Position Statement 51: Children With Emotional Disorders In The Juvenile Justice System

Mental Health America (MHA) places a high priority on the care of children and youth (“children”) with behavioral problems reflecting mental, emotional and substance use conditions (“behavioral health conditions”). Mental health and substance use treatment services can prevent children with behavioral health conditions from committing offenses that result in juvenile justice scrutiny and from re-offending.[1] Intensive work with families at the early stages of their child’s behavioral problems can lessen the likelihood of juvenile justice involvement and promote the child’s positive emotional development.[2] Mental Health America believes the needs of such children and families are best met through a system of collaborative community-based mental health and substance use treatment services. The juvenile justice system, the substance abuse system, the education system, and the mental health system should work together to develop integrated programs and services for these children, which should foster academic and social success as well as behavioral health treatment.[3]

Lack of funding has long been one of the main causes of our failure to provide the services needed to keep children out of the juvenile justice system or to provide appropriate care to children in the system.  However, the Affordable Care Act (ACA), particularly in states that have expanded Medicaid, has created a new funding stream that will help. Federal and state health insurance parity laws will also help ensure that needed services are covered under private health insurance plans.[4]

Effective diversion is the essential first step in accessing community-based, integrated services before the juvenile justice system is invoked,[5] and if the aim is treatment more than punishment, as is usually professed in juvenile justice principles, Olmstead principles require that community-based family preservation resources be exhausted before a more restrictive correctional setting is used. Nonetheless, as documented to the limited extent possible with current data,[6] it appears that custody relinquishment to juvenile justice facilities is too often invoked when community-based, recovery-oriented  resources fail, even though such alternatives would be more appropriate, were they to exist.[7] This problem is particularly apparent in rural areas.

When children must be incarcerated, because diversion is truly inappropriate, they should be screened upon admission for mental health conditions,[8] and extra care should be taken to protect them from harm from themselves or others, to minimize the harm caused by incarceration itself and to provide developmentally appropriate and trauma-informed mental health services. MHA deplores the disparate treatment of minority youth in the juvenile justice system[9] and urges ongoing efforts to address it, as detailed by the American Bar Association, the Office of Juvenile Justice and Delinquency Prevention, the National Conference of State Legislators, and other advocates working to reduce Disproportionate Minority Contact in juvenile justice.[10]

Background

Sixty-five to seventy percent of children in the juvenile justice system have a diagnosable mental health condition,[11] and children in the juvenile justice system have substantially higher rates of behavioral health conditions than children in the general population.[12] At least seventy-five percent of youth in the juvenile justice system experienced traumatic victimization, and ninety-three percent reported exposure to adverse childhood experiences including child abuse, family and community violence, and serious illness.[13] Unfortunately, children are often involved in the juvenile justice system because of a lack of community-based treatment options and are detained or placed in juvenile facilities for minor, nonviolent offenses.[14] “The placement of these youth in the juvenile justice system is part of a growing trend toward the ‘criminalization of the mentally ill’– placing adults as well as children with behavioral health needs in the justice system as a means of accessing services that are otherwise unavailable or inaccessible in the community.”[15]

Diversion

MHA believes that most of these children do not need to be incarcerated. Whenever possible, children should be diverted away from the juvenile justice system and towards community-based services, including behavioral health treatment as needed.[16]   This is especially true for non-violent offenses and technical probation violations. MHA further believes that treatment of children with behavioral health conditions is most effective when planned and integrated at the local level with other services provided by schools, child welfare agencies, and community organizations. These services should be recovery-oriented, strengths-based, individualized, family-focused, trauma-informed, and appropriate for the child’s age, gender, language, and culture. The essence of diversion is that youth be positively engaged and integrated in their families and communities:[17]

• Youth need the opportunity to explore, discuss and reflect on their ideas. Research shows that when young people are given a meaningful opportunity to express their opinions they have an increased investment in the program or initiative and more confidence in their own voice.[18]
• Youth need the opportunity to embrace creativity. When provided with the opportunity to express themselves creatively, youth experience enhanced mental health and increased growth and development^.[19],[20]
• Youth need the opportunity to foster and nurture connections. When given time specifically to cultivate connections with both peers and adults, young people express a greater bond with others and a greater sense of community.[21]
• Youth need the opportunity to create a lasting impact within their community. When young people are involved in community activities, they experience improved mental health, are less likely to consume alcohol and other substances, and have increased physical activity.[22] [23]
• Youth need the opportunity to have emotional safety. Environments where youth report feeling psychologically safe promote participation, engagement and positive development. Qualities of these environments include relaxation, absence of fear and stress, respect and ability to express themselves.[24] [25]
• Youth need the opportunity to be mentored in making good decisions. During adolescent years, young people develop stronger logical and moral thinking. At the same time they are craving independence and responsibility[26].  Environments that promote critical thinking and leadership opportunities, allow youth to develop prosocial skills such as empathy, and practice decision-making and time management skills.[27]

Education, advocacy, and support should also be offered to the families of these children. Intensive work with families at the early stages of their child’s behavioral problems can support them in caring for their children at home.[28] Although we have not yet done enough to ensure that families can afford these community-based services, the implementation of the ACA and Mental Health Parity Laws are important steps toward this goal.[29]

Principles for Change

In 2007, with a grant from the Office of Juvenile Justice and Delinquency Prevention, the National Center for Mental Health and Juvenile Justice (NCMHJJ) issued its Blueprint for Change: A Comprehensive Model for the Identification and Treatment of Youth with Mental Health Needs in Contact with the Juvenile Justice System, cited at endnote 16.

MHA endorses the key principles which form the basis for the NCMHJJ Blueprint:

• Children should not have to enter the juvenile justice system in order to access mental health services.

• Whenever possible, children with mental health conditions should be diverted into evidence-based mental health treatment in community settings.

• If diversion out of the juvenile justice system is not possible, children should be placed in the least restrictive environment with access to evidence-based treatment.

• Information collected in order to provide mental health screening should not be used to jeopardize the legal interests of children as defendants.

• Mental health services provided to children should respond to issues of gender, ethnicity, race, age, sexual orientation, socio-economic status and religion.

• Mental health services should be consistent with the developmental realities of children.

• Whenever possible, families and other caregivers should be involved in treatment decisions made for children.

• Planning and services for children must be based on close collaboration among mental health, juvenile justice, education and other systems.

• Services and strategies for serving children in the juvenile justice system must be regularly evaluated to determine their effectiveness.

Similarly, MHA endorses the “principles” of the McArthur Foundation’s “Models for Change” in the Juvenile Justice System, which has now been adopted by 35 states:

• Fundamental fairness All system participants—that is, all those who have a right to expect justice, including youth, families, victims, and communities—deserve fair treatment.

• Juvenile-adult differences A juvenile justice system must account for the fact that youth are fundamentally and developmentally different from adults.

• Individual differences Juvenile justice decision makers must acknowledge and respond to young peoples' differences from one another in terms of development, culture, gender, needs and strengths.

• Youth potential Youth have strengths and are capable of positive growth.

• Safety Communities and individuals deserve to be and to feel safe.

• Responsibilities Youth must be encouraged to accept responsibility for their actions and the consequences of those actions. Communities have an obligation to safeguard the welfare of children and youth, to support them when in need, and to help them to grow into adults. The juvenile justice system should reflect that it is a vital part of society’s collective exercise of its responsibility toward youth.”[30]

Incarceration of Children

Placing children with behavioral health conditions in correctional facilities poses special risks and obligations. Children with behavioral health conditions are especially vulnerable to the difficult and sometimes deplorable conditions that prevail in correctional facilities. Overcrowding often contributes to inadequacy of behavioral health services and to ineffective classification and separation of classes of persons confined, which can exacerbate problems for vulnerable children. Ineffective management can both increase vulnerability and exacerbate behavioral health conditions.[31]

MHA’s Position Statement 56: Mental Health Treatment in Correctional Facilities[32] details our views concerning the rights of persons with mental health conditions in adult correctional facilities. Correctional facilities have a duty to provide medical services, including mental health and substance use treatment services, and to provide protection from harm. The juvenile justice system and separate detention facilities for children were created because of an understanding of the unique needs of children and commitment to the principle that rehabilitation rather than punishment should be the primary goal in dealing with children. Thus, children with behavioral health conditions in correctional facilities have an even greater need for and right to the services which must be provided to adults with mental health conditions, detailed in Position Statement 56.

Call to Action

MHA advocates:

• Authorization and incentives for diversion and pre-contact early intervention, including coordination with school staff, planning teams, and community providers.

• If a child needs to be removed from school or another community setting, making every effort to do so in a manner which is least disruptive to the school environment and least traumatizing to the child.

• Avoiding the use of restraints or shackles (including transport from a community setting or during court appearances) except where necessary to prevent seriously threatened harm or flight and only after less restrictive alternatives have been deemed ineffective.

• Mandating screening and assessment of all children as soon as law enforcement contact is initiated with appropriate follow-up, including additional safety protections for children at risk of harm.

• Ensuring that mental health assessments include assessment of juvenile competency that takes into consideration mental and development concerns as well as developmental immaturity.[33]

• Training school staff, law enforcement, and juvenile justice staff in working with children with behavioral health conditions, including how to interact in a way that supports recovery, and avoids unnecessary incarceration.

• Making available resources to support family involvement in the juvenile justice system.

• Strengthening reintegration into the community by ensuring that youth and their families are provided with adequate resources and linkage to community services in discharge planning.

• Never using the juvenile justice system as an alternative to treatment, services, and supports for children with mental health concerns.

Juvenile justice system reform is and will be on the legislative agenda in most states for some time to come, and advocacy of the principles of this position statement by affiliates and advocates is the best way to improve behavioral health outcomes of children entangled in that system. Specifically, MHA advocates effective intervention to assure that children with behavioral health issues get the services required for:

• Prevention

• Early Identification

• Diversion

• Treatment, in the community whenever possible

• Effective classification in correctional facilities

• Safety and Fairness in correctional facilities and

• Community Reintegration

Effective Period

The Mental Health America Board of Directors approved this policy on September 12, 2015.  It is reviewed as required by the Mental Health America Public Policy Committee.

Expiration: December 31, 2020.