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  1. Title: Addressing the Needs of Youth with Disabilities in the Juvenile Justice System: The Current Status of Evidence-Based Research May 2003

  2. Author: National Council on Disability, 1331 F Street, NW, Suite 850, Washington, DC 20004 (KACW 6/13/03)

    3. Kathy’s Note: This article is extremely lengthy, 129 single-spaced pages and covers several issues. After much thought and feedback I have decided to focus on the relationship between disability and juvenile delinquency. The majority of the disabilities discussed are behavioral or emotional disabilities; it also mentions speech and hearing disabilities. I will do a separate paper on the appendices.

  3. Disability Law

    4. Disability law is relevant to children involved in the juvenile justice system because they are entitled to have their disability-related needs met. Alternative education programs, detention and correction facilities, and other juvenile justice programs are all legally mandated to provide IEPs to youth who need them.

    The Individuals with Disabilities Education Act (IDEA) as revised in 1997, placed greater emphasis on transitional planning for youth with disabilities, and addressed discipline for children with disabilities.

    To eligible under IDEA a child must:

    • Have at least one of a list of impairments, which includes most developmental disabilities and
    • Require special education and related services as a result of that disability.

    The 1997 Amendments to IDEA specifically addressed the discipline of children with disabilities:

    • Schools can remove a child for up to ten school days for any violation of school rules if it was not a pattern
    • Schools must determine if the behavior was a manifestation of the child's disability
    • A child with a disability could not be long-term suspended or expelled for behaviors caused by his or her disability
    • Services must continue for children with disabilities who are suspended or expelled
    • Concrete signs of progress are inclusion in regular classrooms, participation in standardized testing, rates of high school graduation and college enrollment, employment rates, numbers of special education teachers, and levels of parental involvement.
    • A 2000 study on federal monitoring and enforcement of IDEA found that every state was out of compliance with IDEA requirements, for example not conducting the functional behavioral assessments (FBA) or developing positive behavioral interventions and supports (PBIS). The noncompliance for youth with mental disabilities may contribute to avoidable behaviors that result in delinquency or an increased likelihood of referral to the juvenile justice system.
    • Title II of the Americans with Disabilities Act: Title II of the ADA includes all activities of state and local governments regardless of the size of the government entity or whether or not it receives federal funding. Title II requires that state and local governments give people with disabilities an equal opportunity to benefit from all of their programs, services, and activities, including public education.
    • Civil Rights of Institutionalized Persons Act (CRIPA) Enacted in 1980, the CRIPA authorizes the U.S. Attorney General to investigate conditions of confinement in state or locally operated jails, prisons, pretrial detention centers, juvenile correctional facilities, institutions for people with psychiatric or developmental disabilities, and publicly operated nursing homes. The law allows the Department of Justice (DOJ) to take legal action against state or local governments for failing to meet previously established constitutional or statutory rights of people institutionalized in publicly operated facilities. By mid-1999, DOJ had investigated fewer than 100 juvenile detention and corrections facilities in 16 states and territories, but recently the Bush Administration has initiated more.

    The President’s Commission on the Excellence in Special Education: Disability law and programs may also have the unintended effect of creating incentives for pushing children "downstream" out of regular schools and into the juvenile justice system. The President’s Commission noted that "leaving no child behind" also means leaving no child with disabilities behind, including those children with disabilities in foster care or juvenile justice facilities, from the early elementary grades through high school. Making the least restrictive environment a focus on results-based services will move services for children with disabilities in the most integrated setting possible.

  4. Juvenile Justice and Youth with Disabilities:
    5. Identification of youth with disabilities in the juvenile justice system can be relevant at almost all stages of processing, including whether formal delinquency proceedings should move forward. Youth referred to the juvenile justice system are first referred to intake, where they are assessed for their risk to self and others and for any needs that should be addressed. Intake constitutes a critical point where youth with disabilities can be identified, along with any special needs they may have. Information about the disability often helps to explain behavior and point to the appropriate intervention. IDEA must be complied with and may play a significant role in reducing delinquent behavior. Few intake units have the capacity or training to identify youth with disabilities, interpret their behaviors correctly, or link them to needed services.

    From intake, a youth may be released outright, detained, or referred for processing by the courts. Dismissed youth may be at greater risk for additional delinquency and referral to the justice system if they do not receive disability-related services. Youth who are referred for processing may not receive adequate representation or advocacy if defense counsel are not aware of the youth's disabilities. Many youth will still be of an age to be reentering schools, as well as their families. This transition may be difficult due to the sometimes-extensive period of time that youth may have been incarcerated.

  5. Prevalence of Youth with Disabilities in the Juvenile Justice System:
    6. Estimates of youth in the juvenile justice system vary considerably because of differences the definition and measurement of disability, poor screening and assessment processes both in schools and in the juvenile justice system.

    • Approximately 10 percent of general population youth have a special education disability; while between 30 and 50 percent of incarcerated youth, and 10 between 36 percent of them have specific learning disabilities (SLD)
    • Up to 12 percent of incarcerated youth are labeled with mental retardation.
    • Attention deficit hyperactivity disorder (ADHD) is four to five times more common in correctional facilities than in schools and between 20 and 50 percent of incarcerated youth are estimated to have ADHD.

  6. Schools as Conduits to the Juvenile Justice System:
    7. School policies and practices may be contributing to an unnecessary and inappropriate flow of children and youth with disabilities, especially minority children, into the juvenile justice system. Factors that may contribute to this trend include:

    • "Zero tolerance" discipline policies
      • Enhanced security procedures and student surveillance Greater information sharing with law enforcement

    This research points to a greater emphasis on test performance, ability grouping or tracking, and grade retention; an inability among schools with large minority populations to retain qualified teachers or provide adequate counseling services; restrictive placement, and low quality of support services among minority children within the special education system.

  7. Risk and Protective Factors for Delinquency among Children and Youth with Disabilities:
    8. Emotional issues and school failure represent critical risk factors among this population, while family cohesion and school involvement represent critical protective factors. SED and a history of violence may also predict anti-social or maladaptive behavior. Empirical evidence states youth with disabilities are differentially targeted and processed by schools, law enforcement, and the courts, contributing to disproportionate representation of youth with disabilities in the juvenile justice system. Some theories suggest that youth with certain types of disabilities may exhibit behaviors, such as impulsiveness or an inability to follow directions drawing greater attention to them and a greater likelihood of referral to juvenile courts. Once there, these same behaviors may result in a greater likelihood that youth will be detained, formally processed, and sanctioned more severely.

  8. Prevention and Early Intervention Initiatives:
    9. In both educational and juvenile justice settings, there have been many calls for greater attention to prevention and early intervention programming. During the past decade, the overriding trend appears to have been one of promoting greater accountability. For example, most states have enacted “get tough” laws designed to increase the punishment options for juvenile offenders. Such laws do not always undermine the funding or support for prevention and early intervention initiatives. However, they clearly can reduce the availability of funding. Many studies suggest that the absence of prevention and early intervention programs has fueled greater pressure on schools to push youth with disabilities into alternative education settings and the juvenile justice system.

    At the same time, schools increasingly are under pressure to "make the grade" by achieving certain performance standards, making it easier to expel the more difficult students to manage or serve. Indeed, since the publication of A Nation At Risk in 1983 and A Nation Prepared in 1986, parents, legislatures, and school boards have been demanding improvements from schools making them respond by adopting high academic standards, improving accountability, and achieving excellence, while at the same time cracking down on serious violations. Research suggests that the main beneficiaries of these changes have been college-bound youth. Non-college-bound youth, children with behavioral disorders or with special needs that are not being met, and others who for a variety of reasons have not done well in traditional public schools have largely been left behind. The high costs of serving some students with disabilities, along with the linking of school funding to students' test performance, have given schools a strong incentive to exclude these children, by either allowing them to drop out or pushing them out to alternative education programs.

  9. Disability-Related Services in Juvenile Justice Settings:
    10. An adequate mental health system in a juvenile facility must identify mentally ill youth, provide treatment to them, keep them from harming themselves or others, protect them from abuse, and ensure that they receive necessary accommodations to enable them to benefit from programs offered at the facility. Not every mental illness is immediately identifiable by correctional staff in a juvenile facility. It is important for mental health needs to be systematically evaluated by qualified professionals. This must happen not only to facilitate appropriate professional treatment, but also to ensure that line staff can become aware of the special needs of individual juveniles and be taught appropriate responses to those needs. Staff respond with anger, discipline, or even force-even though other interventions could have defused the situation.

  10. Specialized Youth Court:
    11. Specialized courts have become increasingly popular approaches to juvenile justice processing. In many respects, they reflect the same concerns that motivated the founders of the first juvenile courts. For example, critics of traditional juvenile court operations have noted the lengthy delays in processing cases, the lack of individualized and appropriate treatment and sanctioning, and the lack of sustained and consistent monitoring of the progress youth make while under court supervision. Proponents of specialized courts emphasize ways juvenile courts have become increasingly like criminal courts and the potential effectiveness of alternative courts. Skeptics note that in practice these courts rarely are implemented as designed and there are possibilities for negative unintended consequences. The National Mental Health Association (2001) has expressed concern that mental health courts can be inappropriately coercive, resulting in greater stigma for defendants. If implemented well, they could have significant impacts for youth with disabilities. Their focus, for example, on better screening and assessment and individualized treatment could result in improved identification of and possibly services for youth with disabilities. The sheer growth in specialized courts suggests the impact, whether positive or negative, is large, and that further research thus is warranted.

  11. Opportunities to Address the Needs of Youth with Disabilities:
    12. There are many principles that communities, schools, and justice systems can improve the identification and service delivery with disabilities who are at risk of becoming involved with the juvenile justice system or are already involved in it.

    Services should be comprehensive, addressing the full range of each youth's needs. Assessment is critical to ensuring accurate identification of youth with disabilities, their specific needs, and how best to address these needs. This information is critical as well for early identification of youth who are eligible for special education services and for assisting with the transition of youth from correctional settings to the community. These services can help prevent or reduce delinquency and other negative outcomes and increase the likelihood of positive outcomes. Coordinated and well-organized efforts among community leaders and residents, schools, child welfare and social service agencies, and the juvenile justice system are reported to be critical for successful efforts to address the needs of youth with disabilities and specialized needs. No one system generally has sufficient resources to address these needs alone, and the juvenile justice system in particular has far less funding for and experience with the disability law and the needs of youth with disabilities.

  12. Best Programs and Practices:
    13. The best programs are culturally responsive and address the specific needs of children from various racial and ethnic groups and those with special needs, those disabilities not yet identified. Youth who consistently face barriers and limited opportunities may develop special strengths that can enable them to succeed in life. Practices that work include:
    • Having a low ratio of students to teachers
    • Highly structured classrooms that employ behavioral classroom management techniques, a positive rather than a punitive approach to behavior management, adult mentors, individualized behavioral interventions based on functional behavioral assessments, social skills instruction, academic instruction, and parental involvement.

  13. Barriers to Disability Law:
    14. IDEA by law must be fully implemented in both schools and juvenile justice settings. Major barriers to full implementation include:

    • A lack of sustained and comprehensive commitment among legislators, schools, and juvenile justice systems
    • A lack of cooperation among schools, the juvenile justice system, and other child-serving agencies;
    • A lack of awareness among juvenile justice system practitioners about disabilities and the legal rights of youth with disabilities; and the lack of sufficient funding
    • A lack of aggressive enforcement of IDEA by the juvenile justice system, contributing and aggravating many other barriers to the juvenile justice system adequately serving youth with disabilities, including those at risk of referral to juvenile courts
    • Failure by intake units and correctional facilities to use systematic and appropriate screening and assessment instruments, and those that do frequently may not use the resulting information appropriately.
    • A lack of collaboration between public school system and the facility
    • A lack of aftercare

  14. Recommendations:
    • The Federal Government should enforce Section 504, CRIPA, and the ADA to ensure that youth in schools and in the juvenile justice system receive entitled services with federal monitors enforcing and citing states for lack of compliance.
    • The Federal Government should establish delinquency prevention and early intervention as a fundamental priority of the nation's public schools system.
    • Educate the public, practitioners, and policymakers about disabilities among youth and their civil rights, which apply to youth in the juvenile justice system as well as in schools. Ensure effective communication between schools and the juvenile justice system during the transition of youth with disabilities into and out of the justice system. Ensure that programs and policies systematically emphasize support prevention, early intervention, and intervention practices. /li
    • The Federal Government should undertake a comprehensive research initiative on all relevant dimensions bearing on youth with disabilities in the juvenile justice system. Assess the prevalence of disabilities among youth at all stages of the juvenile justice system, including intake, probation, detention, corrections, and parole. Prevention currently is conducting prevalence studies of juvenile detention and corrections. Identify the extent of services and the demand/service gap.
    • Improve the appropriate use of assessments, realizing that "assessment" means different things and serves different purposes both in various departments within schools and across various stages of the juvenile justice system.
    • Identify current levels of and effective information-sharing processes, communication, and collaboration within and among juvenile justice, education, child welfare, and social service agencies.
    • Explore, for example, the magnitude of misdiagnosis and over diagnosis of youth, especially minority youth, as having disabilities when they do not.
    • Identify programs and interventions that work specifically with youth with disabilities in juvenile justice settings. For example, what literacy models are most effective in correctional facilities?
    • Identify cost-effective programs and policies for all stages of juvenile justice (e.g., prevention, screening and assessment, diversion, sentencing, placement, detention and corrections, probation and parole). At the same time, conduct process evaluations documenting how most effectively to implement programs and policies that "work" or that are "promising."
    • Identify how many youth with disabilities are transferred to the criminal (adult) justice system and in the federal justice system.
    • Identify what their disabilities are, how these disabilities are addressed, and whether there are financial disincentives to identify and address disabilities at different stages of the adult and federal justice systems.

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