Protecting Youth in the Justice System from Self-Incrimination

Lourdes Rosado is a Senior Attorney for Juvenile Law Center. Below, she introduces a useful guide to help your community screen teens for behavioral health and drug problems while protecting their rights in and out of juvenile court. Juvenile Law Center is the oldest multi-issue public interest law firm in the country dedicated to advancing the rights and well-being of children in jeopardy.—Ed. 
In the last decade, states and localities have worked hard to identify and treat the large percentage of youth in the juvenile justice system who have mental health and substance abuse disorders.

 
The goal is laudable, but there are problems. Screening and assessment can cause a “net-widening effect” where youth enter and are kept in the justice system longer because the system can more quickly obtain behavioral services for them. Another risk is that juvenile court actors use results from instruments to make critical decisions about the youth when those instruments are not designed for that purpose. Also, sensitive mental health and substance abuse assessment and treatment information often finds its way into a youth’s court or probation files; files that are generally not subject to the same legal strictures against re-disclosure as records held by, for example, a mental health care provider or drug and alcohol treatment program.
 
Screening, assessment and treatment initiatives also pose a significant challenge to defense attorneys. Youth charged with a delinquent act have a right against self-incrimination under both federal and state laws. But screening, assessment, and treatment can all elicit self-incriminating information about a variety of illegal activities including drug use, assaultive behaviors and weapons possession. Without appropriate legal safeguards, this information can be used against the youth in court to find them guilty of an offense or enhance their punishment.
 
For this reason, Juvenile Law Center did an exhaustive review of current law in all 50 states and the District of Columbia and learned that the vast majority of states currently do not have comprehensive protections that prevent youth’s statements made in the course of screening, assessment, or treatment from being used against them.
 
We recommend that all states enact statutes or court rules stating that self-incriminating statements or information gathered from youth who are screened, assessed, or treated as part of their juvenile court case cannot be used against them in any delinquency or criminal case.
 
To assist with this effort, Juvenile Law Center has compiled a monograph for policymakers titled, “Protecting Youth from Self-Incrimination.” In it, you can find:

• our state-by-state review of current law;
• relevant statutes and court rules that policymakers can use as models to enact similar protections in their own states;
• our own model statutory language; and,
• for those jurisdictions where the statutory changes have not been implemented yet, a sample Memorandum of Understanding for relevant stakeholders in the juvenile court process, to protect information elicited from mental health and alcohol and drug assessments of teens in the justice system.

See also Ms. Rosado's recorded webinar on the topic of protecting youth in the juvenile justice system from self-incrimination here. -- Ed.