Rethinking Youth Release: An Analysis of the South Carolina Board of Juvenile Parole in the Context of the Evolving Landscape of Reforms of Juvenile Release Authorities
By
By
Aleksandra Chauhan, Ph.D., J.D.[1]*
The history of juvenile courts depicts a fluctuation of approaches to youth sentencing, from rehabilitative to punitive. Recently, based on increasing research on adolescent nature of offending, harms of incarceration, counterproductive effects of prolonged incarceration and studies on recidivism, many states have engaged in a meaningful reform of their juvenile justice codes, with emphasis on reducing lengths of commitments. Some of these reforms curtailed the discretion of judges to order indefinite sentences and some translated into creation of guidelines for juvenile parole boards that reflect the evidence-based research.
This Article contributes to three streams of academic discourse. First, it identifies the evolving laws on youth sentencing: from offender-based to offense-based. Second, it fills an important gap in research on a study of juvenile parole boards. Over the years there has been significant research on adult parole boards and release decision for youth charged as adults. Yet, there is no existing analysis of juvenile release authorities. By examining the South Carolina Board of Juvenile Parole and comparing it to other juvenile parole boards, the Article contributes to research on the juvenile release mechanism. Third, it creates a model for existing juvenile parole boards to reform their policies and become evidence based. The Article argues that juvenile parole boards must follow science and they must revise their policies based on the data they collect and evidence-based research.
The first juvenile court focused on youth rehabilitation, with emphasis on guidance, education, and counseling.[2] A deep paternalism and solicitude toward young people shaped the rhetoric of the legal reformers of the late nineteenth and early twentieth centuries, the Progressive Era. The Progressives viewed the state as a benevolent super-parent endowed with the responsibility and authority to safeguard children and foster their growth into productive adults.[3] With the rise of research on adolescents’ development, the reformers started to recognize that adolescents were emerging from childhood but were not fully formed adults.[4] They grouped them with younger children and advocated paternalistic policies.[5] The sentences were offender-based,[6] and the courts had unlimited discretion to sentence both young children and adolescents to indeterminate sentences lasting for the duration of minority.[7] Because the courts focused on rehabilitating the young person, the needs of the child were of more importance than the crime they committed.[8] A convergence of the juvenile court with the adult court and thus more punitive dispositions for young people came in 1960s, after the U.S. Supreme Court recognized in In re Gault that young people were entitled to many of the same constitutional protections as adults.[9] The shift to offense-based sentencing followed in 1970s, when retribution displaced rehabilitation.[10] The next two decades witnessed rising crime rates among adolescents and thus even more push towards very punitive measures in the juvenile justice system.[11] Determinate and mandatory minimum sentences became more popular than indeterminate sentences, and judges’ dispositional discretion was curtailed.[12] The duration of youth sentences was directly related to the offense and agencies used offense-based administrative or parole-release guidelines to establish length of stay.[13]
Over the last ten years, various state, local, and tribal authorities have initiated substantial efforts to reform their juvenile justice systems.[14] This includes minimizing the reliance on juvenile detention and out-of-home placement, addressing racial and ethnic disparities more attentively, exploring methods to involve affected families in the decision-making process, and extending the age at which juvenile court jurisdiction concludes.[15] These transformations reflect an increased recognition of the inefficacy of punitive measures and a growing understanding of adolescent development.[16] Many call it the “children are different” era, following the line of Supreme Court cases prohibiting capital punishment for children,[17] requiring consideration of youth as mitigating factor in sentencing,[18] limiting life without the possibility of parole sentences for children committing the most severe offenses,[19] and establishing a reasonable child standard for purposes of interrogation.[20] Many states have moved away from punitive approaches and have embraced evidence-based practices that prioritize community-based alternatives, rehabilitation, and addressing the underlying issues that contribute to delinquency.[21] These reforms are based on a body of empirical research that calls into question the effectiveness of the juvenile justice intervention, such as incarceration,[22] and incorporate evidence-based research on adolescent development,[23] recidivism,[24] and desistance from crime.[25] Because of these reforms, most states have reinforced the traditional, rehabilitative approach in handling most delinquency adjudications.[26] At the same time, there has been a reduction in the use and length of confinement as a response to delinquent behavior.[27] This shift is grounded in evidence suggesting that prolonged confinement tends to heighten the risk of reoffending rather than diminishing it.[28]
South Carolina is an example of a state that stubbornly refuses to pay attention to science and continues to follow rigorous and retributive offense-based sentencing schemes from the 1990s. The glimpse of hope came in 2019 when the legislators passed Act No. 268 of 2016 raising the age of a child to eighteen.[29] Following that, the President of the Senate appointed a Senate Select Committee on Raise the Age and assigned the Committee to look at the impact of implementation of the law on the juvenile justice system.[30] The Committee held numerous visits of the South Carolina Department of Juvenile Justice (SCDJJ) sites, reviewed materials, researched pertinent issues, and met with stakeholders on several occasions to discuss a bill drafted by Senator Gerald Malloy, proposing a comprehensive reform of South Carolina juvenile justice system.[31] The Committee held a public hearing to review the bill’s draft and voted on its provisions.[32] The Committee then filed it during the 2020 session.[33] The bill, known as the Juvenile Justice Reform Act of 2020, aimed at reforming the Couth Carolina Children’s Code to reflect that the juvenile justice system should follow a rehabilitative model, with detention and incarceration being a last resort.[34] If passed, it would drastically reduce the length of stay of young people in youth prisons and allow for post-disposition representation and regular judicial review hearings for incarcerated youth.[35] The Juvenile Justice Reform Act of 2020 was originally filed in December 2019 as SB 1018. It was re-filed in January 2020 as SB 53, and again in January 2023 as SB 278.[36]
Legislative changes are not the only way a state can reform its sentencing system. In the example of South Carolina, the South Carolina Board of Juvenile Parole (Board) is the releasing authority.[37] The Board also creates guidelines that establish the length of time youth stay at SCDJJ facilities.[38] The current guidelines are offense-based and reflect the punitive schemes of 1990s.[39] The Board then has authority to reform its guidelines, policy and procedure to embrace evidence-based practices and reflect the evidence-based research on adolescent development, harms of incarceration, and recidivism.[40]
South Carolina is one of five states in the United States that relies on a governor-appointed release authority mechanism.[41] States vary significantly in their mechanisms in which they release youth sentenced to indeterminate sentences. According to the data compiled by the National Center for Juvenile Justice in 2016, twenty-two states entrusted their power to decide when a committed youth is to be released from incarceration to the community to the agency or institution to which the youth has been committed.[42] In ten states, the court has sole authority to decide the release.[43] The data reflects that, in 2016, eleven states allow for shared discretion between the agency and the court, and eight states entrust parole boards to make the release decisions.[44]
There has been substantial research done on adult parole boards, their decision-making, and constitutionality of their approach to youth sentenced in adult courts.[45] Publications on youth parole boards or other youth release authorities are scarce.[46] As long as indeterminate sentences remain common, there is a need for understanding how the length of those sentences is actually decided and in many states, that would mean understanding release authorities and parole guidelines. Also, policymakers need to comprehend how the various release mechanisms work, so they can make an intelligent choice between them.
This Article attempts to fill in the gap by analyzing the South Carolina Board and juxtaposing it by an overview of other states’ parole boards and release authorities. Considering the complexity of the subject, this Article marks the beginning of what will be a series of research papers on youth sentencing and various release mechanisms. The biggest limitation of this Article is that it does not discuss the discriminatory aspect of sentencing and release process in South Carolina or elsewhere. It is the author’s position that racial discrimination has been evident in every stage of the juvenile justice process from the inception of the juvenile justice system to now. The subject is of such importance that it needs to be distinguished in a separate Article.[47]
Part I of this Article outlines the juvenile justice system’s history of sentencing and examines the legislative reforms various states have enacted in the last decade, with specific focus on upper limits of incarceration and release authorities. It explains the science on adolescent psychology, brain, and effect of trauma and victimization on young people’s behavior. It also presents extensive research on harms and counterproductive outcomes of prolonged youth incarceration. Part II describes the South Carolina Juvenile Justice System, its philosophy, the unconstitutional conditions of the SCDJJ facilities, lack of focus on youth rehabilitation, and the strikingly high numbers of youth recidivism in the state. It also points out to other states that either have a juvenile parole board or have reformed their parole system altogether and shows their evidence-based approach to youth sentencing. Part III offers new approaches to the decision-making process for paroling authorities based on research and science. The Article concludes with suggestions for future reforms to the South Carolina Board of Juvenile Parole and other boards nationwide.
The history of juvenile crime policy over the course of the last three centuries is a narrative about the transformation of the law’s view of young offenders.[48] Prior to the establishment of a distinct juvenile justice system, children who committed crimes were often treated similarly to adult offenders.[49] There was little recognition of the differences between children and adults in terms of culpability and development.[50] The Progressive Movement at the turn of the twentieth century played a significant role in shaping the juvenile justice system.[51] Reformers such as Judge Julian Mack viewed youths involved in crime first and foremost as children and advocated for a more rehabilitative and child-focused approach.[52] In fact, those children were viewed as no different from children who were subject to parental abuse and neglect.[53] The establishment of the first juvenile court in Chicago in 1899 is often considered a landmark event.[54] This court, led by Judge Mack, aimed to provide a more informal and rehabilitative process for young offenders.[55] The focus was on the best interests of the child, and the court aimed to act as a benevolent parent rather than an adversarial system.[56] The idea was to address the root causes of juvenile delinquency rather than simply punish young offenders. The founders of the juvenile court advocated against assigning criminal responsibility to the offenses of children.[57] According to them, children were not criminally responsible because they lacked the capacity for reasoning, moral understanding, and judgment on which attributions of blameworthiness rest.[58]
During the first half of the twentieth century, the prospect of rehabilitating youth offenders gained momentum. The system expanded across the United States, and various states established juvenile courts with a focus on individualized treatment and support services.[59] The emphasis was on education, counseling, and guidance.[60] The courts had full discretion regarding the disposition of the cases.[61] The indeterminate dispositions had no set limit that could continue for the duration of minority.[62] When courts committed children to indeterminate sentences, the institutions would have the releasing authority.[63] Those dispositions rejected limits on the length of disposition based on what the child did. Each child was different, and dispositions addressed their future needs, and their offense did not limit the duration or intensity of intervention.[64] The Progressives’ assumptions about youth and the rehabilitative vision of juvenile court prevailed at least in theory until the 1960s with a shift in the juvenile justice system to focus on due process rights for youth offenders.[65] In the seminal case of In re Gault, the U.S. Supreme Court ruled that young people were entitled to many of the same constitutional protections as adults, including the right to legal representation and the right to confront their accusers.[66] The Due Process Revolution of the Civil Rights was the time when the “flexibility” and “informality” that were once championed as hallmarks of the rehabilitative mission of the early juvenile courts came under attack.[67] The Supreme Court in Kent v. United States and again in In re Gault, concluded that juvenile court was the “worst of both worlds,” providing neither the individualized rehabilitation promised to youth, nor the procedural rights afforded to adults.[68] The Court was clearly concerned about the wide discretion the judges exercised at sentencing and the absence of “careful, compassionate, individualized treatment”—exactly what the discretion at disposition hearings was supposed to facilitate.[69] Yet, the Court decided not to rule on the dispositional process and thus it ignored the substance of juvenile law, the “unique sentencing or dispositional powers accorded to [juvenile court] judges.”[70] Despite the intention of the Supreme Court not to change the therapeutic nature of juvenile courts, decisions like Gault, along with subsequent judicial, legislative, and administrative changes, have led to a convergence of the juvenile court with adult criminal courts.[71] Subsequent Supreme Court decisions[72] transformed the juvenile court from its original progressive vision as a social welfare agency into a component closely tied to the criminal justice system.[73] And, as Fled asserts, “ironically, Gault and Winship’s insistence on greater criminal procedural safeguards in juvenile courts may have legitimated more punitive dispositions for young offenders.”[74]
In the 1970s, just deserts and retribution displaced rehabilitation and became the driving factor in juvenile sentencing.[75] Deserts-based sentences concentrate on an offender’s prior conduct rather than practical factors such as rehabilitation, deterrence, or confinement.[76] In contrast, determinate sentences apply penalties that look back, considering the nature of the offense, the level of culpability, or the individual’s criminal history.[77] In The Struggle for Justice, the American Friends Service Committee contended that indeterminate sentences provided excessive discretion to judges, resulted in racial disparities, and violated proportionality norms.[78] They advocated for shorter fixed sentences and the elimination of parole.[79] Conservatives argued that indeterminate sentences led to premature release of dangerous offenders, making crime a focal point in their political agenda.[80] Their emphasis on personal and justice system accountability challenged the legitimacy of the welfare state and government programs.[81] Liberals, critical of the perceived inefficacy of rehabilitation, struggled to present coherent alternatives to tough-on-crime proposals and eventually, they joined the law-and-order movement to avoid being labeled as soft on crime.[82] Adopting offense-based sanctions allowed conservative politicians to openly endorse punitive measures and enact strict laws.[83]
Amid concerns about rising crime rates, the 1980s and 1990s witnessed a push towards more punitive measures in the juvenile justice system.[84] This era also saw a rise in the use of incarceration for youth offenders.[85] Many states adopted laws allowing for the transfer of juveniles to adult criminal court for certain offenses.[86] More than 250,000 youth were transferred to adult courts per year during these legal reforms.[87] States also required juvenile court judges to impose determinate sentences or mandatory sentences based on age, offense and prior record.[88] That and the transfer laws deemphasized treatment in favor of personal and justice system accountability.[89] States’ departments of corrections used offense-based administrative or parole-release guidelines to determine length of stay.[90] Offense-based sanctions were to be proportional to the offense and have retribution and deterrence as their goal.[91] “Blended sentencing” also became popular.[92] Judges would mix together the adult and juvenile sentence methods to “provide for longer sentences for serious crimes than otherwise would be available to the juvenile court, or to increase the rehabilitative sentencing options available to criminal courts.”[93] Also, judges’ discretion became curtailed as legislatures created and expanded offense-based rules for sentencing,[94] including offense-specific parole release guidelines,[95] and minimum offense-specific juvenile court sentences.[96] Feld points out that the same jurisprudential shifts from offender to the offense and from treatment to punishment that contributed to changes in transfer policies have had an impact on sentencing scheme for serious delinquent offenders.[97]
Despite the fact that the number of violent offenses committed by youth has decreased drastically since the 1990s,[98] juvenile court dispositions today include more incarceration and for longer periods—extending well into adulthood under some statutes.[99] The legislators continue to give judges wide discretion to sentence youth to indeterminate periods of time up to a specified ceiling prescribed by the legislature, the juvenile-court judge, or the state juvenile-justice agency.[100] Given the complexity of the dispositional statutes, it is difficult to be precise about the number of states that allow for strictly indeterminate manner of sentencing versus the ones that have only determinate options for dispositions.[101] In many instances, judges can sentence youth to either a determinate sentence or an indeterminate one, with the latter usually reserved for the most serious offenders. Moreover, thirteen states “blend” the contingent criminal sentence with the traditional juvenile disposition based on the underlying delinquency finding.[102]
From 2013 to 2018, eight states—Georgia, Hawaii, Kansas, Kentucky, South Dakota, Tennessee, Utah, and West Virginia—passed expansive legislation to impose offense-based limits on judges’ power to order severe punishments.[103] These reforms were designed to counteract the rise in incarceration rates for minor offenses that occurred during the tough-on-crime era.[104] Most of those states enforced upper limits on the length of stay a child can be sentenced to in a juvenile court.[105]
Georgia, through its 2013 reform, prohibited residential placement for status offenses and most misdemeanors and limited placement length for youth adjudicated for felonies (up to eighteen months for Class B Designated Felony, up to sixty months for Class A Designated Felony) and allowed for periodic reviews and modifications of the confinement orders.[106]
Kansas’s 2016 juvenile justice reform used a different mechanism to limit the maximum length of time youth could be incarcerated.[107] Kansas’s statute places offenses into several categories, based on which a child’s minimum and maximum sentencing range is calculated.[108] Through the reform, the legislatures established case length limits and shifted some offenses to less severe categories and reduced the maximum lengths for most categories.[109] For instance, for misdemeanors, up to twelve months; for low-risk and moderate-risk offenders adjudicated for a felony, up to fifteen months; and for high-risk offenders adjudicated for a felony, up to eighteen months.[110]
Kentucky’s 2014 reform’s bill S.B. 200 created upper limits on the lengths of commitments that the state Department of Juvenile Justice could impose: for misdemeanors, commitments could not exceed twelve months; and for low level felonies, commitments could not exceed eighteen months.[111] It also limited the length of out-of-home placement and length of supervision based on the seriousness of the offense and risk of reoffending.[112] The new law requires that the Department of Juvenile Justice (DJJ) develops case plans using evidence-based tools that evaluate each youth’s risk level and the seriousness of the offense.[113] It also places restrictions on the duration for which youth can be placed in out-of-home facilities by DJJ, as well as the overall duration for which the youth may be committed.[114]
Utah’s 2017 reform created a presumptive maximum of six months, unless the child re-offends in that time or more time is necessary to complete a specific treatment program.[115] This limit is based on the offense for which a child is convicted—that six-month limit only applies to children convicted of relatively low or moderate severity offenses, while convictions like murder, aggravated sexual assault, aggravated kidnapping, and felonies involving the use of a weapon are not subject to that limit.[116]
South Dakota 2015 Juvenile Justice Reform limited the use of placement to youth adjudicated for the most serious offenses and decreased confinement length to up to three months.[117] Moreover, the new law established specialized teams within the court system to help judges identify appropriate community-based alternatives to commitment for at-risk youth.[118]
West Virginia passed Senate Bill 393 in 2015 which diverted youths who had committed low-level, nonviolent crimes from locked detention facilities to community-based alternatives and limited placement to youth who have been assessed as high risk and prohibited placement in residential facilities for status offenses.[119] The law also drastically reduced the time of confinement by a requirement that a transition back into the community begin within 30 days of admission to a placement facility and end no later than three months after admission.[120]
These states change long-standing juvenile justice practice by limiting indeterminate sentences and imposing determinate limits. They did so to limit the length of sentences and impose offense-specific maximum sentences.
The core principle of the foundation of any legitimate system of state punishment is the concept of penal proportionality.[121] The principle of proportionality-that penalties be proportionate in their severity to the gravity of the actor’s criminal conduct-seems to be a basic requirement of fairness is always discussed in the context of the actor’s blameworthiness.[122] When analyzing the appropriate punishment for adolescents’ crimes, it is necessary then to examine whether and in what ways the immaturity of adolescents is relevant to their blameworthiness.[123] In order to answer this question, it is paramount to highlight the developmental capacities and processes that are relevant to adolescent criminal choices, and the conditions and circumstances that reduce culpability in criminal law.[124]
Adolescence is a prolonged period of stressful development marked by physical, emotional and social changes.[125] None is more important than the increasing use of the peer group as a critical reference for exploration of social roles, opposite-sex relationships, and changing relations with parents and other adults.[126] Psychologists agree that most adults have better reasoning skills than preadolescent children.[127] Many also argue that by mid-adolescence, teens’ capacities for understanding and reasoning in making decision come close to adults.[128] However, adolescent judgment and their actual decisions may be different from those of adults because of adolescents’ psychosocial immaturity.[129] The differences in social and emotional maturity are assumed to reflect differences in competence due to differences in developmental status (independent of experience), differences in experience (independent of developmental status), or some combination of both.[130] Mature judgments are the product of an interaction between cognitive and psychosocial factors, with competent decision-making potentially undermined by deficiencies in either domain.[131] There are many psychosocial factors and scientists researching the domain of adolescent decision-making in legal context tend to group them in three categories overarching dispositions: (1) responsibility (i.e., healthy autonomy, self-reliance, and clarity of identity); (2) temperance (i.e., the ability to limit impulsivity, avoid extremes in decision-making, and to evaluate a situation thoroughly before acting, including seeking the advice of others when appropriate); and (3) perspective (i.e., being able to acknowledge the complexity of a situation and to frame a specific decision within a larger context).[132] Those factors are not fixed abilities and need to be considered in a social context.[133]
Among the psychosocial factors that are most relevant to understanding differences in judgment and decision making, and thus shedding light on the nature of adolescents crime are (1) susceptibility to peer influence, (2) attitudes toward and perception of risk, (3) future orientation, and (4) the capacity for self-management.[134] As indicated in numerous studies, there is evidence suggesting that at least some of the differences between adults and adolescents have neuropsychological and neurobiological underpinnings.[135] In fact, studies of brain development during adolescence, and of differences in patterns of brain activation between adolescences and adults, show that the most important developments during adolescence happen in regions that are implicated in processes of long-term planning, the regulation of emotion, impulse control, and the evaluation of risk and reward.[136] It is not difficult to see how psychosocial immaturity can contribute to adolescent choice to get involved in crime.[137]
Let’s take for instance a scenario adapted from Scott and Grisso.[138] A young person is hanging out with his friends, when one of them suddenly suggests that they rob a person who is passing by to get money to buy drugs. The adolescent does not engage in a deliberative process of decision-making but “chooses” to go along, even if he has mixed feelings about it. He believes that his position in a group will suffer if he declines to participate. That is a negative consequence to which he attaches a lot of weight. A more mature person may think of options to withdraw himself from this situation and avoid negative consequences. Yet, an adolescent lacks experience in similar circumstances. He makes the decision very quickly, and he has difficulty considering consequences. Moreover, the “adventure” of the possibility of obtaining some money from it is appealing. As scientists point out, these immediate and concrete rewards, along with the reward of peer approval, carry more weight than the abstract and, in their minds, the remote possibility of being caught by the police.[139] The long-term costs associated with being adjudicated for a serious crime is the last thing the young person considers.[140]
Other factors that can play a role in adolescents’ crime are disability, trauma, and victimization. Disabilities may magnify the developmental immaturity adolescents’ display in legal contexts.[141] The term disabilities as it is used here refers to mental health disorders, cognitive, developmental and other learning disabilities that can impede a youth’s development, negatively influence decision-making capacities, and contribute substantially to behavioral problems.[142] Disabilities may help explain the use of poor judgment that leads to the commission of an illegal activity.[143] Thus, youth with disabilities can be more likely to be involved in the juvenile justice system or multiple systems.[144] When disability overlaps with other identities associated with higher rates of discipline or justice involvement, such as race and lower socioeconomic status, it can increase the risk of system involvement.[145]
Trauma and victimization, similar to disabilities, also influence normative development.[146] Studies show an association between trauma and antisocial behavior[147] and cumulative trauma being a predicative of delinquency.[148] Longitudinal research also suggests that maltreatment in early childhood is predictive of engagement in the kind of serious delinquency that involves youth in the juvenile justice system.[149]
Even before the seminal case of Roper v. Simmons, the Supreme Court pointed to the immature judgment of youth in prohibiting the death penalty on youth whose offenses occurred before their sixteenth birthday. In Thompson v. Oklahoma, Justice Stevens emphasized that:
[L]ess culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. The basis of this conclusion is too obvious to require extensive explanation. Inexperience, less education and less intelligence make a teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.[150]
Seven years later, the Court held in Roper v. Simmons that it is unconstitutional to impose capital punishment for crimes committed while under the age of eighteen, because it violates the Eighth Amendment’s prohibition against cruel and unusual punishment.[151] The Court’s decision appeared to be based, in part, on the developmental science used to mitigate the culpability of adolescents.[152] Writing for the majority, Justice Kennedy stated:
First, as any parent knows, and as the scientific and sociological studies . . . tend to confirm, “[A] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” . . . The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. . . . The third broad difference is that the character of a juvenile is not as well-formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.[153]
The Court further explained that “juveniles have less control, or less experience with control, over their own environment.”[154] Given these characteristics, the Court went on to observe that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”[155] The Court has continued to recognize the significance of developmental research in three other cases since Roper: Graham v. Florida, 560 U.S. 48 (2010), J.D.B v. North Carolina, 564 U.S. 261 (2011), and Miller v. Alabama, 567 U.S. 460 (2012).
In 2010, the Court held in Graham that juvenile offenders could not be sentenced to life imprisonment without parole for non-homicide offenses.[156] Graham reaffirmed Roper’s holding that juveniles have lessened culpability and are therefore less deserving of the most serious forms of punishment.[157] Graham specifically noted the developments in both behavioral and brain research to support its conclusions: “…developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence.”[158]
In 2011, the Court held in J.D.B. that law enforcement must consider the age of the suspect in their Miranda custody analysis.[159] Writing for the majority, Justice Sotomayor stated: “[S]o long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test.”[160] Justice Sotomayor effectively characterized youth as an unambiguous fact that “generates commonsense conclusions about behavior and perception,”[161] and she noted that such conclusions are “self-evident to anyone who was a child once himself, including any police officer or judge.”[162] Significantly, J.D.B. extended the Court’s application of developmental research beyond the sentencing issues addressed in Graham by noting that youth often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave.[163] In addition, J.D.B. established the presumption of a “reasonable child” standard.[164] In 2012, the Court held in Miller that “mandatory life without parole for those under the age of eighteen at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments’” and that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”[165] Miller reaffirmed the holdings of Graham and Roper, while potentially extending them by focusing on individualized determinations: “a sentence misses too much if it treats every child as an adult,” and “[m]andatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them immaturity, impetuosity, and failure to appreciate risks and consequences.”[166] In all these cases, the Court acknowledged the importance of considering immaturity when applying constitutional protections to adolescents.[167] The Court also demonstrated its receptivity to grounding constitutional principles in well-settled developmental and scientific research.[168]
The justification for incarcerating young people ranges from rehabilitation and punishment to deterrence from future offending.[169] Incarceration is also supposed to support the major task of adolescent development of achieving both social autonomy and social integration.[170] Researchers argue to the contrary. As discussed in Part I.B adolescence is a period of growth in psychosocial maturity where young people show improvements in temperance, perspective, and responsibility.[171] Although younger youth struggle with showing sophistication in these areas, temperance, perspective and responsibility grow steadily across the adolescent years.[172] Variations in social context contribute to the development of these qualities.[173] Researchers have shown that “exposure to positive parent-child relationships, prosocial peers, and nurturing schools and extracurricular context are each linked to greater psychosocial maturity during adolescent years.”[174] Thus, the goals of many juvenile correctional facilities often conflict with the successful development of psychosocial maturity.[175] The example given by the researchers is that incarcerated people need to obey the rules without questioning, even when some of the rules do not make sense or are unfairly enforced.[176] Extensive and rigid rules are the hallmarks of the environment of the secured facilities. Young people who live in such social contexts may lose the ability to cope with the demands of an outside world that lacks rigid structure.[177] Consider, for example, research conducted by Kilgore and Meade on a boot camp-like correctional facility and the effectiveness of their methods to teach boys self-discipline and thus reduce their reoffending. They found out that boys were not prepared to avoid further arrest because they have not acquired self-discipline skills.[178] The extremely structured environment (which removes all decision-making opportunity) seems to be counterproductive to such a goal.[179] As pointed out by Lambie and Randell, there are few opportunities for young people to learn new ways of forming and maintaining appropriate social and sexual relationships in a structured environment.[180] Lambie and Randell suggest that “[i]t is only possible for a young person to reliably ‘grow out’ of deviance if he or she develops alternative, more adaptive coping resources and strategies.”[181] Such adaptive resources are not reliably or effectively taught to youth inmates and the acquisition of such skills is limited by the nature of the social context.[182]
What’s more, if young people in incarcerated settings are discouraged from expressing concerns, this may obstruct their coping efforts, such as seeking social support, which then could interfere with adjustment.[183] Additionally, incarceration separates youth from their parents at a time in development when young people still heavily depend on their families for the acquisition of their coping skills and well-being.[184] At the same time, adolescents perceive their relationships with friends to be more and more important, and incarcerated adolescents are placed in social contexts where their only peer group is composed of other anti-social youth.[185] Moreover, research shows that incarceration inhibits opportunities for successful pro-social development because it restricts autonomy, and therefore it limits the young person’s options for social interaction, prevents integration, and disrupts community contact.[186] The reinforcement of societal norms and expectations is severely limited in carceral settings and the opportunities for youth to model adaptive interpersonal interactions, such as conflict resolution, or practice of interpersonal skills and relationship management are very constrained.[187] Considering the difficulty of practicing pro-social forms of behavior while incarcerated adolescents become more and more detached from adaptive law-abiding society.[188] It is also important to point out that the high rate of psychological disorders among adolescent offenders[189] may render incarcerated adolescents even more vulnerable to the stresses of incarceration.[190] Furthermore, an increase in aggressive behavior among confined youth has also been linked to incarceration.[191] Youth prisons are dangerous places.[192] Several researchers confirmed that exposure to violence and male-modeled antisocial behavior is a risk factor for the development of sexual and non-sexual aggression and delinquency in youth offenders[193] and others showed that contact with other aggressive inmates increases an individual’s aggressive behavior.[194]
The prevalence of abuse within youth prisons causes many youths to experience significant levels of victimization.[195] In 2011, Mendel compiled extensive evidence showing that youth corrections institutions in the U.S. “expose confined youth to unacceptable levels of danger and, maltreatment. It documented widespread physical abuse, excessive use of force by facility staff; an epidemic of sexual abuse; rampant overreliance on isolation and restraints; unchecked youth-on-youth-violence; and frequent violence against staff.”[196] “Among youth in secure corrections facilities or camp programs, 42 percent said they were somewhat or very afraid of being physically attacked, while 45 percent reported that staff ‘use force when they don’t really need to,’ and 30 percent said that staff place youth into solitary confinement or lock them up alone as discipline.”[197] Excessive and unwarranted isolation of confined youth remains widespread in many correctional facilities[198] despite the growing consensus that isolation of youth is harmful and counterproductive.[199]
Incarceration does not only have immediate negative effects on youth, but it also carries long-term consequences. Researchers have documented associations of cumulative incarceration during adolescence and early adulthood with worse physical and mental health later in adulthood.[200] Others also found that youth involved in the justice system face greater risk for early death than community youth.[201] Moreover, mortality rates for these youths increase as youth involvement in the justice system becomes more protracted and severe.[202] What is important to notice, considering that racial and ethnic disparities in incarceration are vast,[203] black male youth face higher risk of early mortality than their white male counterparts. Youths’ incarceration also impedes their success in education and employment.[204] Studies point out that incarceration reduces the likelihood that young people will graduate high school.[205] Furthermore, youth incarceration reduces college enrollment and completion and lowers employment and earnings opportunities in adulthood.[206]
Research indicates that a significant proportion of youth incarcerated in correctional facilities continue to engage in criminal activity as adults.[207] States recidivism data show that youth who are released from secure confinement experience higher rates of recidivism.[208] Mendel, in his updated review of the evidence why youth incarceration fails, points to a comprehensive state-by-state review of recidivism data from 2011 which found that seventy to eighty percent of youth who left residential correctional programs were rearrested within two or three years of release.[209] The review indicates that forty-give to seventy-two percent of those young people were adjudicated (found to be delinquent in juvenile court) or convicted (in adult court) for new offenses within three years of release.[210] Several states have provided more recent data on their recidivism outcomes for youth who have been incarcerated. Mendel compared these data to the one from 2011 and concluded that “three of the states (Delaware, Texas, and Virginia) have seen recidivism worsen in recent years, two states saw no change (Colorado and Illinois), and five states have seen some improvement (Arizona, Florida, Georgia, Louisiana, and Maryland).”[211]
Other studies confirm that compared to probation and other community alternatives, incarceration most often results in higher rates of recidivism.[212] What’s more, it has been shown that longer lengths of confinement do not reduce recidivism.[213]
Myner et al. argued that incarceration did not serve as a deterrent for juvenile offenders. [They] discovered that the longer the length of the initial incarceration, the greater the number of subsequent reconvictions. To explain this finding, they surmised that youths may be learning criminal behavior from other delinquent juveniles, and additionally, that labeling delinquents may perpetuate criminal behavior. Similarly, the Virginia Poverty Law Center reviewed Virginia’s juvenile offender population and asserted that incarcerating youths beyond the point of rehabilitation may make youth more dangerous than they were when initially incarcerated and may impede successful community reintegration following release.[214]
Winokur et al. examined data from the “Florida Department of Juvenile Justice of 16,779 juveniles released from commitment programs to the community or aftercare between July 1, 1998, and June 30, 2000, were examined in this study.”[215] Their study showed that “the shortest lengths of stay within this security level resulted in decreased chances for recidivism. Intermediate periods of confinement and very long stays were associated with high probability of recidivism. In comparison, the probability of future adjudication or conviction for high-risk commitments with seventeen to twenty months of treatment was similar to the probability of those receiving one to four months of services.”[216]
Lovins looked at 5,603 youth released from Ohio Department of Youth Services (DYS) between 2003 and 2006 to test his hypothesis that length of stay of youth in secure facilities is associated with future recidivism.[217] The results of his study were conclusive that “longer stays in DYS [were] positively correlated with future reincarceration.”[218] Furthermore, the results suggested “that additional time at DYS result[ed] in higher recidivism rates.”[219]
As stated by the National Research Council, “confinement of juveniles beyond the minimum amount needed to deliver intensive services effectively is not only wasteful economically but also potentially harmful, and it may impede prosocial development.”[220] In fact, researchers have confirmed that “there is little benefit from increased deterrence connected with either placement out of the community or longer stays in institution.”[221] In a rigorous study of how serious youth offenders respond to placement and longer stays out of community, Loughran et al. confirmed that the effect of incarceration on future rearrest raises the likelihood of recidivism.[222] The “Pathways to Desistance” study, a longitudinal examination of 1,354 children sentenced in two large metropolitan areas, investigated the influence of varying lengths of incarceration on the future recidivism rates of serious juvenile offenders.[223] Notably, after a child had been in institutional care for three months, the researchers observed “no marginal benefit” to public safety in keeping them there for extended periods.[224] This research presupposes a rehabilitative objective; limiting the duration of incarceration is advocated because it ceases to serve a purpose in aiding children in avoiding future offenses. Conversely, a more punitive approach would justify prolonged incarceration based on retributive principles.
With longer sentences, adolescents become more deeply immersed in the criminal justice system and move further from prosocial involvement in society.[225] That limits the opportunity for the individual to “age out” of their delinquent behavior.[226] The age-crime curve indicates that the prevalence of delinquent behavior is at its highest by later adolescence (ages seventeen-eighteen) and then it decreases.[227] Elliott conducted research on serious violent offending among adolescents in 1994 during the era when adolescents’ crime rates were at their peak.[228] His data supported the maturational reform hypothesis that the transition into responsible adult roles leads to desistance from crime and violent behavior.[229] In 2004 Stouthamer-Loeber et al. showed that about one-third of their sample of adolescents of the Pittsburgh Youth Study engaged in some form of serious delinquent behavior.[230] Many of them naturally grew out of this behavior as part of their maturation process.[231] In 2010, Mulvey et al. extended prior research by examining patterns of anti-social behavior in serious offenders after court involvement in order to obtain a better understanding of how adolescents reduce their offending behavior over time.[232] Two years after being adjudicated for a serious offense, most of the youth (73.8%) reduced their offending to low or zero involvement in offending behavior.[233] For those youth who self-reported the lowest level of offending, placement in an institution raised their level of self-reported offending after release from institutional placement.[234] The authors concluded that most serious offenders are not necessarily “bad actors” destined for adult criminal activity.[235] Most serious offenders demonstrate low or zero involvement in criminal activity years after court involvement.[236] Moreover, for youth who have been adjudicated for a serious offense, but demonstrate overall low levels of offending, incarceration or placement in residential treatment facilities has the potential to increase recidivism.[237] As Lambie and Randell noticed, “Incarceration may, therefore, interfere with the reestablishment of a prosocial lifestyle and limit the likelihood of positive outcomes.”[238]
In South Carolina, the Children’s Code governs juvenile procedure, including intake, pre-trial detention, probation, and commitment decisions. The Children’s Code’s purpose clause says that “it shall be the policy of this State to concentrate on the prevention of children’s problems as the most important strategy which can be planned and implemented on behalf of children and their families.”[239] “For children in need of services, care, and guidance the State shall secure those services as are needed to serve the emotional, mental, and physical welfare of children and the best interests of the community, preferably in their homes or the least restrictive environment possible.”[240] But the Code does not discuss juvenile justice directly.[241]
South Carolina is an example of a state where legislators have not limited the judges’ discretion in imposing a lengthy sentence and where neither the judge nor the agency has the power to release youth from custody after an indeterminate order was issued.[242]
In South Carolina, youth adjudicated delinquent may be sentenced to a determinate or an indeterminate commitment[243] and sent to a placement or a secure long-term incarceration at the SCDJJ.[244] The mission of SCDJJ is to “impact and transform young lives, strengthen families, and support safer communities through targeted prevention and rehabilitation.”[245] The Agency’s vision is for youth to “discover their strengths and abilities and become productive and successful citizens contributing to a safer South Carolina.”[246]
The determinate commitment is for up to ninety days.[247] If a youth receives an indeterminate commitment, they will be held for an indefinite period of time, up to the age of twenty-two, or until sooner released by the releasing entity.[248] There is no opportunity for a judicial review of juvenile cases in South Carolina.[249] Upon an indeterminate commitment, a youth is given a time range or “guideline,” determined by the Board (for all felonies, select misdemeanors, probation violation for felony offenses, and parole revocation for the cases in which the Board granted parole) or SCDJJ’s Internal Release Authority (for most misdemeanors, all status offenses, probation violation for misdemeanor offenses, contempt of court commitments for status offenses, and parole revocation for youth for whom SCDJJ Release Authority granted parole).[250] Pursuant to S.C. Code § 63-19-610(A), the Board is composed of seven members appointed by the Governor with the advice and consent of the Senate. The South Carolina Board of Juvenile Parole: Policy and Procedure (Policy) says that the “Board members are encouraged to attend training related to Juvenile Justice, Parole and Aftercare.”[251] The Policy also imposes the duty on the Director to “prepare and maintain on an annual basis a training manual outlining orientation and annual training.”[252] The Board members “shall receive a minimum of eight hours of relevant training and education annually.”[253] The Board members have to attend quarterly meetings and an annual meeting in July, where the Chairperson is to “encourage the Board to continue to pursue goals to ensure the efficient operation of the parole process, to stay abreast of the changing community philosophy regarding parole and the juvenile justice system and to review Board policy and procedure.”[254] The Board members partake in a Budget Committee, Legislative Committee, and Policy and Policy and Procedures/Guideline Committee.[255] The Guideline Committee is responsible for “f) periodic reviews of guidelines; g) approving assignment of criminal offenses to appropriate categories and; h) making category changes.”[256] The Board should also “permit, encourage, and utilize internal research as well as research conducted by outside professionals.”[257]
Guidelines are calculated based on the severity of the youth’s offenses and the history of his or her previous offenses.[258] Guidelines can run anywhere from twelve to eighteen months up for minor offenses to thirty-six to fifty-four months for more serious offenses, such as armed robbery, arson, kidnapping, burglary 1st degree, or murder.[259] The Board ultimately has jurisdiction to keep youth detained until they reach twenty-two years of age.[260] The Board holds monthly parole hearings and inspects the records of each committed youth at least quarterly if a youth is not identified as a violent offender by statute, but the appearances in front of the Board begin only when “the board determines that an appropriate period of time has elapsed since the child’s commitment.”[261] In a youth is considered a violent offender, the “board may waive the quarterly review . . . until the child reaches the minimum parole guidelines.”[262] When a youth reaches their minimum guidelines, they can be present at their parole hearings.[263] Youth is allowed to be represented by a legal counsel at the parole hearings,[264] but their remarks are limited to fifteen minutes and five minutes for taking testimony from individual witnesses.[265] After reaching the minimum guidelines, youth’s case is reviewed by the Board on quarterly basis, unless the youth is considered a violent offender (as defined in S.C. Code §16-1-60), when the hearings take place once every six months after reaching the minimum guidelines.[266]
The Board receives reports from SCDJJ treatment provider, an aftercare provider, and a school guidance counselor regarding every youth being reviewed.[267] All reports, other than the one from the educational setting, should include recommendations for the youth’s release.[268] “The granting or denial of parole . . . rests solely in the discretion of the Board.[269] The youth can appeal of denial of parole within fourteen days following the hearing.[270] The appeal is heard by the Board.[271]
The Board takes several factors into consideration when making their decision about releasing youth: “institutional behavior, community acceptance, history of adjudications, progress towards treatment goals, and appropriate placement.”[272] “There is a presumption that a juvenile will not be released before reaching the minimum guideline date[], but] [f]actors may overcome this presumption [if the youth shows] superior progress . . . and outstanding institutional behavior.”[273] “There is [also] a presumption a juvenile will be released upon reaching the maximum guideline date.”[274] That presumption can be overcome is the youth displays, among others, “lack of progress . . . , lack of remorse, . . . or release of the juvenile would depreciate the seriousness of the delinquent act[s].”[275]
“The status of parole has been granted as a privilege from the Board to the juvenile to serve a portion of his/her commitment outside of the correctional facility.”[276] “The paroled juvenile at all times remains under the legal authority of the Board while on parole and may be returned to custody upon any violation of the law or upon any violation of his/her conditional release agreement.”[277] “ A juvenile’s parole may be revoked for violations of standard or special conditions established by the Board.”[278] Youth has a right to a preliminary hearing within ten days after their incarceration for parole revocation.[279] “The purpose of a preliminary hearing is . . . to determine whether probable cause exists to believe that a juvenile has committed an act of inappropriate behavior prior to actual release or has violated conditions that warrant the revocation/rescission of parole..[280] “[T]here is no right to counsel at a preliminary hearing, [yet] counsel will be allowed . . . if . . . retained by . . . the juvenile.[281]
South Carolina overwhelmingly relies on confinement of youth. Every year at least fifteen percent of the cases processed in family court end up on a commitment status (that is about 400–500 youth per year).[282] The most frequent offenses associated with the commitment to SCDJJ are probation violations (29%), gun charges (10%), and armed robbery (3%).[283] Committed youths are incarcerated at a youth prison called the Broad River Road Complex (BRRC).[284] Unfortunately, SCDJJ has long failed to meet its fundamental obligation to keep those whom it detains at BRRC safe.
In 1995, a group of law firms and civil rights organizations representing children incarcerated in various SCDJJ facilities successfully sued the Agency.[285] They testified that the conditions at SCDJJ deprived youth of their statutory rights and violated their constitutional rights to due process, equal protection, and freedom from cruel and unusual punishment.[286] The court agreed that the children’s rights were violated and issued an injunction requiring SCDJJ to submit a remedial plan and implement policy changes to meet minimally acceptable standards at its facilities.[287] Despite the consent decree stemming from this lawsuit, violence in SCDJJ facilities continued.
In 2017, a South Carolina Legislative Audit Council audited SCDJJ and reported that the unsafe and unconstitutional conditions successfully challenged by the Alexander S. plaintiffs had only worsened since the decree’s expiration.[288] Soon after, in February 2020, after a lengthy investigation, the U.S. Department of Justice (DOJ) concluded that “there is reasonable cause to believe . . . that . . . conditions at the BRRC . . . violate the Fourteenth Amendment,” because “South Carolina Department of Juvenile Justice . . . fails to keep young people reasonably safe from excessive force by staff at the BRRC,” “harms young people” by using “prolonged and punitive isolation,” and inadequately trains and prepares BRRC staff to keep youth safe.[289]
Since 2020, the abuses at BRRC have grown only more flagrant—and the danger to the youth there more acute.[290] Per the 2021 Legislative Audit Council, SCDJJ’s secure facilities failed to meet federal and internal standards for supervision of youth.[291] The DOJ’s reports from February 5, 2020, and April 14, 2022, concluded that SCDJJ: “(i) failed to reasonably protect children from youth-on-youth violence; and (ii) seriously harms children by using prolonged isolation for punitive purposes. . . . [And] failed to keep the children in its custody reasonably safe from excessive force by staff.”[292]
Despite SCDJJ entering into an Agreement with DOJ in April 2022, the conditions of confinement at BRRC and other SCDJJ facilities have not improved.[293] Per statistics provided by the South Carolina Department of Children’s Advocacy, the number of critical incidents at SCDJJ in 2022/2023 was 503 (338 of them included physical assault, 10 were sexual assault, 51 of suicidal ideation).[294] In FY 2021/2022, the number of critical incidents at SCDJJ was 299 (157 for physical assault, 14 for sexual assault, 39 for suicidal ideation).[295] The Compliance Monitoring Report revealed several continuing problems: insufficient staffing to ensure a safe environment;[296] structured programming was not offered in a manner that would engage youth in rehabilitative activities;[297] staff are not following SCDJJ’s behavior management protocols;[298] isolation continues to be used;[299] the facility is being described as lacking order and being chaotic most times, and youth and staff feel uneasy and unsafe;[300]and “attempts to offer structured rehabilitative programming after school [is] viewed by those delivering it and those receiving it as a failure.”[301] The April 2023 DOJ Compliance Monitoring Report notes SCDJJ’s compliance with recommendations regarding staffing study, surveillance tools timeline, and approach to behavior management but SCDJJ remains non-compliant in the areas of rehabilitative programming and general provisions such as staffing, surveillance, structured programming, a positive behavior management system, and limiting use of force and restraints, which are areas that affect youth having a safe living condition.[302]
As pointed out by Gupta-Kagan et al., “[r]ecidivism is an essential measure for any juvenile justice system. Low recidivism rates reflect successful efforts to rehabilitate young offenders and prevent future crime. High recidivism rates reflect the opposite.”[303]
SCDJJ calculates its recidivism rates without taking into account data on youth who are convicted in the adult system. The recidivism definition encompasses “[y]outh who are adjudicated for a new offense within one year of completing Arbitration, Probation, or Commitment. This rate includes only those youths who were subsequently adjudicated (convicted) in the juvenile justice system.”[304] The data available on SCDJJ website shows the 2019–2020 recidivism rate for committed children at 19.2%, which is higher by about 5% than for children on probation (14.1%) and significantly higher than for children in arbitration programs (2.8%).[305] SCDJJ’s calculation of recidivism does not depict the full picture. Other studies have indicated recidivism as high as 80.2%,[306] or 76%.[307] Bradberry, having examined the adult criminal histories of a group of juveniles who were released from SCDJJ, concluded that “those who received indeterminate sentences as juveniles subsequently were incarcerated as adults at over twice the rate as those who had received determinate sentences as juveniles (41.82% and 19.41%, respectively).”[308]
The Colorado Juvenile Parole Board was created in 1959.[309] It is authorized to grant, deny, modify, suspend, or revoke, and specify conditions of parole for all youth adjudicated delinquents and committed to Colorado Department of Human Services for an indeterminate period of time not to exceed their twenty-first birthday.[310] The youth’s parole time is established pursuant to Colorado Revised Statutes §§ 19-2.5-1117(1)(b), 19-2.5-1518(6), 19-2.5-1203(5)(a). The standard mandatory parole period is six months.[311] However, in some instances, the law authorizes the Board to extend the youth’s parole for up to a maximum of twenty-one months.[312] The parole decisions must be made in accordance with the best interest of the youth and the public, pursuant to Colo. Rev. Stat. 19-2.5-1201.
The Board “may also discharge a juvenile from parole before completion of the mandatory six-month parole period when the board finds that the juvenile meets” certain conditions, such as graduation from a high school; full payment of restitution; youth’s readiness to be discharged based on an objective risk assessment; and presentation of a re-entry plan.[313]
Youth “may be represented by counsel in any hearing before the board or a hearing panel to grant, modify, or revoke parole.”[314] “An administrative law judge shall assist any hearing panel of the juvenile parole board that is considering the suspension, modification, or revocation of a juvenile’s parole.”[315] “An administrative law judge shall, upon the request of the juvenile parole board, conduct a preliminary hearing in a case in which a parole violation has been alleged to determine whether there is probable cause to believe that the parolee has violated a condition of parole.”[316] “If a juvenile’s parole is revoked pursuant to section 19-2.5-1206, the juvenile shall serve all or a portion of the remainder of the sentence to commitment, and the period of reparole or extended period of reparole imposed pursuant to subsection (5)(a) of this section must be reduced by any time served on parole prior to the revocation.”[317]
Utah Youth Parole Authority (hereinafter, YPA) was created by legislature in 1986.[318] In 2016, PEW Charitable Trust conducted an assessment of Utah’s juvenile justice system and found that, among others, most youth who entered the system were referred for low-level offenses and were at low risk to reoffend, and youth were stalled in the system for long periods of time due to court-ordered conditions.[319] A year later, the Utah legislature enacted extensive reforms in the juvenile justice system that put in motion a shift aimed at protecting public safety, controlling costs, and avoiding pushing young people deeper into the juvenile justice system.[320] The reforms continued to be expanded into 2020s, when the legislature passed bills changing which cases are referred to juvenile court, who is eligible for detention, and the length of jurisdiction of the family court over a young person.[321]
The philosophy of Utah’s juvenile justice system is based on the “Balanced and Restorative Justice Model,” which consists of three goals: Community Protection, Youth Accountability, and Competency Development.[322] Utah Juvenile Court adopted a set of evidence-based practices, the “Principles of Effective Intervention,” which “include four basic principles: risk, need, responsivity, and program integrity.”[323] These evidence-based principles apply both at the case planning stage and at disposition. “Any disposition entered should be compatible with the youth’s case plan, should address identified criminogenic risk and needs, as well as take into consideration the responsivity issues of the youth.”[324]
The 2020 Juvenile Disposition Guidelines created by Utah Sentencing Commission pursuant to Utah Code § 63M-7-404, serve as a guide post for all system involved participants, and the recommending authority is mandated by statute to consider them.[325] The Disposition Guidelines are rooted in evidence-based research and include consideration of adolescent development and trauma.[326] They stress judicial discretion and individualized treatment of each youth and list numerous factors to be considered by the court for each child.[327] The Juvenile Court in Utah has several dispositional options, starting from rewarding youth with appropriate incentives,[328] and ending with secure placement.[329] When youth is sentenced to a secure care, the sentence is for an indeterminate period of time, not to exceed their twenty-first birthday.[330] Youth Parole Authority (YPA) establishes parole guidelines for each youth committed indeterminately to secure facilities.[331] That takes place within 45 days of youth’s commitment at the initial hearing[332] and is “based on the Suggested Length of Stay Matrix (Appendix 08-04A), which takes into account the minor’s offense severity.”[333] A suggested length of stay may be adjusted by the YPA based upon the mitigating and aggravating circumstances of the committing offense. Treatment progress and participation may affect the actual length of stay.[334] As stated in Part I.A.2., the presumptive term of secure care of youth offenders is from three to six months.[335] “If a juvenile offender is ordered to secure care for a misdemeanor offense, the authority may immediately release the juvenile offender on parole if there is a treatment program available for the juvenile offender in a community-based setting.”[336] Youth committed on a misdemeanor offense cannot be in secure care longer than a term of incarceration for an adult for the same offense.[337] The length of stay for youth committed on aggravated felonies can be as long as eighteen to twenty-four months.[338] The YPA can depart from the Matrix if there are compelling and substantial reasons, or mitigating circumstance.[339] Additionally, “to encourage and enhance program participation, those minors who make substantial progress in their treatment plans will be given consideration for release at the lower end of their suggested length of stay.”[340] After the initial hearing, YPA schedules Progress Review Hearings to review the minor’s progress in secure care and to establish a date for a Parole Review Hearing. Those hearings take place every three months.[341] A minor has a right to attend all hearings, along with the minor’s family member and clergy or other personal advisors for the minor.[342] “The minor may have counsel present at all hearings.”[343]
For almost two decades, California has implemented a range of legislative- and voter-supported initiatives aimed at decreasing the number of youths entering the state’s juvenile and adult systems.[344] This involved diminishing dependence on incarceration and broadening the availability of community-based alternatives for youth.[345] To further this goal, they committed to rehabilitating their youth and to following evidence-based practices.[346] As part of the reorganization of their correctional system, Senate Bill 737 (2005) required that “programs should be evidence-based, result-oriented and subject to periodic reviews.”[347] Yet, after numerous attempts to improve the system, “[i]n 2020, the Governor and the Legislature reached agreement on a framework to close the Division of Juvenile Justice (DJJ) and reallocate funding to counties to allow them to meet the needs of youth who would previously have been committed to the DJJ.”[348] As a consequence, the Board of Juvenile Hearings ceased its functioning as well.[349] At the same time, they created a new dispositional option for youth fourteen years old and older for whom a less restrictive alternative disposition is unsuitable, secure youth treatment facility (SYTF).[350] If a court commits a youth to an SYTF, it must set a baseline term of commitment that must “represent the time in custody necessary to meet the developmental and treatment needs of the ward and to prepare the ward for discharge to a period of probation supervision in the community.”[351] The legislature mandated the Judicial Council to develop and adopt a matrix of offense-based classification.[352] Senate Bill 92 stated that in developing the matrix, the council would be advised by a working group of stakeholders to include “representatives from prosecution, defense, probation, behavioral health, youth service providers, youth formerly incarcerated in the Division of Juvenile Justice, and youth advocacy and other stakeholders and organizations having relevant expertise or information on dispositions and sentencing of youth in the juvenile justice system.”[353] The statute specified that the council take into account the following in its development process: “youth sentencing and length-of-stay guidelines or practices adopted by other states or recommended by organizations, academic institutions, or individuals having expertise or having conducted relevant research on dispositions and sentencing of youth in the juvenile justice system.”[354] The working group focused on three primary objectives for the matrix: Positive Youth Development, Public and Community Safety, and Flexible and Fair Terms of Commitment.[355] The working group aimed at making the matrix centered on evidence-based research on adolescent development, trauma, and recidivism. They also aimed at creating a matrix that would help to “ensure that the term of commitment is no longer than necessary to protect the public, by working to prevent the likelihood that the youth will reoffend but is of sufficient length to assure the victim and the community that the harm committed can be redressed by the juvenile justice system in a developmentally appropriate manner.”[356] They agreed that “[a] baseline term [for commitment] should be based on the needs of the individual being committed, and not simply the seriousness of the offense.”[357] The factors the court may take into consideration include: circumstances and gravity of the offense, youth’s history in the juvenile justice system, confinement time necessary to rehabilitate the youth, and youth’s developmental history.[358] California Welfare and Institutions Code 875 also provides that the court must review the progress of each youth committed to an SYTF at least every six months, and that at each hearing the court may modify the youth’s baseline term by up to six months.[359] The statute states that the matrix must provide for positive incentives for youth to engage productively with the individual rehabilitation plan.[360] Moreover, California Welfare and Institutions Code 779.5 creates a mechanism for setting aside the commitment sentence if the party can show that “commitment facility has failed, or is unable to, provide the ward with treatment, programming, and education that are consistent with the individual rehabilitation plan.”[361]
A well-educated paroling authority that uses current research to guide the way it operates and makes decisions can help make our communities safer and stop needless expenditures of precious public resources. The formation of such an authority requires that Governors appoint parole board members with the competencies for effecting necessary changes—individuals who can and will collaborate with system and community partners, who understand and will use current research, and who will build infrastructure and capacity within parole organizations for delivering services effectively and efficiently.
—Nancy M. Campbell.[362]
Paroling authorities play a critical role in criminal justice systems nationwide.[363] Recognizing that vital role, the National Institute of Corrections (NIC) developed a series of useful resources for parole board chairs, members and their executive staff. In 2008, they published the Comprehensive Framework for Paroling Authorities in an Era of Evidence-Based Practice,[364] and in the years to follow, they commissioned the development of a series of five papers entitled Parole Essentials: Practical Guides for Parole Leaders, which provides concrete guidance on implementing stated principles, assisting the parole boards in honing their skills, defining their roles and responsibilities, and supporting effective practice.[365] The series emphasizes that boards have to engage in strategic planning, team building, policy development, and effective internal communication as well as honing key skills in administration, human resources, and budgeting.[366] The need for the use of objective assessment tools and the importance of clear decisionmaking guidelines regarding release and violation responses is a theme across all five papers.[367] “Board members and executives must be aware of important evidence-based findings concerning offender assessment, the use of objective risk tools, effective programming that addresses crime-related factors, the imposition of conditions, and the effect of staff-offender interactions on behavior.”[368] It is critical that board members “discern lessons from evidence-based practices and apply this information to the operation of your parole board or agency.”[369] In order “to be effective in the achievement of its goals and to be efficient in the use of taxpayers’ dollars,” “public policy and practice must be based on the best available scientific evidence.”[370]
Being evidence-based entails adopting practices informed by robust empirical research at both individual and organizational levels. This approach leads to outcomes that are not only more efficient and effective but also optimize the use of public resources, ultimately contributing to a reduction in future crime.[371] “To be evidence-based is to build policies and practices on the foundation of empirical knowledge that is objective, reliable, and valid. To apply evidence to decisionmaking is to first seek to understand what research has demonstrated to be true about a particular issue, and then to use that information to inform decisionmaking.”[372] “Paroling authorities make fundamentally important decisions every day that encompass far more than the traditionally narrow view of ‘in’ and ‘out’ release decisions.”[373] They “determine when to hear cases, what activities offenders must accomplish prior to release, the terms and conditions of their release, and how to respond to violation behavior.”[374] As stated by the NIC, research findings “can and should serve as the ‘intellectual core’ of those decisions.”[375]
NIC provides paroling authorities with strategies for supporting research-based parole practices, such as instituting a regular review of new research; understanding the gradations of research; cautiously applying research findings across disciplines; and contributing to the growing body of knowledge on what works (and what doesn’t) in improving offender outcomes.[376] It also delineates twelve evidence-based parole policies and practices based on the rationale that “research demonstrates that all categories of offenders (high, moderate, and low risk) are more successful when interventions are tailored to address their risk level,”[377] and that “community-based programming is not only less expensive but . . . can also be more effective than in-prison programming.”[378] NIC recommends that parole authorities “collect, exchange, and analyze local data,” “stay current on emerging research,” “depend on that research,” and “build collaborative partnerships with other system actors” in order to obtain coordinated policies and practices.[379] They stress that paroling authorities should “reconsider decisionmaking methods and practices and determine the extent to which these align with research.”[380]
Two sections of the Restatement of Law—Children and the Law are most pertinent to the subject of the length of time of youth incarceration: § 14.10 (Individualized Disposition No More Restrictive than Necessary) and § 14.11 (Limitation of Criminal Penalties or Sentences in Delinquency Proceedings).[382] Section 14.10 stresses that judges need to “craft developmentally informed dispositions most responsive to the needs and circumstances of the particular youth, considering the youth’s history of delinquency, home environment, and support systems, as well as the nature and severity of the offense.”[383] Moreover, it states that “[h]owever serious the offense, the disposition must be grounded in an articulable effort to reduce reoffending, support healthy and safe development, or inculcate accountability for wrongdoing.”[384] The primary objective of delinquency dispositions involves holding young people accountable for their wrongdoing as they progress in maturity. It is crucial for youth to grasp the significance of taking responsibility for their actions and making amends for mistakes.[385] When dealing with youth who persistently engage in offenses and are resistant to prior interventions, confinement might become necessary. But “confinement is a last resort, and any prolonged confinement must be subject to intensive periodic review.”[386] Furthermore, “the youth is constitutionally entitled to periodic review of his or her responsiveness to the services and interventions being provided, and to ongoing reevaluation of his or her risks and needs.”[387] Extending secure confinement based purely on the seriousness of the offense, without meaningful periodic risk reassessment, contradicts the principles of the “least restrictive alternative” and the requirement of individualization.[388] The authors of § 14.10 point out that risk-assessment instruments can be helpful in identifying factors that might reduce the risk of offending on an individual basis and estimate the likelihood that continued delinquent behaviors will occur.[389] They underscore that failure to review a confined youth’s progress, update the risk assessment, and consider the suitability of community alternatives could amount to an abuse of discretion.[390]
Section 14.11 looks at the youth’s right to a jury trial and what period of time of their placement disposition triggers that right.[391] In that context, the authors agree that a twelve-month period of confinement “is necessary to communicate the importance of accountability for serious offending and to deter it, especially for older adolescents (age 16 or above).”[392] However, they say that:
several developmental considerations support a six-month marker for younger children. These include the truncated time perspective of young adolescents, the potentially significant developmental effects of removal from the home (especially a remote placement) for an extended period, and the expert consensus that a period of six months ordinarily provides an adequate opportunity to deliver clinical services to a youth who needs to be in a residential facility and to educate and counsel a youth who fails to accept responsibility for wrongdoing.[393]
As pointed out by the commentators of the § 14.11 of the Restatement, “[a] juvenile-court disposition imposing a lengthy minimum period of confinement based solely on the seriousness of the offense or prior offending is incompatible with the underlying premise of juvenile justice because it Additionally, both SCDJJ and the Board need to collect data on recidivism and assure that their policies are reviewed and modified based on the statistics they gather and the meaning behind them.”[394]
Section 14.11(a) states that “[a] finding of delinquency is not a sufficient legal predicate for a criminal penalty or sentence unless: (1) the legislature has specifically required or authorized the penalty or sentence, and (2) the delinquency finding is made at a proceeding at which the youth is entitled to a jury trial and other safeguards applicable to criminal proceedings.”[395] Continuous assessment of the young individual’s progress is a hallmark of juvenile justice intervention.[396]
Paroling authorities are uniquely positioned to impact individual lives and contribute to public safety. As stated by researcher at NIC, “every interaction within the criminal justice system offers an opportunity to contribute to harm reduction.[397] The conditions of confinement at SCDJJ have not improved since 1995 when Judge Anderson ordered SCDJJ to devise a plan to remedy constitutional violations found at its facilities.[398] As stated by Judge Anderson, SCDJJ “controls neither its front door nor its back door: Admission to the institutions is controlled by the family courts; release is controlled by the Juvenile Parole Board.”[399] In South Carolina, the Board has full discretion to both design the release guidelines and to implement them. The Board created the Guidelines in 1990s when the whole country was looking at adolescents through the lenses of the super-predator myth.[400] The Guidelines are a clear reflection of the “tough on crime” mentality and do not take into consideration evidence-based research that has been available for decades.[401] Young people in South Carolina linger at SCDJJ facilities for years before they have a meaningful opportunity for release.[402] They cannot go in front of a judge for their sentence to be revised and, if their guidelines are within two to four or three to five years, they do not appear in front of the Board for one or two years.[403] This dire prospect for early release creates feelings of hopelessness and provides no incentives for the young people to comply with treatment requirements.[404]
The brief analysis of the parole boards in Colorado and Utah points to important lessons for the South Carolina Board of Juvenile Parole. Originally, both of these boards were created prior to 1990s and both of them have since undergone reforms and revisions of their policies in the 2020s. The reforms were rooted in evidence-based research and include consideration of adolescent development and trauma. Their guidelines are significantly shorter and if the guidelines are more than six months, youth have an opportunity to be in front of a release authority on regular basis, starting three months after the commitment.[405]
California got away with their parole board but the process they used to create the new sentencing matrix can be a guiding post for South Carolina. They shifted from being an offense-based state (focusing on the seriousness of the crime) to an offender-based state (making sure that the individual’s needs are considered).[406] They incorporated research on adolescent development, harms of incarceration and the risk of recidivism in order to create a matrix that assures not only the protection of the public but also the harm reduction to the individual who committed an offense.[407]
NIC stresses that “criminal justice professionals must have the knowledge and skills that will enable them to maximize their influence.”[408] Being evidence-based means to again and again ask questions: “What do we know?” and “What information is available to guide our decision-making.”[409] The Board members must be aware of important evidence-based findings concerning youth and they must revise their policies and procedures periodically to assure their practice is based on the best available scientific evidence. They should consider shortening their guidelines for many offenses and creating a meaningful review process that assures youth access to the Board within at least six months of incarceration.
Pending SB 278 also creates a judicial review mechanism for committed youth.[410] The bill does not contemplate a dissolution of the Board, yet that option might be considered if the Board proves to be unwavering in its position on reform. Additionally, both SCDJJ and the Board need to collect data on recidivism and ensure that their policies are reviewed and modified based on the statistics they gather and the meaning behind them.
Evidence-based research provides the foundation for discerning the best practices and guides decision makers towards effective and least harmful ways to conduct. South Carolina has a tremendous opportunity to reform its antiquated juvenile justice system and engage in evidence-based practice. Passing of the Juvenile Justice Reform Act of 2020 would be a step towards a shift aimed at avoiding pushing children deeper into the criminal justice system while protecting public safety and controlling costs. Short of its passing, the South Carolina Board of Juvenile Parole has an incredible opportunity to revise its practices and be at the forefront of the states following science. If the primary goal of the juvenile justice system is to rehabilitate youths, any policies that extend a youths’ stay should be examined closely. Given the findings in this paper, policies should consider research on adolescent offending and harms of incarceration. If the primary goal of a policy is to protect the community, the authors of the policy need to examine research on the effect of length of incarceration, and studies on desistance.
The subject of youth release is broad and complex. This paper sheds light on a fraction of its complexity and thus calls for further exploration of the issue. The juvenile parole boards are few and apart among other release mechanism in the United States. Further research should explore the efficacy of judicial and agency release mechanisms.
A number of states’ departments of corrections have adopted administrative security classification and release guidelines that use offense criteria to specify proportional or mandatory minimum terms of institutional confinement. . . The Arizona legislature required its department of corrections to adopt length of confinement guidelines; the agency created five categories based on the seriousness of the commitment offense and specified mandatory minimum terms that range in length from three to eighteen months to govern juvenile release decisions. Minnesota’s department of corrections adopted determinate length of stay guidelines based on the present offense and other risk factors, such as the prior record and probation or parole status. Barry C. Feld, Violent Youth and Public Policy: A Case Study of Juvenile Justice Law Reform, 79 Minn. L. Rev. 965 (1995). ↑
National and international experts agree that solitary confinement of children should be banned. A number of international instruments and human rights organizations have declared that the solitary confinement of children violates human rights laws and standards prohibiting cruel, inhuman or degrading treatment and called for the practice to be banned, including the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the Committee on the Rights of the Child, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the Beijing Rules), and the Inter-American Commission on Human Rights. Based on the harmful physical and psychological effects of solitary confinement and the particular vulnerability of children, the Office of the U.N. Special Rapporteur on Torture has repeatedly called for the abolition of solitary confinement of persons under age 18. Human Rights Watch & ACLU, Growing Up Locked Down 20 n.46. As stated by Professor Simkins and her colleagues, “Behind problematic youth behavior is a combination of immature thinking and identity, learning disabilities, and trauma. And, as a result of isolation, the very behaviors that are the cause for placement in isolation, are exacerbated. Sandra Simkins et al., The Harmful Use of Isolation in Juvenile Facilities: The Need for Post-Disposition Representation, 38 Wash. U. J.L. & Pol’y, 241, 261 (2012). ↑
According to Mendel, “A long-term study of youths in Seattle, published in 2015, found that those incarcerated during adolescence were nearly four times more likely to be incarcerated in adulthood than comparable peers who were not incarcerated (controlling for delinquent conduct, gang membership, peer delinquency, and other relevant risk factors). Id.
Mendel also cites:
In Ohio, a 2014 evaluation of community alternatives to incarceration funded through the RECLAIM Ohio program showed that youths who were assessed as having a low or moderate risk for rearrest who remained in the community were one-tenth as likely to be incarcerated for a future offense as comparable youths placed in juvenile correctional facilities. Among youth assessed as high-risk, those served by community programs were one-third as likely to be incarcerated for subsequent offenses. Youths assessed as low or moderate risk of rearrest who remained in the community were less than half as likely as those placed in juvenile facilities to be adjudicated for a subsequent felony.
Id. Mendel also notes, “An exhaustive 2015 study in Texas showed that adjudicated youth who were allowed to remain in the community on probation were 30% less likely to be arrested for a subsequent offense than comparable youth sent to state corrections facilities.” Id. at 13. ↑
A labeling theory says that those who are sentenced to prison for longer periods of time will recidivate at a higher rate than those who are given a lesser sentence. Tannenbaum argued that as a young person receives punishment from the juvenile justice system (they are labeled delinquent), they begin to perceive themselves as deviant. As they adopt this new image, they will tend to gravitate to those people who are accepting of this new image, which then is reinforced by engaging in delinquent behavior. See Frank Tannenbaum, Crime and the Community 456 (1938). See also Caroline Warren, The Negative Effect of Criminal Labeling on Community Reentry in the Harrisonburg Area (2022) (Honors Project, Bridgewater College), https://digitalcommons.bridgewater.edu/cgi/viewcontent.cgi?article=1342&context=honors_projects [https://perma.cc/J3VY-NLHX]. ↑
SCDJJ has been sued by children in their individual capacity again and again (per SCDJJ’s response to FOIA request the number of lawsuits received by SCDJJ in calendar years 2019-2023 is as follows: 2019: 3; 2020: 6; 2021: 13; 2022: 8; 2023 (as of 12/15/23): 15) and by organizations in class action lawsuits. See also pending litigation, S.C. State Conf. NAACP v. S.C. Dep’t Juv. Just., No.: 0:22- 01338-MGL (D.S.C. Feb. 3, 2023). The NAACP lawsuit alleges that in April 2022, when the original Complaint was filed, all of the children in DJJ custody—including Plaintiffs’ clients and constituents—faced recurring severe violence, constant overuse of isolation, and a significant deficiency in educational and other rehabilitative services. Complaint at 1-2, S.C. State Conf. NAACP v. S.C. Dep’t Juv. Just., No.: 0:22- 01338-MGL (D.S.C. Apr. 26, 2022). Examples:
“Child 9 was repeatedly assaulted by other youth in the BRRC. Video footage captured several youth dragging him into a bedroom cubicle to assault him, twice chasing him to the exit door of the pod to further assault him, and then assaulting him yet again in another bedroom cubicle. Although a DJJ officer observed the event, he refused to protect Child 9—he did not attempt to restrain the attackers, he did not remove the child 9 from the pod, and he did not call other officers to help assist in subduing the attackers. When Child 9’s grandmother complained about the assault—noting that he could barely chew because he had been hit in the jaw—Child 9 was punished and placed in isolation for weeks.” Id. at 18–19.
“Child 10 . . . has been the victim of over sixty assaults. One of the most brutal assaults occurred when Child 10 was sleeping in his dorm: a group of his peers obtained access to his room, snuck up on him while he was asleep, and attacked him with makeshift weapons including a sock filled with rocks. Child 10 was beaten until he was unconscious, and he awoke prostrate on the floor and bleeding. Neither the JCOs nor any other DJJ staff stopped the attack. Nor did they follow up with any investigation into the attackers. Shortly thereafter, he was placed in ‘protective custody’—meaning, solitary confinement. Child 10 received no schooling or rehabilitative services. Despite Child 10’s placement in isolated “protective custody,” he was not able to escape the violence. Last year, the door locks malfunctioned, causing the doors to come open. A group of youth entered Child 10’s room and stabbed him repeatedly, resulting in additional injuries and leaving scars. Once again, DJJ staff failed to intervene to keep Child 10 safe.” Id. at 19. ↑