IS JUVENILE PROBATION OBSOLETE? REEXAMINING AND REIMAGINING YOUTH PROBATION LAW, POLICY, AND PRACTICE.

• Author: Soung, Patricia

INTRODUCTION 550 I. IMPORTANCE AND REACH OF JUVENILE PROBATION 554 A. Expansive Roles and Reach 554 B. Racial Equity 557 C. Financial Costs 558 II. LAW AND POLICY FRAMEWORKS FOR JUVENILE PROBATION IN CALIFORNIA 559 A. Co-evolution of Probation and Juvenile Court 559 B. Probation and Juvenile Courts--Growing Critiques in 1950s 561 C. Juvenile Probation Overhaul in 1960s 566 D. Post-1961 and Recent Statutory Changes 569 III. FOURTH AMENDMENT JURISPRUDENCE AND PROBATION 571 IV. JUVENILE PROBATION IN PRACTICE 579 A. Research on Orientations and Practice 579 B. Factors Affecting Orientations 585 V. MOVING FROM PROBATION TO YOUTH DEVELOPMENT 587 CONCLUSION 591 INTRODUCTION

In August 2019, the Los Angeles County Board of Supervisors voted unanimously to explore the dismantling and replacement of juvenile probation--a division that employs over 3,400 staff and incarcerates and supervises more than 5,400 youth. (2) In an act of lost confidence in probation after years of scrutiny over the department's performance, the Board tasked a "Youth Justice Workgroup" comprised of over 100 stakeholders to redesign the nation's largest youth delinquency system. (3) The Workgroup set out to reimagine the entire youth justice process, from better preventing youth's involvement with police and the court system, to meaningfully supporting their development while under court monitoring, to developing therapeutic alternatives to the county's juvenile secure institutions.

The dramatic growth of prison populations in the United States during the latter half of the twentieth century along with issues of over-policing and police misconduct have been well documented and decried. (4) But the related expansion and problems of community supervision during the same period as part and parcel of the incarceration and policing systems have captured far less attention. (5) Across California and the United States, persistent efforts have won critical reform of youth and criminal legal systems. (6) Overall, juvenile systems, especially, are relying less on arrest and incarceration of youth to address poverty, drug addiction, health problems, and other root causes of delinquency. For example, some have expanded pre-arrest diversion and detention alternatives, reduced punitive fines and fees, improved reentry supports, curbed adult prosecution and extreme sentencing, and eliminated prosecution altogether for the youngest children and most minor offenses. (7) Proposals once regarded as too radical and impracticable have become logical, needed courses of action to reduce the costs and harms of the juvenile legal system, whose founding premise is to rehabilitate youth and also promote public safety. (8)

Across California and elsewhere, reform efforts have increasingly focused on probation, especially juvenile probation, as an actor that both jails and polices youth in the community. (9) In just five years, Los Angeles County alone has created a dizzying number of temporary bodies in response to the failures of its probation system: the Los Angeles County Probation Workgroup, the Probation Governance Study and Advisory Group, the Probation Oversight Workgroup, the Probation Reform and Oversight Team which lead to the creation of the Probation Oversight Commission to replace the old Probation Commission, and the Juvenile Justice Coordinating Council's various taskforces. (10) The county created the Youth Justice Workgroup in 2020 to pursue among its most transformational projects related to probation and design a new system to replace juvenile probation altogether. (11)

Over the last two years, many events have heightened the significance of police misconduct, incarceration, and racial inequity. First, the COVID-19 pandemic hit, which in the youth justice context lead to urgent calls to release and reduce the number of mostly youth of color in detention across the country. (12) Months later, the murder of George Floyd erased any doubt that a Black man's innocence and compliance would protect his life, much less his safety, in the hands of police officers. Civil unrest and conversations erupted about policing, the broader failures of the criminal legal system, and structural racism generally--each recognized as a public health crisis unto itself. (13) As the economy suffered during these simultaneous crises, California Governor Gavin Newsom announced a plan to close the state's youth prison system and devolve all custody of youth to the responsibility of local county probation departments. (14) The tie between these events--the pandemic, Mr. Floyd's death, the state juvenile prison closure, and the potential expansion of probation--are manifold. Each in some way reveals gaps, fissures, and inequities in public and legal systems. Each calls into question the efficacy of those systems in protecting the health and safety of communities. Each is an opportunity to fundamentally reevaluate our definition of and investment in health and equity.

This Article examines the juvenile probation system as another public legal system that is meant to focus on health and safety. It draws together two frameworks: 1) law and policy which describe the juvenile probation system as intended, and 2) juvenile probation practices and attitudes which reveal the day-to-day translation of the system's formal intentions. Part I underscores the importance of juvenile probation systems as part of broader criminal legal and public health reform agendas. Part II studies the system of probation as it emerged and evolved through sets of laws and policies including statutory, policy, and Fourth Amendment constitutional definitions. Part III analyzes juvenile probation orientations and practices, which often prove at odds with their design and intent. In the end, juvenile probation operates as prison guard, police, and even prosecutor at the same time it tries to be healer, such that the system and its individual officers do not follow a consistent, coherent practice. On balance, probation officers resort to their law enforcement functions as they exercise their myriad duties and powers too often without the requisite background or more complete training of either police or social workers. Legal rights afforded to individuals outside of the probation context and relaxed therein thus rest on an ideal of probation, not its actuality.

Part V discusses the need in the United States to reform, dismantle, or replace probation with youth development-focused systems and provides an example in Los Angeles of a jurisdiction already pursuing such changes. Ultimately, where a system's approach to rehabilitation and accountability becomes synonymous with or too reflexively able to adopt surveillance, containment, and punishment orientations, its ability to deliver meaningful help and support through that same system is improbable. In recent years, communities and public leaders have called into question the very existence of juvenile probation and have sought proposals for better alternatives. (15) Present efforts, like those in Los Angeles, to take youth out of the probation system and put them into a fundamentally different system are a testament to traditional probation's broken design and the need for transformational approaches to youth well-being and public safety. (16)

1. IMPORTANCE AND REACH OF JUVENILE PROBATION

   Juvenile probation has a profound reach over youths in the delinquency system, yet has had insignificant to poor and inequitable results for youth. (17) Probation's multiple roles, reach, inequitable contacts, and costs should all be cause for concern.

   1. EXPANSIVE ROLES AND REACH

      Since probation's inception, researchers have documented the many hats probation officers wear. Traditionally, probation has served two separate functions--social work and law enforcement. But probation's functions evolved over time to "focus[] on the management of cases and the merging of rehabilitation and law enforcement tasks together." (18) The social work function focuses on skills development, needs fulfillment, and harm reduction while the law enforcement function focuses on surveillance, control, and compliance. (19) Thus, researchers have called probation officers "synthetic officers" or "boundary spanners" as they are situated "somewhere between social workers and peace officers in managing diverse cases." (20) Under this model, probation officers "focus[] on risk to the community and future recidivism by actively addressing an offender's criminogenic need areas in order to bring about significant behavior change, while ensuring community safety." (21) Some researchers have described this blending of treatment and surveillance as a "balanced approach" (22) or "hybrid" that combines risk management, control, and rehabilitation. (23) Generally, the day-to-day activities of juvenile probation officers fall into three categories: intake screening and assessment, pre-sentence investigations, and supervision. (24) To complete all of their duties, "a juvenile probation officer takes on several roles, including police officer, counselor, family therapist and mentor." (25) Other literature concedes though that "[w]hether the motive is community protection or treatment, the primary goal of probation is the prevention of recidivism," and that "social control... is the guiding principle of probation conditions, although its expression may be disguised in more humanistic phraseology." (26)

      Today's modern probation system is expansive. "Between 1977 and 2010, the number of individuals on probation more than quadrupled... from just over 800,000 to more than 4,000,000," and the number of individuals serving terms of parole supervision after incarceration "grew from more than 173,000 to nearly 841,000." (27)

      In the juvenile delinquency system, similar expansion has occurred. The number of delinquency cases processed in juvenile courts across the United States nearly doubled from about 400,000 in 1960 to...