Friday, January 21, 2022

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D. Refocusing Judicial Discretion on Rehabilitation

Although these types of programs are likely to be effective alternatives to zero tolerance and detention, juvenile-court personnel and judges will continue to exercise considerable discretion over the dispositions students receive. Accordingly, *1276 judges and intake personnel should work to channel discretion toward imposing less severe sanctions that focus on rehabilitating youth. In its juvenile delinquency guidelines, the National Council of Juvenile and Family Court Judges states that "[j]uvenile delinquency court judges should ensure their systems divert cases to alternative systems whenever possible and appropriate."   To that end, a juvenile court "must manage its intake and divert less serious cases to community resources."   Judges and juvenile-court staff should also "visit the services and facilities they use" and review "outcome data and research that shows the services the juvenile delinquency court judge orders produce positive behavior change in delinquent youth and reduce recidivism."   These steps will better inform court officials' decisions and help them design informal and formal dispositions that focus on rehabilitating youth.

Legislatures can also slow the effects of zero-tolerance policies by limiting judges' abilities to impose harsh sanctions in cases of minor disciplinary infractions. In April 2013, the Maryland legislature passed a bill prohibiting out-of-home placements for minor offenses that are likely to occur in schools, including marijuana possession, disorderly conduct, and trespass.   The law only permits out-of-home placement for a minor offense if the court "makes a written finding, including the specific facts supporting the finding, that an out-of-home placement is necessary for the welfare of the child or in the interest of public safety."   In protecting this discretionary power of juvenile-court judges, the bill continues to allow students to be confined for minor disciplinary infractions in schools. Despite some shortcomings, however, this law seems like a promising step toward ensuring that students will not be funneled into juvenile detention for minor disciplinary infractions.  

The Maryland law provides a rough model of how states can encourage juvenile courts to find rehabilitative solutions for students who are charged with disciplinary infractions. By requiring judges to make reasoned decisions and support their decisions with written findings of fact, the law is likely to discourage judges from utilizing out-of-home placements when youth have committed only minor offenses. Hopefully, this will help juvenile courts refocus their discretionary power on rehabilitating court-involved youth rather than *1277 incarcerating them. Other states should enact similar laws restraining judges' discretion to send students to out-of-home placements for minor offenses that are likely to occur in schools. Such action will help minimize the effects of the school-to-prison pipeline.

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