with by the juvenile court. There are numerous available dispositions for juveniles in this category, including probation (release after trial with court supervision) under conditions prescribed by the court, placement in a restrictive or secure facility not operated by the department of corrections, and commitment to a public correctional facility. The latter disposition is generally used as a last resort but may be necessary to protect society. In some cases, restitution is used in addition to probation or as a disposition in and of itself. In other cases, weekend incarceration or community-based correctional programs are used. These programs allow juveniles to remain in the community, where they may attend school, work part-time, and participate in supervised activities. The effectiveness of such programs is an empirical question, and many of these programs are not adequately evaluated.

Youth may be sentenced by the juvenile or specialized court to complete community service. In this instance, youth clean the streets rather than be incarcerated.

© iStockphoto.com/Rpsycho

Probation A juvenile delinquent on probation is released into the community with the understanding that his or her continued freedom depends on good behavior and compliance with the conditions established by his or her probation officer and/or the judge. Probation, then, gives the delinquent a second chance to demonstrate that he or she can function in the community. The history of probation goes back to the 14th century, when offenders could be entrusted to the custody of willing citizens to perform a variety of tasks. The founding father of probation is said to be John Augustus, who attended criminal court proceedings during the 1850s and took selected offenders into his home so that they might avoid prison. The city of Boston had hired a probation officer by 1878, other cities and states followed suit, and all states had adopted probation legislation by 1925. The National Probation Act, passed in 1925, authorized federal district court judges to hire probation officers as well (Cromwell, Killinger, Kerper, & Walker, 1985).

A major finding of past presidential commissions has been that the earlier and deeper an offender goes into the juvenile justice system, the more difficult it is for him or her to get out successfully. Unnecessary commitments to correctional institutions often result in “criminalized” juveniles. The revolving door of delinquency and criminality is perpetuated as a result. The fact that there may be a short-term benefit from temporarily removing some juveniles from society should be tempered with the realization that, once released, some juveniles are more likely to jeopardize the community than if they had been processed under adequate probation services in the community where they must eventually prove themselves anyway. Because the goal of the juvenile court is therapeutic rather than punitive, probation is clearly in accord with the philosophy of the court. When circumstances warrant probation, when the juveniles for whom probation is a viable alternative are carefully selected, and when adequate supervision by probation officers is available, probation seems to have potential for success. Failure to take proper precautions in any of these areas, however, jeopardizes chances of success and adds to the criticism of probation as an alternative that coddles delinquents.

Probation is clearly the most frequent disposition handed down by juvenile court judges, accounting for more than 90% of all dispositions in some jurisdictions. Despite pressures exerted by the mass media (in the form of coverage of some exceptionally disturbing offenses committed by probationers), juvenile court judges have generally adopted the philosophy that a juvenile delinquent will usually benefit more from remaining with his or her family or under the custody of other designated persons in the community than from being incarcerated.

In making a disposition, the juvenile court judge traditionally places heavy emphasis on the current offense; the preferences of the complainant; and the juvenile’s prior legal history, family background, personal history, peer associates, school record, home, and neighborhood. In addition, consideration is given to whether justice would be best served by granting probation or whether incarceration is necessary for the protection of the public. There are a multitude of other factors considered by judges, including the juvenile’s attitude toward the offense and whether the juvenile participated in the offense in a principal or secondary capacity. The degree of aggravation and premeditation, as well as mitigating circumstances, is also considered. This information is provided to the judge in the social background investigation (also known as the social summary report or predisposition report).

Once probation has been granted, certain terms and conditions are imposed on the probationer. Within broad limits, these terms and conditions are left to the discretion of the judge and/or probation officer. The requirements that the probationer obey all laws of the land, attend school on

a regular basis, avoid associating with criminals and other persons of ill repute, remain within the jurisdiction, and report regularly to the probation officer for counseling and supervision are general terms and conditions usually imposed by statutory decree. Other requirements that the court may impose include curfews, drug testing, counseling, community service, and restorative justice programming. Although the court has broad discretion in imposing the terms and conditions of probation, these terms and conditions must be reasonable and relevant to the offense for which probation is being granted. For example, in People v. Dominguez (1967), a condition that the female defendant could not become pregnant while unmarried was not considered to be related to the robbery for which she was adjudicated delinquent. The appellate court reasoned that a possible pregnancy had no reasonable relationship to future criminality. In Jones v. Commonwealth (1946), an order of a juvenile court requiring regular attendance at Sunday school and church was held to be unconstitutional because “no civil authority has the right to require anyone to accept or reject any religious belief or to contribute any support thereto.” However, a condition of probation that requires a defendant to pay costs or make restitution is generally upheld provided that the amounts ordered to be paid are not excessive in view of the financial condition of the defendant. Any condition that cannot reasonably be fulfilled within the period fixed by the court is not likely to be upheld.

The importance of adhering to the terms and conditions of probation is stressed because violations constitute a basis for revocation of probation and the imposition or execution of the sentence that could have been given originally by the judge. There are generally three types of violations: (1) technical, (2) rearrest for a new crime or act of delinquency, and (3) absconding or fleeing jurisdiction. A technical violation is usually characterized by the probationer flagrantly ignoring the terms or conditions of probation but not actually committing a new act of delinquency. For example, deliberately associating with delinquent peers might lead to revocation if such behavior was prohibited as a condition of probation. Typically, technical violations include minor infractions on behalf of the probationer. Technical violations are generally worked out between the probationer and probation officer, and they usually do not result in revocation action unless the probationer develops a complete disregard for the terms or conditions of probation. A rearrest or new custody action due to a new act of delinquency is obviously a serious breach of probation. The seriousness of the new act of delinquency is important in determining whether revocation proceedings will be initiated. Most rearrests are viewed by probation officers as serious and usually result in the revocation of probation, although there is some room for discretion. Although absconding or fleeing the juvenile court’s jurisdiction may be considered a technical violation, it is generally considered separately and may result in revocation action.

Release on probation is conditional (i.e., probation as conditional release)—that is, the liberty of the probationer is not absolute but rather subject to the terms and conditions being met. Although the probation officer may seek a revocation of probation, the court will ultimately determine whether to revoke probation. When juveniles violate the conditions of supervised release and face revocation of probation, issues of due process with respect to right to counsel and standard of proof arise. In Morrissey v. Brewer (1972), the U.S. Supreme Court held that although a parole revocation proceeding is not a part of the criminal prosecution, the potential loss of liberty involved is nevertheless significant enough to entitle the parolee to due process of law. First, the Court held that the parolee is entitled to a preliminary hearing to determine whether there is probable cause to believe that a violation of a condition has occurred. Second, an impartial examiner will conduct the hearing. Finally, notice of the alleged violation, purpose of the hearing, disclosure of evidence to be used against the parolee, opportunity to present evidence on the parolee’s own behalf, and limited right to cross-examination are allowed under due process. Subsequently, in Gagnon v. Scarpelli (1973), concerning the issue of probation revocation proceedings, the Court held that a probationer was entitled to the same procedural safeguards announced in Morrissey v. Brewer (1972), including requested counsel. Previously, in Mempa v. Rhay (1967), the Court held that when the petitioner had been placed on probation and his sentence deferred, he was entitled by due process of law to the right to counsel in a subsequent revocation proceeding because the revocation proceeding was a continuation of the sentencing process and, therefore, the criminal prosecution itself. Most courts, in the absence of statute, have held that the probation violation need be established only by a preponderance of the evidence even if the violation is itself an offense.

There are several dispositions available in revocation hearings. If the charges are vacated, the probationer may be restored to probation or the conditions may be altered, may be amended, or may even remain the same. The revocation may be granted with a new disposition generally resulting in an intermediate sanction or a commitment to a juvenile correctional institution. The juvenile may also be sentenced to a treatment center if the revocation was due to behavior requiring treatment such as drug or alcohol abuse.

Although the length of probation varies among states, the maximum term of probation for the juvenile is usually not beyond the maximum jurisdiction of the juvenile court. Most terms of juvenile probation are between 6 months and 1 year, with possible extensions in most states. Probation dispositions are usually indeterminate, leaving the release date up to the discretion of the probation officer. On successful completion of the probation period, or on the recommendation of the probation officer for early discharge, termination of probation releases the juvenile from the court’s jurisdiction.

Although probation serves the purpose of keeping the juvenile in the community while rehabilitation attempts are being made, there are some potential dangers built into this disposition. Learning and labeling theories indicate that proper supervision of probationers is essential if rehabilitation is to occur. Otherwise, the juvenile placed on probation may immediately return to the “old gang” or behavior patterns that initially led to his or her adjudication as delinquent.

Similarly, the juvenile placed on probation, while remaining with his or her family, may end up in the same negative circumstances that initially led to delinquent behavior except that he or she has now been labeled and is, more or less, “expected” to misbehave. The labeling process may exaggerate problems in family, school, and peer relations, and the juvenile may find it difficult to meet the expectations established for him or her. In many cases, the only positive role model available is the probation officer, whose caseload may preclude seeing the juvenile for more than a few minutes a week.

To remedy the problems of limited probation officer time and lack of sufficient supervision of the probationer, several strategies are employed.

The first of these is electronic monitoring, which uses technology to track the whereabouts of the probationer. A bracelet is placed on the wrist or ankle of the juvenile in question, and his or her whereabouts can be determined by signals transmitted and picked up by a receiver maintained by the probation officer. In some cases, the juvenile is placed under house arrest for a specified period; in other cases, the juvenile may be allowed to go to school or work but must be home during certain hours. A second strategy involves intensive supervision, which is usually reserved for juveniles facing their last chance before incarceration. Probation officers working in intensive supervision programs have limited caseloads, make frequent contacts with their charges, make contacts with the families of the probationers, contact school authorities and/or employers periodically, work with clients at times other than normal working hours, and keep extensive records of their contacts. They typically review the conditions of probation regularly and adjust them as needed. A third strategy involves the use of day reporting centers (DRCs) (in combination with the two strategies discussed previously or by itself). DRCs provide highly structured, nonresidential programs for series juvenile offenders. They offer a wide range of services such as educational or GED classes, drug and alcohol treatment, conflict resolution, life-skills training, and anger management, to name a few. The offender is required to report to the DRC daily for a specified period. The assumptions on which these programs are based are that the probation officer as role model, supervisor, and disciplinarian will be more effective if he or she spends more time with each client and the disposition of probation will be more effective if the client is heavily supervised and involved in diversion programming.

Another attempt at providing better probationary services for delinquents involves contracting with private agencies. The Office of Juvenile Justice and Delinquency Prevention (OJJDP) and other state and local agencies have contracted with private organizations to provide services (e.g., counseling, job readiness skills, and wilderness programs) for probationers to supplement the public services provided. The American Correctional Association (2012) supports the use of private services in its policies, maintaining that the government is ultimately responsible for corrections and should use all resources available to accomplish the goals of corrections. In 2004, the OJJDP (2004a) reported that there are more privately run secure and treatment facilities for juveniles than public facilities, although public facilities hold the majority of juveniles. “In 2010, private facilities accounted for 51% of facilities holding juvenile offenders; however, they held just 31% of juvenile offenders in residential placement” (Hockenberry, 2013, p. 3). In 1999, the American Correctional Association conducted a survey concerning private sector involvement in juvenile corrections. The survey revealed that 46 jurisdictions indicated they had at least one active private-sector contract. The main reason given for such a contract was that private-sector vendors could provide services and expertise that were lacking in the jurisdictions in question (Levinson & Chase, 2000).

One more addition to probation services has been restorative justice practices. Restorative justice (see Chapter 10) is a philosophy that has been adopted by juvenile courts as a supplement to probation services. The roots of restorative justice can be traced to 1974 in Ontario, Canada. The Mennonite Central Committee, through the help of a probation officer, created the first mediation program involving the basic principles of restorative justice. This program, called a victim–offender reconciliation program, used the payment of restitution directly to the victim by the offender as its core. Traditionally, payment of restitution to the victim was handled directly by the probation office in an impersonal manner. By forcing the offender to pay the restitution directly to the victim, the process was construed as a repayment for loss and damages to an individual rather than a state-mandated court fine for a harm done to the state. The success of this program initiated interest in restorative justice in the United States and in other parts of Canada.

Elkhart, Indiana, was the first U.S. city to initiate a victim–offender mediation program during the late 1970s. As the philosophy grew, a nonprofit organization called the Center for Community Justice, based on the restorative justice philosophy, was created in 1979. Since the 1980s, restorative justice has been called by a variety of different names depending on the agency applying its concepts. Although the name may change, the definition and core concepts of restorative justice—accountability, competency, and public safety—remain the same in all programs.

First, accountability in restorative justice is used to explain how offenders are to respond to the harm they have caused to victims and the community. Accountability requires that offenders take personal responsibility for their actions, face those they have harmed, and take steps to repair harm by making amends. Much of the literature regarding restorative justice calls this process “making things right” or “repairing the harm” (Center for Restorative Justice and Mediation, 1996; Restorative Justice for Illinois, 1999). In one state example, Illinois has used the restorative justice philosophy in its juvenile court since 1999 and has been implementing restorative justice programming across the state. As noted in Figure 11.1, many of the programs, discussed shortly, focus on accountability as well as other restorative justice approaches.

Second, restorative justice requires competency on behalf of offenders. Competency is not the mere absence of bad behavior; it is the provision of resources for persons to make measurable gains in educational, vocational, social, civic, and other abilities that enhance their capacity to function as productive citizens (Bazemore & Day, 1996; Restorative Justice for Illinois, 1999). Restorative justice suggests that programs be designed to promote empathy in offenders, to teach effective communication skills to offenders, and to develop conflict resolution skills in offenders. Programs such as victims of crime impact panels (VCIPs), victim–offender mediation programs, and programs sponsored by community-run self-help groups such as Mothers Against Drunk Driving (MADD) strive to teach competency to offenders. One competency program is being used in southeast Missouri for juvenile offenders. This program uses a VCIP to increase empathy levels in juvenile offenders by asking victims of crime to tell offenders how the crimes have affected their lives. MADD offers a similar program by using victim impact panels to build empathy in offenders of drunk driving.

Figure 11.1 Restorative Justice Practices From Illinois

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Source: Illinois Balanced and Restorative Justice Initiative (n.d.).

Public safety is the third area of restorative justice. “Public safety is a balanced strategy that cultivates new relationships with schools, employers, community groups, and social agencies” (Restorative Justice for Illinois, 1999, p. 1). Public safety also facilitates new relationships with victims. “The balanced strategy of restorative justice invests heavily in strengthening a community’s capacity to prevent and control crime” (Bazemore & Day, 1996, p. 7). The concept of public safety relies heavily on the community. The community, according to restorative justice, should make sure of the following:

The laws which guide citizens’ behaviors are carried out in ways which are responsive to our different cultures and backgrounds— whether racial, ethnic, geographic, religious, economic, age, abilities, family status, sexual orientation, and other backgrounds—and all are given equal protection and due process. (Center for Restorative Justice and Mediation, 1985, p. 1)

Restorative justice also proclaims that crime control is not the sole responsibility of the criminal justice system but rather is the responsibility of the members of the community. Sentencing circles, reparative boards, and citizen councils are examples of the public safety concept in application.

Reducing recidivism is typically the baseline for showing that a program is effective. In a review of restorative justice programs, Umbreit, Vos, and Coates (2006) found that reports examining recidivism rates after victim–offender mediation and group circles have been mixed. Rodriguez (2007) found that juveniles in a restorative justice program in Maricopa County, Arizona, were less likely to recidivate than juveniles in the comparison group when controlling for legal and extralegal factors. Hayes and Daly (2003) reported that those juveniles who believe that the reparation plan is arrived at in consensus instead of being forced on them are less likely to reoffend than are those who do not. Studies on restorative justice have been plagued by methodological and quality issues, thus it’s difficult to compare results across studies or to say that restorative justice is completely effective in reducing recidivism, as discussed in Chapter 10 (Bradshaw & Roseborough, 2005).

The participants in a balanced and restorative justice system are crime victims, offenders, and the community. Crime victims are essential to the success of the restorative justice process because they are involved in the healing and reintegration of the offenders and themselves. Crime victims receive support, assistance, compensation, and restitution. The offenders participating in restorative justice programs provide repayment to their communities and are provided with work experience and social skills necessary to improve decision making and citizen productivity. The community is involved by providing support to both the offenders and crime victims. The community provides individuals, besides criminal justice personnel, to act as mentors to the offenders and provides employment opportunities for the offenders.