Juvenile Justice Systems around the Globe: Alternative Ways to Address Youth (“AWAY”) Project

The “AWAY” Project analyzed changes implemented in the various juvenile justice systems of several European countries over the course of two years- from 2017 to 2018. [1] The countries included in the analysis were Bulgaria, Croatia, Hungary, Romania and Belgium. The project’s main research questions were: (1) What are the existing measures and processes for diversion that exist in the countries, and in what percentage of cases of children in conflict with the law are they used?; (2) What factors (existing needs, gaps and pitfalls) hinder better and more frequent use of diversion and child-friendly justice practices?; and (3) what needs to be improved in the juvenile justice system to promote diversion and restorative justice using a child friendly approach? [2] Over the course of several blogs, I will discuss the findings of the “AWAY” project as it relates to the specific countries, and what the United States can take away and implement in our own system.

Juvenile Justice System: Belgium

Throughout Europe, national and European legislation (along with the ratification of the CRC) establishes that individuals under the age of 18 are considered children with limited legal capacity. [3] In Belgium, the juvenile justice system is called “protective justice” and the term “act deemed to constitute an offence (ADCO)” is used in place of “crime” or “offence” to enforce the view that children are not fully capable of understanding the nature of their criminal actions. [4] If a child is suspected of an “ADCO,” they will first meet with the police and be informed of their rights. [5]A prosecutor then has the choice to refer the case to the juvenile court or use a diversion method. These methods include taking no action, issuing a warning, or suggesting mediation with the victim. If a case is referred to a juvenile court, the judge has the option to issue several measures aimed at allowing the child to remain with their family or legal guardian. These options include issuing a warning, an order to take on a written project, outpatient therapy, community or educational services, restorative options, or for the child to go under supervision. In rare circumstances, the judge may place the child with a temporary guardian, or in an institution for psychiatric, therapeutic, or education services. [6]

Belgium’s system focuses on restorative justice and aims to repair the damage done by an ADCO and restore the bond between the perpetrator and the victim. If a victim has been identified the prosecutor must consider mediation, and if they choose against it, they must issue a written document stating that they have considered it but concluded that other measures are needed. All parties must agree on the mediation. The goal of the system is to keep the child with their families or legal guardian and always consider a restorative measure first. [7]

In comparison to the U.S. juvenile justice system, the “protective justice” system of Belgium gives police, prosecutors, judges, victims, children, and their parents/guardians far more options. Institutionalization is viewed as a last resort and there are multiple safeguards put in place to ensure it stays that way. Additionally, I think the language that the Belgium system uses is something the U.S. system could borrow from. It enforces the fact that that children’s brains are still developing, and as a result they are not able to fully comprehend the criminality of their actions in the way most fully developed adult brains could.

[1] Éva Kerpel et al., Alternative Ways to Address Youth (AWAY) Project Research Synthesis Report 5 (Viktória Sebhelyi et al. eds., 2018).

[2] Id. at 6.

[3] Id.

[4] Id. at 22.

[5] Id.

[6] Id.

[7] Id. at 23.

The Runaways: Foster Youth & Sex Trafficking in Houston, TX

I can say without controversy, and as a die-hard Houstonian, that the streets of Houston are not an ideal place for unaccompanied minors— especially those without adequate resources and support—to have healthy, formative experiences. And yet, thousands of children find themselves in this situation every year. The Texas Department of Family & Protective Services reported that 1,707 youth placed under their conservatorship ran away from their placements in 2017. In its annual Foster Youth Runaway Report, DFPS noted that being a runaway or homeless youth constitutes the number one risk factor for exploitation. A total of 35 young people reported having been sex trafficked while on runaway status in 2017, per that same report.

Establishing a causal link between homelessness and exploitation in young people might seem straightforward or even obvious given the lack of resources, familial support, stability, and guidance inherent to being unhoused. But unpacking the concrete reality of the situation reveals even more distressing truths. According to several studies cited in a 2013 report by the HHS Administration on Children, Youth, and Families (ACYF), anywhere from fifty to more than ninety percent of children who were victims of sex trafficking had been previously involved with child welfare services. What do we make of this unsettling correlation? How are we failing foster kids by allowing them to fall victim to trafficking?

Last week, I attended a Zoom panel hosted by the Juvenile & Children’s Advocacy Project (JCAP), United Against Human Trafficking (UAHT), and Unbound Houston, an organization centered on human trafficking awareness and prevention. One of the panelists, NH, spoke on the harrowing experience of foster care and surviving human trafficking. She pointed out that, when dealing with trafficking allegations, DFPS focuses its investigations on the child’s household; that is, the Department only has the legal authority to investigate the people directly responsible for the child’s welfare, like a parent or legal guardian. Traffickers don’t typically target members of their own households, let alone their own children. But the 2013 ACYF report noted that sex traffickers often recruit foster kids from group homes. And in NH’s case, the Department actually approved placement for her—a pregnant minor at the time—in a home with the man who would be her trafficker. Such a complete oversight shocks the conscience and makes one wonder: What, if anything, is being done to prevent this from happening?

In 2017, DFPS established the Human Trafficking and Child Exploitation Division (HTCE); two years later, DFPS implemented a screening tool, called the Commercial Sexual Exploitation – Identification Tool (CSE-IT), developed to help caseworkers identify potential victims of trafficking among the kids who come under the care of the Department. The State is taking steps toward ameliorating the issue of child sex trafficking, largely due to widespread criticism—and legal action—regarding its previous methods. However, in 2019, DFPS reported that 2,122 kids under their conservatorship had run away at some point in the year and that 46 of those reported being sex trafficked—an increase in both the number of runaways and in trafficking instances compared to 2017. (Although this could be due to improved tracking/reporting systems). Also, data shows that sex trafficking cases (both of adults and youth) in Harris County actually doubled in 2019, with no indication of these numbers decreasing. Naturally, the 2020 pandemic has had some impact on these statistics, and perhaps it is still too early to determine whether the efforts of HTCE and DFPS’s improved screening techniques will help kids in situations like NH’s. But there is still the issue of the runaways.

From what I’ve learned working with trafficked youth over the past few months, part of the problem lies in the fact that many kids prefer the streets to foster placements, which often impose strict rules and services the kids just aren’t interested in. The teens (particularly the older ones) may struggle to connect with their caregivers and advocates, and would rather be among their chosen folk in a looser, more familiar environment. Overcoming the effects of grooming is also a major challenge; as I’ve unfortunately witnessed, recovered runaways are prone to return to their traffickers at the earliest chance they get. This is where HTCE and organizations like UAHT, Unbound Houston, and Harris County Youth Collective (HCYC) get it really right: by focusing on community awareness and offering resources for kids involved with the system outside the system. 

Part of HTCE’s efforts—like those of other worthy local organizations—have involved providing outreach and education on human trafficking at the community level. Over the past year, these groups have trained thousands of people on how to recognize and prevent trafficking in their communities, established safe spaces for victims and families, and built databases for connecting individuals with the resources they need most (See: the 2020 Human Trafficking Prevention Task Force Report). HCYC’s Youth & Community Specialists offer mentorship and counseling to young people from a lived-experience perspective; they understand what these kids are going through (and what their particular needs may be) because they’ve actually been through it themselves. This community-based work is vital to harm prevention and improving outcomes for kids in foster care, especially those most susceptible to exploitation. 

It’s about empowering youth to commit to their own futures and creating environments conducive to staying on that well-lit path. That means giving these kids resources they’ll actually want to partake of, equipping locals with the necessary tools, and creating a community prepared to fight to keep their young people safe. In this way, we can work toward making the mean streets of Houston a better place to be.

No Second Chances Or No Chance At All

No Second Chances or No Chances At All

On Monday, March 22, Indiana legislatures conducted the second reading of a bill that would restore prosecutorial discretion to try 16 and 17-year-old children in adult court for their second gun crime.[1]  Representative Wendy McNamara authored the bill in response to an Indiana Supreme Court decision that cast doubt on the jurisdiction of the juvenile court to hear cases in which teenagers are charged with dangerous possession of a firearm.[2]  According to representative McNamara, the bill merely reinforces the status quo by “putting back into law what has currently been in practice for as long as I can know. . . .”  At first blush, it might seem hard to argue with Committee Chairman Senator Mike Young’s assertion that “kids with guns do dangerous things, and we gave them one break, and on the second one we’re going to send them to adult court.”  Such an assertion seems to follow a common belief held by many that kids who do adult crimes should do adult time.

The problem is this is not an adult crime.  In fact, Indiana’s dangerous possession statute “is clear and applies only to children; an adult cannot commit dangerous possession of a firearm.”[3] If IN HB1256 passes, it would be just another example of criminalizing youth, prioritizing the perception of public safety over education and development.  What’s more, another piece of legislation, IN HB 1369, which passed the House by 65-31 vote, would eliminate the license requirement to carry a handgun in Indiana despite the $5.3 million per year the license raises and fears the bill would make police officers and the general public less safe.[4]

So, what’s really going on here?  Does a dangerous possession statute like Indiana’s betray a presumption of dangerousness in youth?  Is the solution to remove kids from their dangerous homes and place them in prisons?  Will waiving a teen gun offender to adult court amount to a denial of services and individualized treatment by placing them on probation or community correction?  And why in the world would we subject a child to the adult criminal justice system for conduct that is not criminal behavior? As I ponder these questions, I can’t help but think this is just another example of the system working as it was designed to, an example of what Alec Karakatsanis would characterize as people in power making very important choices about what is and is not a crime for very particular racial and political purposes.[5]

In my view, it is absurd to deprive a person of their childhood because they made the same mistake twice – which in and of itself seems to indicate a lack of mature reasoning.  It is absurd to “discipline” teenagers in a way that does not teach them about the rights and responsibilities they will have as adults.  But this seems to be the criminal “justice” system working as it was designed.  When 83% of the young offenders being sent directly to adult court on firearms charges are children of color, it seems clear that proponents of the bill are indeed just trying to maintain the status quo of controlling poor people and people of color.  Because, while a “lawful citizen in the state of Indiana” should have the right to protect themselves without state interference, children – particularly children of color – are not afforded the same right.  Imagine, for instance, white, female, country singer, Miranda Lambert said that after receiving threats, she carries a weapon for self-protection.[6]  That is, no doubt, her right and many might celebrate her for doing so.  However, children who grow up in marginalized communities, which inevitably become designated as “high crime areas” to justify infringements on other constitutional rights such as the 4th Amendment, may start carrying a gun for protection.  Driven by the same trauma as a “lawful citizen,” these children are thrown in jail, labeled criminals, and deprived of hope for the future.

Although I have focused on Indiana, this is a nationwide problem.  For example, truancy laws across the country subject children to the “justice” system for conduct that would not be criminal if committed by an adult.  And while these laws may be enforced under the guise of public health and safety, in reality, it is just another way for the legal system to marginalize and subjugate children, preparing them to be disenfranchised and despondent adults.

[1] https://fox59.com/news/politics/indiana-senate-to-debate-bill-to-send-more-juveniles-to-adult-court/

[2] K.C.G. v. State, 156 N.E.3d 1281, 1282 (Ind. 2020)

[3] Id. at 1283.

[4] https://www.indystar.com/story/news/politics/2021/02/22/indiana-general-assembly-house-votes-eliminate-handgun-license/6765355002/

[5] https://www.texasobserver.org/alec-karakatsanis-usual-cruelty-criminal-justice-reform/

[6] https://tasteofcountry.com/miranda-lambert-admits-she-carries-a-weapon-for-protection/