Maritime lore tells of the intrepid oystermen from Chesapeake Bay and their ultimately ill-advised effort to save the prized oysters from one of their most prolific predators—the ubiquitous starfish. Using the suction of literally hundreds of tube feet beneath each arm, starfish could readily pry the oysters’ shells open, and, thanks to their somewhat disturbing ability to shoot their stomachs at their prey, literally digest them whole in their own shells. Determined to protect their harvest, oystermen took to scouring their oyster beds for starfish; when a starfish was found, the oystermen would slice them in half and hurl them back in the water. While undoubtedly cathartic, the practice was quickly discarded when the oystermen realized, to their dismay, that instead of eradicating the vexatious predators, they had instead unwittingly doubled their population. Every starfish the oystermen cleaved in two would regenerate as a new pair of their brethren.
What these oystermen may have lacked in marine biology expertise, they unmistakably made up for in prudence and common sense; once they realized the error of their ways, they were pragmatic enough to avoid making a bad situation worse. In a time where our national discourse has devolved into a tailspin of inane slogans, conspiracy theories, and hyperbolic outrage, many of today’s policymakers could benefit from a healthy dose of the oystermen’s pragmatism.
The dirty little secret of the juvenile delinquency system—or what its apologists insist on calling the juvenile “justice” system—is not actually particularly secret. In study after study, independent researchers arrive at the same, discomfiting conclusion: the delinquency system fails at its core function of preventing youth who have committed crimes from doing it again. This sobering conclusion is one that bears repeating—the very system tasked with rehabilitating our youth is actually doing exactly the opposite.
A wide-ranging national study recently reaffirmed the well-known belief that pretrial detention of youth actually makes it more likely for those youth to reoffend, and that the likelihood of recidivism actually increases the longer youth remain detained. An even starker example is the Department of Juvenile Facilities (DJF)—California’s juvenile prison system. An astonishing 76 percent of its formerly incarcerated youth are rearrested within three years.
Sadly, the delinquency system not only fails at its primary mission, but is unquestionably a prime example of institutionalized racism as well. Empirical research conclusively establishes that the system’s deleterious effects fall disproportionally on youth of color. In California, a Black boy is 33 times more likely than a White girl to end up detained in juvenile hall before adulthood. Further, fully 89 percent of youth incarcerated at DJF are youth of color. Given these breathtakingly skewed statistics, it is apparent why institutional racism in the criminal justice system is so prevalent—it’s literally baked into the system.
Just as empirical studies quantify the ultimate shortcomings of the delinquency system, similar studies offer valuable insight into the root causes of its dysfunction. A critical example is the so-called “age-crime curve,” which illustrates how the incidence of criminal activity rapidly increases during adolescence, peaks somewhere around one’s early twenties, and then decreases sharply thereafter. The phenomenon, now one of the most replicated and widely accepted findings in criminology, is elegantly explained by the modern understanding of adolescent brain development. Using contemporary imaging technology, researchers now know adolescent brains take much longer to fully develop than previously thought. Because their brains will not fully mature until well into adulthood, teenagers are biologically less equipped to regulate strong emotions and control impulsive behavior (as any of their parents can attest). This, in turn, makes them more prone to engage in criminal activity. Put simply, still developing brains make flawed decisions much more often than mature ones.
Statistically speaking, there is no reason that children of color, if left to their own devices, would be any less likely than their peers to “grow out” of delinquent behavior. However, by funneling vastly more children of color into the juvenile delinquency system, we ensure that more children of color wind up in the adult criminal justice system. Historically, the reflexive response to this trend has been to expand the delinquency system, even knowing full-well that this expansion will inevitably lead to more crime. Although the oystermen of Chesapeake Bay were rational enough to change course once they realized their starfish strategy was actually making the problem worse, modern society doesn’t seem to care (or maybe doesn’t seem to care enough) to stop dealing with juvenile crime in a similar way.
A case in point: In 2019, California governor Gavin Newsom announced a capstone to the flurry of delinquency reforms the state had enacted in the past several years. His bold plan would move DJF from the auspices of the Department of Corrections to the Department of Health and Human Services. Far from some sort of budget-balancing trick, the governor’s plan was billed as a radical sea change of the state’s very mindset toward troubled children, dramatically shifting the dysfunctional system to a healthcare-based approach focused on addressing early childhood trauma and preventing children from being incarcerated in the first place. As Governor Newsom boldly announced, “[w]e are committed about ending the juvenile justice system as we know it once and for all.”
What a difference a year (and a global pandemic) makes. Facing an anticipated budget gap north of $54 billion, Governor Newsom completely scrapped the radical transformation he had announced just months before. In a desperate bid to slash DJF’s $200 million allotment from the state budget, the governor proposed instead to abruptly shutter DJF and ship its youth to county detention centers for local juvenile courts and probation departments to deal with. Youth advocates fear that such a result inevitably will lead county prosecutors and probation departments to increasingly funnel youth into adult prisons and jails, further exacerbating the disconnect between the ostensible purpose of the delinquency system and the actual outcomes it produces. Such a response, youth advocates argue, would be akin to proposing amputation as an effective treatment for a broken arm.
With the ultimate fate of DJF still being debated, the system faces yet another looming disaster because of COVID-19. By their very nature, jails and prisons are massive hot spots for coronavirus infections just waiting to be discovered. In response to one of the nation’s largest outbreaks of COVID-19 at San Quentin State Prison, California authorities scrambled to release over 8,000 state prison inmates in a desperate attempt to curb the spread of the virus. It’s unlikely that DJF will be spared from the ticking time bomb of COVID-19, as the state recently reported 68 positive cases among youth incarcerated there. In light of already poor health care and unsanitary conditions, the very real risk of an uncontrolled outbreak of COVID-19 obviously presents a (deadly) serious health concern for both youth and staff.
Coronavirus has changed the world we know in previously unimaginable ways. Pre-pandemic, for example, it would have been difficult to imagine convicted inmates being released en masse from state prisons to prevent an outbreak of COVID-19. Although the urgent public health need to similarly empty our juvenile prisons is great, it is perhaps outweighed by the moral and ethical imperative to dismantle the system that filled them in the first place. The pandemic has given us both the motive and the opportunity to do both. Instead of sacrificing another generation of youth of color to the system, now is the time to de-carcerate it.
When viewed through the lens of empirical research, it is not difficult to understand both why the current system is ineffective as well as how to reform it. Since exposure to the current delinquency system inevitably leads to recidivism, the most obvious solution is to simply stop charging and locking up our kids. A recent national study found that the recidivism rate for low-risk youth dropped 45 percent when youth were referred to diversionary programs in lieu of being formally charged in juvenile court. In 2012, New York City resolved to move its previously-detained youth into small, community-based rehabilitative facilities. In the following four years, arrest rates fell 52 percent, while the two-year recidivism rate was a remarkable 8 percent. More recently, San Francisco announced it will permanently shutter its 70 year-old juvenile hall in favor of a community-based, rehabilitative approach similar to New York’s. While San Francisco will be the first jurisdiction in the nation to do so, it undoubtedly will not be the last.
Children do not belong in cages for many reasons, not the least of which is that locking kids up exacerbates the very problem we purport to want to solve. In an effort to shift the focus away from the devastation wrought by the current system, critics use fear tactics to warn of the inexorable public safety disaster they say will follow de-carceration. While some may genuinely worry about the results of dismantling our juvenile delinquency system, recent reports suggest that lowering juvenile incarceration rates does not result in a corresponding increase in juvenile crime. In truth, the reality is that it would actually be difficult to make the system any worse than it already is. The oystermen of Chesapeake Bay were wise enough to learn their lesson—why does it seem so hard for our society to do the same?
Tony Cheng: Director of the Youth Defender Clinic (YDC) at the East Bay Community Law Center.
Recommended Citation: Tony Cheng, When the Cure is Worse than the Disease, Calif. L. Rev. Online (Sept. 2020), http://www.californialawreview.org/when-cure-is-worse-than-disease.