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Francine T. Sherman, Justice for Girls: Are We Making Progress, 59 U.C.L.A. L. Rev. 1584 (2012).

When we think of the carceral state, girls do not immediately come to mind. While the function of the juvenile justice system is ostensibly rehabilitation rather than punishment, and juveniles are detained not incarcerated, such differences are often illusory to those in the system. But even when we think of juveniles, our first image is likely to be of boys, many of whom were once cavalierly referred to as “super predators” whose perceived violence caused a shift to more punitive juvenile justice policies, including routine transfer of youths to adult courts. While we can debate how much of this image is a false characterization, it has drowned out the presence of girls in the system, except to the extent that they, too, are portrayed as violent gang members.

Francine Sherman is one of the few legal scholars who studies the plight of juvenile girls. An earlier article of hers written with Marsha Levick of the Juvenile Law Center, When Individual Differences Demand Equal Treatment: An Equal Rights Approach to the Special Needs of Girls in the Juvenile Justice System, 18 Wis. Women’s L.J. 9 (2003), is still the go-to analysis for supporting the use of gender responsive programming for both girls and adult women offenders. Her current article presents a retrospective of how girls have fared during the last 40 years of evolving juvenile justice policy and includes suggestions about new directions that would benefit this growing but ignored population. Justice For Girls is a significant article that is even better on second reading. Not only does it precisely capture the reasons underlying current policies and make practical recommendations, but it also investigates the difficulties inherent in applying the concept of data-driven research to programming for girls, an issue that has general application for evaluating the much larger universe of adult correctional programs and practices.

Professor Sherman traces juvenile policies aimed at controlling girls’ sexuality, which were first directed at immigrants, and then at girls who were turned into delinquents for being “chronically disobedient.” By the late 1970s “incorrigible” children in need of supervision were overwhelmingly female, with girls comprising 70% of status offenders whose transgressions consisted of acts such as truancy or running away that would not be a crime if committed by an adult. Many girls have continued to run away, some because they are being physically or sexually abused at home or in their placements. Indeed, 75% of runaways are girls, and most have been in multiple placements. Their boots to the ground often lead to contempt rulings, probation violations, and placements in secure detention. Advocates fought hard to prohibit this result when the Juvenile Justice and Delinquency Prevention Act (JJDPA) came up for reauthorization in 2008, but the Act has been interminably stalled by Congressional gridlock. Ironically, the girls we detain for leaving home because they have been subjected to violence often become the women who prosecutors exhort to leave their abusers.

The girls who have caught the media’s current attention are violent gang members, a fact that may help to explain why juvenile girls have increased from 20% to nearly 30% of all juvenile court referrals, which also resulted in an absolute increase in their numbers at the same time the total number of youths entering the juvenile justice system has declined. However, girl perpetrated gang violence is the only noticeable category of female violence not discussed in the article, even though such conduct raises gender issues ranging from gang rape as the price of initiation to the often subservient roles of girls in gang activities including providing sex to gang members and acting as lookouts. Professor Sherman does explain that studies now demonstrate that no fundamental change in female aggression has occurred despite the fact that assaults by girls have skyrocketed. Instead, much of the increase is due to the recharacterization of fights between mothers and daughters, “mean girl” behavior commonly associated with teenage girls, and changed law enforcement practice which makes it more likely that fighting at home will be treated as domestic violence that when reported triggers mandatory arrest. In other words, while referrals to the juvenile justice system for simple assaults by girls have risen dramatically, felony assaults and homicides have not. Unfortunately, such criminalization of acts that would have previously not resulted in delinquency referrals may also produce collateral consequences that are likely to impede the productive transition of girls to adulthood. Sherman would exclude cases of intrafamily violence by minors from domestic violence assaults and batteries and provide better services to youths in chaotic families.

The article provides an excellent summary of recent trends in handling juvenile prostitution, a crime where girls predominate. In the past decade, more attention has been given to treating girls as victims of commercial sexual exploitation. The Trafficking Victims Protection Act (TVPA) defines minors as victims, not criminals, and states have started to pass safe harbor laws which provide alternatives for minors to avoid criminal prosecution. Sherman recommends decriminalization of prostitution for minors, which would significantly reduce the female delinquent population.

She also discusses the important role of gender responsive programming in serving girls despite the fact that it has never been required by federal legislation. Simply “painting it pink is not enough.” Gender responsiveness requires positive efforts to deal with the traumas that many girls have experienced, their developmental characteristics, and their circumstances to meet the goals of promoting safety, healthy relationships and better assessing the strengths and needs of girls. While gender responsive programs promise real advantages to girls, they have not been consistently pursued. Moreover, Sherman explains that information about child development has only recently been integrated into juvenile justice theory, stemming primarily from Supreme Court decisions regarding the death penalty and Life Without Parole (LWOP) for youth less than 18 years old. In 2004, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) recognized that more attention was necessary to provide appropriate services for girls and established a Girls Study Group, and more recently a National Girls Initiative.

Professor Sherman is concerned that implicit bias hinders fairness for girls, since they have typically been treated as an afterthought in juvenile justice policy, where gender neutrality may actually mask gender disparity. She also refers to the intersectionality literature, which reminds us of the intersection of race and gender in decision-making at each point in the juvenile justice system that results in girls of color being detained for minor conduct that would not result in detention for boys or white girls. In fact, one study reported black girls were 12% of the population, but 74% of girls’ detentions. More generally, Sherman suggests that data is not consistently being used to consider disparate impact concerning juvenile girls when compared to boys. The data that does exist concerning girls reveals that 90% of detained girls were not confined for new crimes, but for probation violations, and that a majority of girls were serving probation for misdemeanors or status offenses. This bespeaks a system that is neither serving girls nor the public. In response to this information, one jurisdiction eliminated probation for status offenders and reduced probation for misdemeanants, which drastically cut secure detention for girls. Sherman suggests that data should be collected that identifies gender, racial and ethnic information to better evaluate the fairness of the juvenile justice system. However, progress is slow and the Girls Study Group found that only 11 of an available 35 risk instruments for evaluating girls warranted a “favorable” rating in considering gender responsiveness. Moreover, Sherman critiques a case which rejected New York’s attempt to treat gender as a positive factor because girls have lower recidivism than boys. It has always struck me as disingenuous to ignore that so-called gender neutral juvenile detention and adult incarceration policies are based on a male model, and then complain when female oriented practices and programs are suggested that they are stereotypical or violate equal protection.

The final section of the article cautions that a requirement that programs must be vetted to demonstrate that they satisfy Evidence Based Practice (EBP) can stifle the creation of innovative gender responsive and culturally sensitive programs, since the criteria for assessing the validity of evidence based programs may be overly rigid or unrealistic and grants for small programs do not include money for contemporary evaluation. EBP originated in the medical field, spread like wildfire to other disciplines and is now entrenched in criminal justice analysis, where it requires empirical research supporting positive outcomes for programs and practices. While the goal of EBP is admirable, because it makes no sense to keep recycling programs that do not work, its varying definitions and retrospective application raise a number of issues about whether EBP will cause the baby to be thrown out with the bath water. Her critique of EBP as a means of rejecting girls’ programming should resonate throughout the entire correctional field, and has particular relevance to gender responsive programming of adult as well as juvenile females. For example, most mother-child programs are quite small and experimental. If states won’t fund new programs because they are not evidence based, we will be condemned to refining programs that have not been designed for underserved small groups whether male or female. One size does not fit all in creating effective programs and practices for offenders, and it is an added bonus that Justice for Girls has broader application to adults.

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Cite as: Myrna Raeder, Shining the Light on Girls in the Juvenile Justice System, JOTWELL (November 12, 2012) (reviewing Francine T. Sherman, Justice for Girls: Are We Making Progress, 59 U.C.L.A. L. Rev. 1584 (2012)),