Monitoring the Youth: The Collision of Rights and Rehabilitation

Author:Kate Weisburd
Position:Director & Clinical Instructor, Youth Defender Clinic, East Bay Community Law Center, UC Berkeley School of Law
Pages:297-341
SUMMARY

A monumental shift in juvenile justice is underway, inspired by the wide recognition that incarceration is not the solution to youth crime. In its place, "electronic monitoring" has gained widespread support as a new form of judicial control over youth offenders. Supporters herald it as "jail-togo": a cost-efficient alternative to incarceration that allows youth to be home while furthering... (see full summary)

 
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297
Monitoring Youth: The Collision of Rights
and Rehabilitation
Kate Weisburd
ABSTRACT: A monumental shift in juvenile justice is underway, inspired
by the wide recognition that incarceration is not the solution to youth crime.
In its place, “electronic monitoring” has gained widespread support as a new
form of judicial control over youth offenders. Supporters herald it as “jail-to-
go”: a cost-efficient alternative to incarceration that allows youth to be home
while furthering rehabilitative and deterrent goals. But despite electronic
monitoring’s intuitive appeal, virtually no empirical evidence suggests its
effectiveness. Instead, given the realities of adolescent development, electronic
monitoring may lead to more harm than good.
This Article is the first to examine the routine, and troubling, use of electronic
monitoring in juvenile courts. After describing the realities of the practice and
its proffered justifications, this Article refutes three key misperceptions about
the practice: (1) that it lowers incarceration rates because it is used only on
youth who would otherwise be detained; (2) that it effectively rehabilitates
youth; and (3) that it is cost-effective.
Yet because of the deference afforded to judges in crafting terms of probation
and pretrial release, the rehabilitative rhetoric of juvenile court, and the
perception of electronic monitoring as non-punitive, electronic monitoring is
subject to virtually no judicial oversight or scrutiny. The result is that the
practice exists in a legal and policy netherworld: wielded and expanded with
almost no limits. This Article concludes by arguing that electronic monitoring
should be categorized as a form of punishment, warranting a new doctrinal
framework that more rigorously evaluates and circumscribes monitoring and
other forms of non-carceral control. Until that happens, electronic monitoring
Director & Clinical Instructor, Youth Defender Clinic, East Bay Community Law Center,
UC Berkeley School of Law. I am grateful for helpful conversations, support, and comments from:
Ty Alper, Easha Anand, Laurel Arroyo, Rosa Bay, Richard Braucher, Tony Cheng, Cameron
Clark, Catherine Crump, Fanna Gamal, Michael Harris, Cory Isaacson, Hannah McElhinny,
Sarafina Midzik, Saira Mohamed, Andrea Roth, Jonathan Simon, Jeff Selbin, Ned Smock, JiSeon
Song, and Tirien Steinbach. I am also grateful to Randy Hertz and the participants of the Clinical
Law Review Writers’ Workshop at NYU Law School: Samantha Buckingham, Eve Hanan, Nicole
Smith, and Michael Pinard. Special and sincere thanks to the editors of the Iowa Law Review.
298 IOWA LAW REVIEW [Vol. 101:297
risks making worse the exact problem it seeks to address, namely, to rehabilitate
youth.
I. INTRODUCTION ............................................................................. 299
II. ELECTRONIC MONITORING AS THE NEW NORMAL ........................ 306
A. THE HISTORY AND USE OF ELECTRONIC MONITORING IN JUVENILE
COURT .................................................................................... 306
B. PROFFERED POLICY JUSTIFICATIONS FOR ELECTRONIC MONITORING
IN JUVENILE COURT ................................................................. 308
C. PROFFERED LEGAL JUSTIFICATIONS FOR ELECTRONIC MONITORING
IN JUVENILE COURT ................................................................. 312
1. The Vast Discretion of Juvenile Courts to Impose
Conditions of Release and Probation .......................... 312
2. The Constitutional Leeway Given to Juvenile Courts
Acting as “Parens Patriae” .............................................. 314
III. ELECTRONIC MONITORING: AN EMPTY PROMISE? ........................ 317
A. ELECTRONIC MONITORING AND INCARCERATION RATES............ 317
B. ELECTRONIC MONITORING AND YOUTH OFFENDERS .................. 323
1. The Adolescent Brain on Electronic Monitoring ....... 324
2. The Rehabilitative and Deterrent Effects of Electronic
Monitoring with Youth .................................................. 327
C. THE ECONOMICS OF ELECTRONIC MONITORING ........................ 332
IV. BEYOND ELECTRONIC MONITORING ............................................. 334
A. REEXAMINING THE USE OF ELECTRONIC MONITORING .............. 334
B. REFRAMING ELECTRONIC MONITORING AS PUNISHMENT ........... 336
C. THE NEED FOR A NEW JUVENILE RIGHTS FRAMEWORK ............... 339
V. CONCLUSION ................................................................................ 340
2015] MONITORING YOUTH 299
I. INTRODUCTION
R.V.’s story is a typical one in American juvenile justice: when he was 16,
he admitted to vandalism and receiving stolen property—a stereo taken from
a local high school. R.V. was placed on probation. One month later, R.V.
violated his probation when he left home overnight. He was sentenced to 22
days of detention, followed by 90 days on an electronic ankle monitor.
Referring to the ankle monitor, the juvenile court judge told him that the
monitoring did him “a favor because it’s going to be a reminder to you that
every moment that you are out . . . you have this device on you that it keeps
track of you.”1
R.V. could be any young person charged with a crime. Although spared
physical detention, youth on electronic monitoring are in jails without walls.
They are often on house arrest, unable to leave even when living space may
be tight and family tensions run high. Unauthorized movement or the failure
to properly charge the device results in youth cycling in and out of juvenile
hall for minor monitoring violations.
Every day, American juvenile court judges order youths like R.V. to wear
electronic ankle monitors—small devices that rely on the Global Positioning
System (“GPS”) to monitor people’s movements. The monitors maintain
records of the devices’ movements “moment-by-moment for days, weeks, or
even years.”2 Every state except New Hampshire has some form of electronic
monitoring for juvenile defendants.3 In Los Angeles County, for example,
1. In re R.V., 89 Cal. Rptr. 3d 702, 706 (Cal. Ct. App. 2009).
2. United States v. Berry, 300 F. Supp. 2d 366, 368 (D. Md. 2004).
3. See ALA. CODE § 12-15-209 (2012); ARIZ. REV. STAT. ANN. § 8-352; ARK. CODE ANN. § 16-
17-133 (2014); CAL. WELF. & INST. CODE § 1960 (West Supp. 2015); COLO. REV. STAT. § 19-2-307
(2014); CONN. GEN. STAT. § 46b-141a (2013); DEL. CODE ANN. tit. 11, § 4121 (2007); FLA. STAT.
§ 985.27 (2013); IDAHO CODE § 20-219 (Supp. 2015); 705 ILL. COMP. STAT. 405/5-7A-120 (2014);
IND. CODE § 31-37-6-6 (West 2008 & Supp. 2014); IOWA ADMIN. CODE r. 441-151.33(232) (2008);
KAN. STAT. ANN. § 38-2330 (Supp. 2014); KY. REV. STAT. ANN. § 600.020 (West Supp. 2014); LA.
STAT. ANN. 46:2600 (2010); 03-201-12 ME. CODE R. § 15.4 VI (LexisNexis 2007); MICH. COMP.
LAWS § 780.798 (2012 & Supp. 2015); MISS. CODE. ANN. § 43-21-605 (Supp. 2009); MONT. CODE
ANN. § 46-18-1001 (2013); NEB. REV. STAT. § 43-288 (2008); N.J. ADMIN. CODE § 13:92-5.4 (Supp.
2011); N.M. CODE R. § 8.14.2.10 (LexisNexis 2009); N.Y. FAM. CT. ACT § 320.5(3)(c) (McKinney
Supp. 2015); N.C. GEN. STAT. ANN. § 7B-2510 (West 2004 & Supp. 2014); N.D. CENT. CODE ANN.
§ 12-67-02 (2012); OHIO REV. CODE ANN. § 2152.19(A)(4)(k) (LexisNexis 2011 & Supp. 2015);
OKLA. STAT. ANN. tit. 57, § 510.9 (2011); OR. REV. STAT. § 169.078 (2013); 37 PA. CODE § 200.3
(2007); 14-1 R.I. CODE R. § 800.0036 (LexisNexis 2011); S.C. CODE ANN. § 23-3-540 (2007 &
Supp. 2014); 6 VA. ADMIN. CODE § 35-150-355 (2011); WASH. REV. CODE § 13.40.020(10) (2014);
W. VA. CODE ANN. § 49-1-206 (LexisNexis Supp. 2015); WIS. STAT. § 302.425 (2013–14); WYO.
STAT. ANN. § 14-6-309 (2015); MINN. R. JUV. DEL. P. 5.02; see also In re Ryan S., 797 A.2d 39, 54
(Md. 2002); Commonwealth v. Hector H., 865 N.E.2d 1178, 1180 (Mass. App. Ct. 2007); In re
J.O., 247 S.W.3d 422, 423–25 (Tex. Ct. App. 2008); ALASKA JUVENILE JUSTICE ADVISORY COMM.,
1998 ANNUAL REPORT 2 (1998), http://dhss.alaska.gov/djj/Documents/ReportsAnd
Publications/AJJAC/AJJAC98AnnualReport.pdf; 21A NANCY A. GARRIS & JACK COCHRAN,
MISSOURI PRACTICE SERIES § 19:20, at 13 (3d ed. 2008); STACY JOLLES, JUVENILE JUSTICE COMMN,
REPORT TO THE VERMONT LEGISLATURE: JUVENILE JUS TICE COMMISSION REPORT 11 (2009),

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