Why Do We Stick With Ideas That Don’t Work?

There is a growing body of research telling us that we have been doing juvenile probation wrong all along. At the recent annual leadership summit for the National Juvenile Defender Center, I attended a plenary session titled, “Probation is Not a Win: Reexamining How We Approach This Common Disposition” where an expert panel discussed some of the many, many problems with typical probation programs:
 

• Probation orders are often uniform, with no individualization or connection to meaningful services. A defender may witness 1,000 probation sentences without seeing a single change in conditions.
• They reflect no theory of behavior change. I.e., there is no social science supported reason they should result in desistance of delinquent behavior.
• The orders are written at a grade level that exceeds that of most of our clients, leading to difficulty understanding and complying with the order.
• They show minimal impact on recidivism and may actively harm the youths subjected to them.

 
In my personal observation, we can include a few other problems with probation orders. They are typically too long, often exceeding a year in duration. This is developmentally inappropriate for children for a number of reasons. First, youths’ perception of time horizons is different from an adult’s, in that a long time horizon looks infinite to a child. Second, youths’ brains develop so rapidly that an adolescent is in many ways a different person altogether from one year to another, with or without intervention. Does it make sense to keep a child on probation when he has matured beyond being the youth who committed the act? Third, a long probation order is heavily burdensome on families, who are frequently responsible for providing transportation to probation meetings, as young people do not drive.
 
On top of these considerations, there is evidence that the typical “surveillance” or “compliance” based probation does not work at all, especially for lower risk youths. If you think about it, it is only common sense that handing a long list of rules to a kid who has a demonstrated difficulty following rules is bound to lead to trouble.
 
These inappropriate probation orders naturally result in technical violations, followed by incarceration.
 
Most adolescents break rules occasionally. It is developmentally appropriate to push boundaries, and within expectations that most youths will go too far from time to time. Even the Supreme Court realizes that adolescents are more likely to act impulsively and recklessly, are more vulnerable to negative influences, and little control over their environment. Roper v. Simmons, 543 U.S. 551, 569-70 (2004). It is unreasonable to give an adolescent a long list of rules and expect him to obey the rules unfailingly for two years. Most youths risk only the admonition of their parents and loss of privileges for youthful troublemaking. A youth on probation risks incarceration, with the associated trauma, educational disruption, and severed connection to family and community for the same behavior.
 
So what works? According to both the expert panel and the Juvenile Justice Information Exchange, the solution is to curtail or replace compliance-based probation, and install in its place interventions that are designed to build skills and meet the individual child’s needs, or the family’s needs. “Get the right services to the right youth at the right dosage,” according to one panel member. For low-risk youths, the right intervention is often no intervention at all. These youths should never see the inside of a courtroom, much less a detention center. Higher risk youths should have probation orders in which each condition and each intervention is tailored to the child’s strengths and challenges, and should be geared towards positive youth development and skill-building. For example, teaching a program for high-risk youths in Chicago designed to teach how to “stop, look, and listen” in emotionally charged situations led to sharp declines in arrests. That sounds a lot better than just telling the child he can’t get in a fight while he’s on probation for the next two years.
 
Earlier this year, Louisiana passed legislation to phase our age of juvenile delinquency jurisdiction to include 17 year olds. We are a little late to that party, but excited that it is finally happening. Because of concerns about the capacity of the juvenile justice system to handle a large new population, full implementation will not happen until the middle of 2020. One of the issues we will have to grapple with is probation. We can hire and train a bunch of new probation officers. Or, we can do probation better, placing fewer children on probation in the first instance, processing children through probation more rapidly, and implementing more effective interventions that lead to less incarceration and better outcomes for youth.