The Senate must pass the updated HEROES Act to protect justice-involved youth

In the few days left before senators head back to their states, they should immediately pass the updated HEROES Act, not only because families need it to survive, but also because it could spare children engaged in the juvenile justice system damage to their health, education and mental wellbeing.

Over 4,300 cases of COVID-19 have been identified among youth and staff in juvenile facilities. While youth are working on bettering themselves and learning how to navigate negative peer pressure and choose positive alternative behaviors, this invisible attack threatens their health. Placing youth in detention (which occurs before a youth has been found guilty of a delinquent act) and confining them (which happens after a youth is found guilty) before the pandemic already made them far less likely to attain a high school diploma or gain meaningful employment.

Detaining and confining youth during the COVID-19 pandemic has exacerbated health risks for kids who were already disadvantaged. Emerging research that links the virus with neurological side-effects in children suggests that the future functioning of youth in juvenile facilities is also at stake.

Even more disturbing is that some jurisdictions and states, including Ohio and Louisiana, have forced youth into what is essentially solitary confinement to quarantine. Experts have shunned these conditions even for adults due to the psychological trauma that isolation causes. According to the Juvenile Law Center, solitary confinement of youth can disrupt their normal development, cause life-long psychological damage, or trigger psychosis, self-harm, or suicide. Congress can’t sit by while youth in the care of our juvenile justice facilities are being exposed to these serious risks.

Initially, some states attempted to spare justice-involved youth by creating alternatives to detention and other congregate treatment. A few forbade detention altogether, with narrow exceptions. Between February and May, the number of youth admitted to detention centers dropped by 50 percent, suggesting that in addition to state leaders, courts also avoided detaining youth and instead were releasing these children to caregivers to be monitored remotely by court officers or electronic devices.

Officials also sought to decrease the total population of confined youth by speeding up their exit from juvenile facilities. Some youth who were slated to conclude their time in treatment facilities were discharged with remote services. Other youths detained before their trial were expeditiously released to their parents or caregivers who promised to return the child to court when the next court date was issued. These and other efforts initially increased the departure rate from youth facilities, but by spring, releases had slowed, with the rate of release down 22 percent between March and May. By June, the number of kids in detention was back on the rise. 

Part of the rise can be explained by schools’ misuse of the juvenile justice system to deal with behavioral health and academic issues. For instance, for a 15-year-old girl known as Grace, it all started because she failed to do her online homework. Even though Grace’s school hadn’t provided her with the special education services she needed, Grace is the one who was punished with separation from her mother and 78 days in high-risk environments (i.e., a juvenile detention center and a treatment facility) during a pandemic. Isaiah – a Black seventh-grader with attention-deficit/hyperactivity disordered who played with a toy gun during virtual class—had the police called to his home on the third day of school. His mother, Dani Elliot, reported that Isaiah was traumatized: “He was in tears when the police came,” Elliott said. “He was very scared. He said: ‘Mommy, I had butterflies in my stomach. I was scared and thought I was going to jail.’” 

To avoid such senseless endangerment of our kids, we must begin using trauma-informed, culturally competent responses to virtual school disciplinary and behavioral issues. The use of law enforcement and the juvenile justice system for these issues will only grow the number of youth in detention. Additionally, research shows that this practice will disproportionately harm children of color, especially Hispanic and Native American youth, who have been stuck in juvenile detention centers during the pandemic. If we stop using police for school behavior issues, we will promote equity for students with special education needs and youth of color because behavior problems and violations of school policies by these students are disproportionately met with arrests and calls to law enforcement.

Now more than ever, we have to find ways to address behavioral issues that do not detain more youth or contribute to the disproportionate number of students of color (especially Black girls, who are the fastest-growing segment of the juvenile justice population) in juvenile detention centers and juvenile treatment facilities. A failure to change our practices will harm all youth and place youth of color at a disproportionate risk of serious, long-lasting harm of the coronavirus.

Federal leadership is needed to bolster state efforts to reduce the number of youths who become court-involved and minimize the risk to court-involved youth during the pandemic. The updated HEROES Act contains common-sense approaches to protecting the health of justice-involved youth and the Senate should pass it before leaving town. Among the bill’s strongest provisions are: releasing young people who have allegedly committed delinquent acts (upon a promise to return when requested); requiring detention to be in the least restrictive, safest environment; funding for a grant program to release vulnerable and low-risk populations; and $75 million of emergency funding for the Juvenile Justice and Delinquency Prevention Act to help provide items for safety and health.

As soon as the next Congress is in session, it should take up the task of passing bills like the Counseling Not Criminalization In Schools Act, which proposes the creation of a $2.5 billion grant program that enables school districts to “replace law enforcement officers with adequately trained personnel like counselors, social workers, nurses, mental health practitioners and trauma-informed personnel.” This will reduce the number of youth who become court-involved through school disciplinary issues. The next Congress should also approve a bill like the COVID-19 in Corrections Data Transparency Act, a bicameral bill that would require data collection and dissemination that will allow public health officials and the public to monitor the spread of the coronavirus in juvenile and correctional facilities.

Many teens wind-up in juvenile detention and treatment facilities for non-violent behaviors. While Congress needs to ensure that this unfair consequence is corrected, we also need to ensure that our juvenile detention and treatment facilities minimize the risk of serious harm to our children’s psychological and physical health. Congress can’t delay.

Aubrey Edwards-Luce is a senior director for Child Welfare and Juvenile Justice at First Focus on Children.