Sara S. Hildebrand*
Abstract
Juvenile courts were established at the beginning of the twentieth century by a group of reformers who called themselves “Child Savers.” Those founders believed that fundamental differences between adults and children—such as children’s developmental immaturity and malleability—required the establishment of a court for youth, separate from adult criminal court, that focused on youth rehabilitation. Over time, the focus in most juvenile courts has shifted away from rehabilitation towards retribution, punishment, and protection of public safety—principle aims of the adult criminal system. These policy changes have facilitated an exponential increase in the number of youths detained during the pretrial period of their cases in juvenile court.
In 2018, over 195,000 presumptively innocent youth were detained between arrest and final disposition of their juvenile delinquency case. Troublingly, the procedures designed to ensure objectivity and fairness in pretrial detention decision-making instead invite subjective judgments and result in disproportionate pretrial detentions of youth of color. Moreover, an earnest assessment of peer-reviewed studies reveals that pretrial detention of youth fails to serve its intended objectives of protecting the safety of high-risk youth and ensuring their appearance in court. While in pretrial detention, youth often do not get the educational or mental-health support they need and are frequently exposed to unconscionable violence, abuse, and negative influences that inhibit their healthy development.
This Article focuses on the iatrogenic nature of pretrial youth detention and suggests a framework for legislative abolition of youth pretrial detention. In this moment, when communities are rethinking the efficacy of entrenched institutions like policing to effectuate public safety, lawmakers may find public support for legislative efforts like those suggested in this Article. The time is now to end the caging of presumptively innocent children—to shift resources from carceral institutions to programs and community supports that honor the unique characteristics and needs of youth.
* Clinical Teaching Fellow, University of Denver, Sturm College of Law. J.D., University of Denver, Sturm College of Law. Thanks to Profs. Nicole Godfrey, Tammy Kuennen, Christopher N. Lasch, Catherine E. Smith, Tania Valdez, Robin Walker Sterling, and Lindsey Webb for their guidance and feedback. Thanks also to the members of the Rocky Mountain Collective on Race, Place, and Law for their comments, and to and Ashley Cordero for her excellent research assistance. I am indebted to my former juvenile clients, who inspired me to write this Article; your resilience is extraordinary