Academic journal article
By Leitch, David B.
Journal of Correctional Education , Vol. 64, No. 2
Without question, servicing the needs of incarcerated youth can be challenging. Not only is the average juvenile a complex individual with multiple needs but the facility itself is a composite of trained professionals that must work together to produce a juvenile able to successfully reenter society. Policies enacted to achieve this goal cannot be created within a vacuum. A thorough understanding of the relationship between program policy and legal concerns cannot be overlooked. In this article, a review of pertinent statutes and case law impacting the delivery of special education services within the juvenile correctional system is provided. The analysis then segues into the educational results that emerge when those requirements are not met.
Historical Context of Juvenile Law
Juvenile justice policy has long attempted to establish equilibrium between rehabilitation and punishment. The balance has been difficult to attain and maintain. More often than not, the emphasis between the two philosophies has been more of a pendulum swing than a steady course (Fagan, 2000). Jenson and Howard (1998) describe the cycle of policy changes as beginning in 1825 with an emphasis on separation between youth and adult in the justice system. That separation blurred through the 1800s until the establishment of the first juvenile court in 1899 which paved the way for an independent jurisprudence for juveniles (Krueger, 2008). In the latter half of the 20th century the pattern repeated itself as the public perception of increased juvenile crime, fueled by the Columbine shootings and other high profile youth atrocities, swayed politicians to adopt harsher sentencing guidelines for youthful offenders (Zaviek, 2005).
Concurrent with policy change came statutory regulations aimed at guaranteeing legal rights to juveniles immersed in the criminal system. At the federal level, the Congressional Digest (1954) identified the Surrender Statute of 1932 as the first federal statute controlling the disposition of juvenile delinquents. The Juvenile Delinquent Act of 1938 subsequently reduced the jurisdictional age of a juvenile from 21 to 18 years of age (Kreager, 2008).
A string of additional statutes were subsequently passed by Congress to cope with the burgeoning juvenile crime rate. The Federal Youth Corrections Act of 1950 began the development of procedures tailored to the needs of young offenders. Among its provisions was the establishment of classification centers that would assess the mental and physical condition of the juveniles, as well as, "...his personal traits, his capabilities, pertinent circumstances of his school, family life, and ... any mental or physical defect... contributing to his delinquency" (p. 299). This clause helped lay the foundation for future legislation targeting areas of developmental concerns unique to incarcerated juveniles. One such piece of legislation was the Juvenile Delinquency Prevention and Control Act of 1968 (revised in 1974 as the Juvenile Justice and Delinquency Prevention Act), a congressional effort toward improving services to juvenile delinquents, including a directive to remove juveniles from adult prisons.
State efforts at establishing and regulating juvenile delinquency procedures have varied widely since 1899, including recent statutory efforts to clarify the uniqueness of juvenile proceedings (Zaviek, 2005). For example, the Code of Virginia, §16.1 et seq. was amended in 2010 requiring the retention of most accused youth in a juvenile facility even if their case has been bound over to the adult system. In Colorado, a bill is currently pending that that would offer judges a diversion option called restorative justice. If implemented, the dispositional alternative would allow the state to dismiss charges if the offending youth successful completed the diversion program (National Juvenile Defender Center, 2011).
In 2001, the passage of the No Child Left Behind Act (NCLB) brought significant changes to education law. …