Jurisprudence

The One Thing That Could Help Stop Abuse in Juvenile Prisons

In many states, judges have near-total control over the juvenile justice system. It’s time to break up their monopoly.

Two hands grabbing prison bars within the embellished border of a dollar bill
Photo illustration by Slate. Photos by Niran_pr/iStock/Getty Images Plus and Ruslan Lytvyn/iStock/Getty Images Plus.

Last week, the sole elected juvenile judge in Rutherford County, Tennessee, who built and fed a capacious school-to-prison pipeline, announced that she will retire. For years, Judge Donna Davenport presided over a system with a juvenile incarceration rate 10 times the state average, with Black children bearing the brunt of the carceral cruelty.

While Davenport’s retirement is welcome and overdue (she was facing an impeachment effort at the state legislature), it won’t solve the underlying structural problem with juvenile prisons, in Rutherford County or across the country. The country’s episodic exposures of high-profile juvenile court rot aren’t mostly about individual bad actors. They’re about judicial monopolies—concentrations of power that aren’t supposed to be tolerated in American government.

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A unique feature of many U.S. juvenile court systems is the unitary judiciary, which controls everything from arrest to charging to pretrial detention to trial to post-conviction probation. That concentration of power over the lives and liberty of children allows abuses to spread unchecked. In fact, the most salient juvenile court scandals of the last 20 years have arisen in jurisdictions that give judges autocratic control over entire systems—a wildly inappropriate, if not unconstitutional, merger of judicial and executive functions. The result, far too frequently, is damaging to both children’s lives and public safety, since unnecessarily drawing children into the deep end of the juvenile system is criminogenic, actually increasing the likelihood of future lawbreaking behavior.

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ProPublica, a nonprofit newsroom, first broke the news on Davenport’s abuse of power in October 2021. First elected to the bench in 2000, she came to exercise control over not just the courts but the entire juvenile system. Under her rule, jail became a default response to run-of-the-mill adolescent behavior. Not even misbehavior—in the most outrageous incident cited in the article, officials colluded to invent a fictional offense to justify arresting middle schoolers whose non-crime was failing to intervene in a schoolyard fight.

It’s normal to expect Davenport, as the elected juvenile court judge, to preside over juvenile court, making individual release, adjudication, and sentencing decisions in the cases that come in front of her. That’s what judges are supposed to do, broadly speaking. But Davenport’s sphere of control is much more expansive. She also appoints and supervises the head of the jail and sets jail policies. She appoints and supervises youth services officers, who perform law enforcement functions ranging from reviewing allegations against youth to supervising them on post-conviction probation.

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This should give us pause. In a normal system of government, there are checks and balances, which help prevent the kind of abuse that is rampant in juvenile lockups. Consider the ethical and legal issues raised by having one person preside over every aspect of the justice system for kids. How does a person whose sole putative qualification is legal expertise also become a prison warden? Isn’t it predictable that the official responsible for growing the jail’s budget also wants to fill the jail, which charges the county on a per-head basis for the cost of incarcerating each child? How does that same judge also come to run a law enforcement agency—the county’s juvenile probation department—that recommends whether to arrest, charge, and pursue revocation for children? Do we really want the same person who decides cases in court also deciding which cases come to court in the first place? Can the judge who runs juvenile probation impartially evaluate the testimony of her employees in revocation hearings? What about the separation of powers—the principle that is supposed to prevent executive branch officers from deciding what the law is, and judicial officers from executing their own sentences?

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Davenport may be an extreme instantiation of bad judicial behavior, but Rutherford County is hardly alone in building and tolerating a unitary juvenile judiciary that invites, and too frequently actually experiences, scandal.

Remember Luzerne County, Pennsylvania? There, in the infamous “Kids for Cash” scandal, state court judges took more than $2 million in bribes from the managers of private juvenile prisons. In return, the judges kept the private prisons full. They shut down the local government-run juvenile jail, rode roughshod over due process protections, and sent kids to the private facilities by the busload. The criminal corruption earned the judges federal prison time. But the structural problem remains unresolved.

The judges’ scheme only got off the ground because they were empowered to unilaterally shut down the county’s publicly run juvenile detention facility. The Luzerne judges weren’t just adjudicators; they were also wardens, until they decided to outsource that role for personal profit. And the county’s lead juvenile judge, Mark Ciavarella, also ran the probation department that was responsible for recommending that kids be revoked and detained for minor misbehavior, promoting a free flow of bodies into the for-profit jail.

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Pennsylvania responded to Kids for Cash by putting together a largely thoughtful and far-reaching inquiry into the scandal and the conditions that made it possible. But the resulting report never proposed that judges should stop being wardens or law enforcement officers.

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That same pattern—policy change and perhaps staffing changes, but either no effort or no success in breaking up judicial monopolies—held true in other scandal-laden juvenile jurisdictions over the past decade.

For instance: During President Barack Obama’s second term, the U.S. Department of Justice for the first time used its statutory authority to bring investigations and lawsuits aimed at “eliminat[ing]” patterns and practice of civil rights violations “by officials or employees of any governmental agency with responsibility for the administration of juvenile justice.” The three jurisdictions it targeted—the worst of the worst—were Shelby County, Tennessee (Memphis and its surroundings); St. Louis County, Missouri; and Lauderdale County, Mississippi (centered on the city of Meridian).

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In each jurisdiction, the story was the same: Local judges had seized or been granted broad control over executive branch functions. In Shelby, a single juvenile judge ran the juvenile jail, probation, and even the indigent defense function. In Lauderdale, too, the judges ran the indigent defender, controlling the entity that is supposed to be the biggest in-court check on runaway court authority. In St. Louis, juvenile judges even controlled the prosecutorial function—in other words, they decided whether to sustain accusations brought by their own employees.

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The DOJ’s interventions in each of those jurisdictions brought positive change, but none of them solved the problem of judicial autocracy and the erosion or elimination of checks and balances. When the DOJ pulled out—in the face of massive judicial resistance that the DOJ’s due process monitor characterized as “persistent non-compliance” with efforts at structural reform—the Shelby County juvenile court still controlled a big chunk of juvenile public defense. Ditto in Lauderdale County. And in St. Louis County, prosecutors still work for the judges.

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The consolidation phenomenon is widespread. Juvenile detention is run by judges in jurisdictions from Indiana to Arizona to Connecticut. Juvenile probation is a court function in Chicago, Seattle, and Houston.

Court monopolies don’t seem to be limited to progressive or to conservative jurisdictions, or to big or small or rural or urban jurisdictions, or to systems that are highly localized, or to systems with statewide scale. But the monopolies are, to a significant extent, unique to the juvenile legal system. In Connecticut, where the judiciary controls the juvenile prisons, the adult prisons are run by the state’s Department of Correction. In Cincinnati, where the judges run juvenile detention, the sheriff runs adult pretrial detention. In Atlanta, the Fulton County Juvenile Court runs juvenile probation. The adult equivalent, though, is run by the state’s Department of Community Supervision.

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There are compelling doctrinal and developmental reasons to treat kids differently in the legal system. But why should—and, legally, how can—that extend to throwing out our commitment to checks and balances and the separation of powers?

As far as I can tell, only one scholar in the last 20 years has spoken to accumulations of judicial power over entire systems. To Daniel Hatcher, whose research focuses on the government’s machinery for processing poor people into cash, building monopolies is about minimizing costs and maximizing revenue, not for judges’ personal use but for their court empires. Hatcher convincingly argues that the consolidation makes financial sense for the judges. It creates economies of scale, rationalizes costs, opens up new revenue streams, and gives judges leverage in budget negotiations with the legislature.

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But there’s no reason to assume (and Hatcher doesn’t argue) that every judge who embraces court overreach is empire-building. It’s likely that many judges think they should run detention centers or probation offices merely because they’re well intentioned and smart. The fox doesn’t necessarily know that he makes a poor guardian of the henhouse, and he certainly doesn’t think there’s anything wrong with being a fox. At the very least, many judges probably think that they’re the least bad choice. Sometimes, the options for juvenile detention operators may seem limited to the judges or the criminal sheriff. What are you going to do, let the wolf guard the henhouse?

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Also, in many jurisdictions it’s likely that the construction of judicial monopolies isn’t driven by judges—at least, not at the outset. Instead, consolidation may stem from a legislative urge toward efficiency married to a guess about effectiveness. Think about it from a well-meaning but underinformed legislator’s perspective—and recognize that legislators can’t help but be underinformed on this: Despite a well-intentioned and mostly helpful push toward evidence-informed juvenile practices, there’s almost no research on the best structural options for juvenile courts and the systems that surround them.

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But there are real-world alternatives worth examination. There’s no shortage of better models that protect children by imposing checks, balances, and constraints on the power of judges and executives alike. In Massachusetts, for instance, the state Department of Youth Services operates a statewide network of juvenile detention centers, combining expertise in youth development with scaled-up efficiency. Utah has a similar statewide detention center network, again run by a (non-corrections-focused) state agency, the Department of Human Services’ Division of Juvenile Justice Services. In Multnomah County, Oregon—home to Portland—a separate Juvenile Services Division provides probation services for youth from within the county executive’s Department of Community Justice.

These jurisdictions, of course, continue to have juvenile judges. But the judges are busy judging, not supervising jails or probation offices or schools or prosecutions.

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