New Research and Juvenile Justice Reforms Help Kids Who Commit Crimes Get Back on the Right Track
By Anne Teigen
In one of Xavier McElrath-Bey’s first memories, he is 6 years old, piling into the back of a police car with his brothers and sisters. He is being taken to foster care, away from the home he shared with his mother and abusive, alcoholic stepfather, after it was determined that he and his siblings were in danger.
Growing up on Chicago’s South Side, he was familiar with poverty, drugs and crime. Violence was inescapable: He endured beatings from his father, two stepfathers, a foster mother and police officers. His family often went without food and other necessities, constantly faced eviction and often lived without electricity. He and his siblings helplessly watched their mother and brother battle with mental illness.
At age 11, feeling safer in the streets than in his own home, McElrath-Bey ran away and joined a gang. Looking back, he says, the gang fulfilled his fundamental needs of love, safety and belonging that he did not always get at home. But shortly after joining the gang, he and his best friend were playing with a gun that was given to them by another gang member. Suddenly, blood was rushing from his mouth, nose and ear. His friend had accidently shot him in the face. A week after being treated and released from the hospital, McElrath-Bey was arrested for obstruction of justice. Protecting his friend, he had refused to reveal who shot him. “I was locked up for my own shooting,” he says. Still suffering from his gunshot injuries, he spent a week and a half in juvenile detention before eventually being sentenced to probation, with no follow-up medical services or care.
Then in 1989, McElrath-Bey’s life crashed. Having not even finished the eighth grade, with a juvenile criminal record consisting of 19 arrests and seven convictions, McElrath-Bey, then 13, was convicted and sentenced to adult prison for 25 years for his involvement in the gang-related murder of a 14-year-old boy.
“The fact is, [the victim] was a child, you know? I mean, I was too, but still that doesn’t take away any guilt from me,” he says. “It was a very horrific, very heinous incident that took place. And that’s what I have to live with.”
Fast forward to the present. McElrath-Bey holds a bachelor’s and a master’s degree in social science from Roosevelt University and is a senior adviser to the Campaign for the Fair Sentencing of Youth and a co-founder of the Incarcerated Children’s Advocacy Network. He has a remorseful heart and a deep-rooted mission to advocate for at-risk youth. Last year, he stood calmly at a podium and shared his story with a group of state legislators from across the country at the first meeting of the NCSL Juvenile Justice Principles Work Group.
Brain Research Changes Minds
When youth violence started to climb in the 1980s and reached a peak in 1994, the country lost confidence in its ability to rehabilitate serious juvenile offenders like McElrath-Bey. Legislatures in all 50 states passed laws moving away from rehabilitation for juveniles toward tougher responses. These included greater use of out-of-home placement and sending young offenders into the adult criminal justice system.
Policymakers now have better information on the causes of juvenile crime, what can be done to prevent it and how brain development shapes teens’ behavior. Research shows that adolescents are by nature immature, emotional and impulsive, and more susceptible to committing delinquent acts. Adolescents, whose brains do not fully develop until age 25, differ from adults in how they recognize and respond to risks, in their susceptibility to the influence of peers, and in their capacity for change.
The bipartisan NCSL Juvenile Justice Principles Work Group, comprising 15 state legislative leaders in juvenile justice policy from across the country, was formed in 2017 to help states identify and invest in proven methods to put justice-involved youth back on the right track, while also keeping communities safe.
In addition to hearing McElrath-Bey’s powerful presentation, the work group examined the fundamentals of data-driven research and policymaking, reviewed the latest adolescent brain development research, and learned about current judicial and agency perspectives on juvenile justice reform. Seeking solutions that were both fiscally responsible and effective, the group developed 12 principles to help states construct juvenile justice policy, and incorporated examples from the states, including successes, challenges and lessons learned.
“The group focused on a variety of interventions that each state could tailor to their own needs,” says North Dakota Senator Diane Larson (R), who was a youth worker with the Bismarck Police Department. Members agreed that the principles had to encourage fiscal responsibility, protect and enhance public safety, hold youth accountable, nurture successful life skills, preserve and strengthen families, and promote fairness. The group determined that juvenile justice policies and funding decisions should be based on data and research, should eliminate unfair racial and ethnic disparities, and should provide restorative responses to crime that can address the needs of the victim, community and the young person.
The Importance of Data
“Data drives everything,” South Carolina Senator Gerald Malloy (D) says. In fact, the 12 principles are rooted in data analysis. Information from the National Center on Mental Health and Juvenile Justice, for example, showed that in 2016 at least 75 percent of youth involved in the juvenile justice system had experienced traumatic victimization. Another study, in 2013, of youth in detention found that more than 90 percent of them had experienced at least one traumatic event, 84 percent had experienced more than one and more than half reported experiencing six or more traumas.
“If the vast majority of juvenile offenders are victims exposed to trauma, don’t we need to track our victim resources to intervention with some of these young offenders?” Illinois Senator Kwame Raoul (D) asks. Recognizing the magnitude of the problem revealed by the data, the work group drafted Principle No. 11: State laws should structure resources so that justice-involved youth who have experienced trauma and victimization can access services and funds for victims.
Some states, including Massachusetts, Ohio and Texas, have taken advantage of new guidelines for using federal dollars to serve more youth who have been exposed to violence. States are also making strides in aiding juvenile sex-trafficking victims, many of whom end up in the juvenile system. More than half the states have enacted laws in recent years protecting and providing resources to these young trafficking victims, treating them not as offenders, but as victims.
The data also show that cases as serious as McElrath-Bey’s are outliers and represent only a fraction of those in the juvenile justice system. New research from The Pew Charitable Trusts reveals that many juveniles in out-of-home placements are being confined for misdemeanors or noncriminal offenses, rather than for serious or violent crimes. In 2015, 23 percent of youth in residential facilities nationwide were there for status offenses—truancy, running away, underage drinking and other behaviors that do not violate the law if committed by an adult—or technical violations of supervision, such as skipping meetings with a probation officer.
The Kansas Lesson
A 2015 analysis of the Sunflower State’s juvenile justice system found that youth who had committed minor offenses accounted for a large share of both residential beds and probation services, even though secure beds cost about $39,000 more annually than the $50,000 beds in group homes. More than two-thirds of the Kansas Department of Corrections’ budget ($53 million-plus) was spent on out-of-home placements, even though probation is significantly less costly and evidence suggests it is more effective at reducing recidivism.
“A huge change in mindset needed to go on,” Kansas Representative Blaine Finch (R) says. “Children with mental health issues who were a danger to themselves were being sent to detention and not receiving other interventions. Detention was being used as a one-size-fits-all solution for every kid.”
Kansas lawmakers enacted a comprehensive bill in 2016 that limited eligibility for out-of-home placement by requiring the court to satisfy specific criteria. The law also contains provisions requiring the savings from the reductions in out-of-home placements to be invested in evidence-based programs that address the risks and needs most associated with each youth’s offending behavior, including cognitive behavioral and functional family therapy.
Involvement in the juvenile justice system can have unintended adverse consequences for young people, including exposing them to others more experienced with criminal behavior, and reducing the likelihood that they will graduate from high school.
“What is important,” Colorado Representative Pete Lee (D) says, “is to keep the kids out of the system altogether with early diversion.”
Diversion programs typically allow a young person to complete certain requirements in lieu of being formally charged with an offense, or in exchange for the original charges being dismissed or reduced. Diversion can correct problem behaviors without involving the justice system, and research has shown that it can be more effective in reducing recidivism than conventional judicial interventions.
West Virginia’s Version of Diversion
The West Virginia Legislature increased opportunities for diversion in 2015 by authorizing school-based probation officers and social workers to work with schools, youth and families to address problem behavior before a juvenile’s actions result in a court appearance.
The law also allows prosecutors and courts to handle low-level, nonviolent offenders by diverting them to victim-offender mediation, or by requiring them to pay restitution or perform community service, in lieu of being formally charged with an offense. Diversion is not always an appropriate response, of course, and young people do become formally involved in the justice system. For these cases, the NCSL work group looked to the example set by recent legislative enactments in Georgia and Utah that strived to keep youth in their communities when at all possible and to minimize the amount of time juveniles spend in out-of-home placement.
“Although national momentum grows behind the importance of data-driven policies we still have to confront an old-school mentality that prefers harsher penalties, treating juveniles the same way we’ve long treated adults,” says Kentucky Senator Whitney H. Westerfield (R). “This ‘tough on crime’ approach makes for good campaign speeches, but fails the child. … I vividly remember school administrators acknowledging they ultimately wanted what they called ‘the hammer,’ the ability to detain a child, getting them out of the classroom, without regard to whether that approach actually improves behavior. Such shortsighted beliefs are still widely held and pose a significant challenge for states considering reforms.”
While many states have reformed aspects of their juvenile justice systems, preventing and addressing juvenile crime and delinquency remain perennial issues in legislatures across the country. This year alone, legislators in 45 states have considered more than 500 juvenile justice bills.
Now in his 40s, McElrath-Bey continues to work at the Campaign for the Fair Sentencing of Youth. His focus is on ending extreme sentencing for children. He travels the country educating policymakers on Miller v. Alabama, the 2012 U.S. Supreme Court case that found mandatory life sentences without the possibility of parole for juveniles to be unconstitutional. The court ruled that sentences of life without parole were still permissible, but that they could be imposed only after judicial consideration of individual circumstances and that the court must consider the offender’s maturity level. Some states have amended their laws to designate how many years a juvenile must serve before being eligible for parole review. But, since the Miller case, 25 states and the District of Columbia have chosen to ban or no longer use life without parole, thanks in part to McElrath-Bey’s work.
Lawmakers need to know “that their decisions can provide meaningful outcomes for kids, even kids that have at times made horrible mistakes,” he says. “Sadly, age-appropriate treatment and fair treatment of kids was not the norm when I went through the justice system as a child.”
Anne Teigen is NCSL’s expert on juvenile justice.
Note: This article appears in the print edition of the June 2018 issue, with the headline “New Approaches, Changing Lives.”