When Individual Differences Demand Equal Treatment: An Equal Rights Approach to the Special Needs of Girls in the Juvenile Justice System

Abstract

In 1998, jurisdiction "X," like many jurisdictions at that time, developed a juvenile drug court as an alternative to formal court processing for juveniles charged with nonviolent, property or drug related offenses. Until the summer of 2002 the program was only available to boys, though the drug court manual refers to eligible juveniles in gender neutral terms such as "youth," "client," and "candidate." Drug court was an alternative to detention for boys who were required to complete an intensive program of job training, GED preparation, and counseling with parents. Participants could avoid detention unless they violated probation or failed in the program. No similar program alternatives to detention were available for girls. The juvenile court offered no justification for excluding girls for four years when they opened the court to girls in the summer of 2002. As of December 2002, there were four girls in the drug court program and 110 boys.

To accommodate the increase in girls in their justice system, jurisdiction "Y" added a twenty bed girls' unit to their secure boys' delinquency program. They did this by taking over space which had been set aside for administrative purposes. Staffing patterns were established in the existing male unit, as was scheduling of sick calls, outdoor exercise, programming and use of the gymnasium. Because the program was only adding twenty youths, the program administrators determined no additional staff were needed. The existing programming and schedules were continued. This decision has plainly disadvantaged the girls in the program. They do not get a daily sick call, which is needed due to the increased medical complaints of girls and the way in which those complaints affect their attitudes and functioning. The failure to add staff does not allow girls the level of staff attention they require and also results in girls being confined to their unit throughout the weekend because they need to be supervised apart from the boys. Girls also receive less gross motor recreation than the boys, who are seen as "needing more exercise." When the girls are in the yard, they are with boys who monopolize the basketball court. Finally, the school program is designed around the boys' educational level, which is below ninth grade. This makes them ineligible for GED or college preparation. The girls, many of whom are runaways, have higher academic achievement, but they are held back by the boys' academic limitations. Finally, with no new staff or programming, staff are untrained in gender-responsive approaches. Consequently, girls' mental health, trauma and family issues are not addressed.

Keywords: juvenile justice, delinquency program, jurisdiction X, jurisdiction Y, mental health, federal Equal Protection Clause, state Equal Rights Amendments (ERAs), Title IX