ADDRESSING THE NEEDS OF YOUTH WITH DISABILITIES IN THE JUVENILE JUSTICE SYSTEM:
THE CURRENT STATUS OF EVIDENCE-BASED RESEARCH

May 1, 2003

National Council on Disability
1331 F Street, NW, Suite 850
Washington, DC 20004
202-272-2004 Voice
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The views contained in this report do not necessarily represent those of the Administration as this and all NCD reports are not subject to the A-19 Executive Branch review process.

Letter of Transmittal

May 1, 2003

The President
The White House
Washington, DC 20500

Dear Mr. President:

On behalf of the National Council on Disability (NCD), I am submitting a research study entitled Addressing the Needs of Youth with Disabilities in the Juvenile Justice System: The Status of Evidence-Based Research. Through this research study, NCD evaluates the emerging status of key policies and programs that affect children and youth with disabilities who have often been overlooked by service and research programs. The issues of delinquency prevention and juvenile justice as they relate to children and youth with disabilities are relatively new for policymakers, yet they present some of the most complex and challenging problems that policymakers must grapple with and resolve.

Over the past several years, NCD has recognized that children and youth with disabilities have increasingly become overrepresented in the juvenile justice system. A significant proportion of youth in the juvenile justice system have education-related disabilities and are eligible for special education and related services under the Individuals with Disabilities Education Act (IDEA). Factors associated with the disproportionate representation of youth with disabilities in juvenile corrections are complex--but the available information suggests that school failure, poorly developed social skills, and inadequate school and community supports greatly increase the risks for arrest and incarceration. NCD believes, therefore, that delinquency prevention is a critical feature of any service or support system that is used to address the needs of all youth, especially youth with disabilities and special education needs.

Without a clear understanding of what works, communities can become awash in a maze of programs and services that claim effectiveness in deterring delinquency yet have no factual information or evidence supporting their effectiveness. NCD believes that your Administration can use the findings and recommendations from this research study to help shape the scope and direction of future federal initiatives designed to tackle delinquency prevention and juvenile justice. Such initiatives, for example, fall under the purview of the Department of Education and the Department of Justice.

To that end, NCD stands ready to work with our sister agencies and other stakeholders inside and outside the government to use the information and analyses from this research study to devise strategies for delinquency prevention and juvenile justice that work.

Sincerely,

Lex Frieden
Chairperson

(The same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the Speaker of the U.S. House of Representatives.)

National Council on Disability Members and Staff

Members

Lex Frieden, Chairperson, Texas
Patricia Pound, First Vice Chairperson, Texas
Glenn Anderson, Ph.D., Second Vice Chairperson, Arkansas

Milton Aponte, Florida
Robert R. Davila, Ph.D., New York
Barbara Gillcrist, New Mexico
Graham Hill, Virginia
Joel I. Kahn, Ohio
Young Woo Kang, Ph.D., Indiana
Kathleen Martinez, California
Carol Hughes Novak, Florida
Marco Rodriguez, California
David Wenzel, Pennsylvania
Linda Wetters, Ohio
Kate Pew Wolters, Michigan

Staff

Ethel D. Briggs, Executive Director
Jeffrey T. Rosen, General Counsel and Director of Policy
Mark S. Quigley, Director of Communications
Allan W. Holland, Chief Financial Officer
Julie Carroll, Attorney Advisor
Joan M. Durocher, Attorney Advisor
Martin Gould, Ed.D., Senior Research Specialist
Gerrie Drake Hawkins, Ph.D., Program Specialist
Pamela O'Leary, Interpreter
Brenda Bratton, Executive Assistant
Stacey S. Brown, Staff Assistant
Carla Nelson, Office Automation Clerk

Acknowledgments

The National Council on Disability expresses its appreciation to Daniel P. Mears, Ph.D., senior research associate, Justice Policy Center; Laudan Aron, research associate; and Jenny Bernstein, research assistant, Labor and Social Policy Center, for drafting this report, with assistance from Ruth M. White, research associate, Justice Policy Center, for the Disability and Juvenile Justice project at the Urban Institute.

CONTENTS

Executive Summary

1. Introduction

2. Background

3. Data and Methodology

4. Current Laws and Philosophical Frameworks

5. Disability, Delinquency, and Juvenile Justice

6. Risk and Protective Factors Associated with Delinquency

7. Program and Policy Trends

8. Promising Practices and Criteria/Measures of Effectiveness

9. Implementation of Disability Law and Programs: Barriers and Facilitators

10. Recommendations for "Next Steps"

11. Conclusion

12. References

Appendix A. Figures and Tables

Appendix B. Internet Resources on Youth with Disabilities and Juvenile Justice

Appendix C. Interview Protocol

Appendix D. Illustrations and Case Studies

Appendix E. Mission of the National Council on Disability

EXECUTIVE SUMMARY

Overview

This report summarizes and assesses the state of knowledge about children and youth with disabilities who are at risk of delinquency and involvement in, or who have already entered, the juvenile justice system. By highlighting what is known about addressing delinquency and the diverse needs of this population, it aims to inform policy discussions among policymakers, practitioners, and researchers. The report's specific objectives are to examine

• current laws and philosophical frameworks affecting children and youth with disabilities who are at risk of delinquency or are involved in the juvenile justice system;
• the relationship between disability, delinquency, and involvement in the juvenile justice system;
• the factors associated with disability and delinquency;
• current and anticipated delinquency- and disability-related programming targeting children and youth with disabilities who may enter or who are in the juvenile justice system;
• the effectiveness of prevention, intervention and treatment, and management strategies for reducing delinquency and addressing disability-related needs among this population of children and youth;
• barriers and facilitators to implementing effective strategies for helping these children and youth; and
• recommended "next steps" for increasing the scope and quality of knowledge and practice for reducing delinquency among and addressing the disability-related needs of at-risk children and youth with disabilities.

To achieve these objectives, the report provides a systematic, multidimensional review of existing research and includes insights provided by service providers, administrators, policymakers, advocates, and researchers. The report examines a range of interrelated issues to establish a broad-based foundation--a portrait of the "forest"--for understanding what is and is not known about children and youth with disabilities who are at risk of delinquency or juvenile justice involvement or are already involved in the justice system.

The term "delinquency" here refers to violations of law by individuals legally defined as "juveniles." Typically, state laws use specific age ranges (e.g., 10 to 17) as the sole criterion for determining whether an individual is a "juvenile" and thus subject to processing in the juvenile rather than adult justice system. Violations include status offenses (i.e., acts, such as running away from home or truancy, that only youth, by dint of their "status" as juveniles, can commit) and nonstatus offenses (i.e., acts, such as robbery and theft, that would be crimes if committed by adults). For the purposes of this report, a youth is delinquent if he or she has committed a status or nonstatus offense, whether or not the offense results in a referral to court. Youth who are "involved in the juvenile justice system" can include individuals in short-term detention, probation, long-term secure custody, residential treatment facilities, and aftercare/parole.

This report focuses on several groups of children and youth with disabilities: (1) those who have never committed a delinquent act but are at risk of doing so; (2) those who are engaged in delinquency but have not yet become involved in the juvenile justice system; and (3) those who are or have been involved in the juvenile justice system. All three groups by definition are at risk of delinquency and, by extension, involvement (or further involvement) in the juvenile justice system. In each group, the presence of a disability may or may not contribute to delinquency or a greater likelihood of juvenile justice system involvement (e.g., school referrals to juvenile courts); research suggests that both are possibilities. Regardless, federal law mandates that the civil rights of children and youth with disabilities be protected, including receiving special education and other disability-related services. This report therefore examines not only the issue of preventing or reducing delinquency among these different groups but also the provision of required services. The primary focus is on the juvenile justice system. However, schools also are considered because of their potential role in preventing delinquency and referrals to juvenile courts, as well as facilitating transitions from custodial facilities back into communities.

Background

There is a tremendous gap in empirically based knowledge about children and youth with disabilities, especially those who are either at risk of delinquency or involved in the juvenile justice system. This gap covers a wide spectrum of largely unanswered questions involving distinct sets of policy issues. These issues range from the potentially conflicting philosophies underlying existing laws to what is known about effective prevention, intervention, and delinquency management strategies and efforts to ensure that the rights and needs of children and youth with disabilities are addressed. The objectives of this report cover distinct sets of policy-relevant questions that parallel areas in which significant gaps currently exist.

The report asks, for example, to what extent the philosophies of disability law and juvenile justice policies are contradictory or complementary. How, if at all, are disabilities linked to delinquency, and how are disabilities linked to juvenile justice system involvement, irrespective of any possible causal relationship between disabilities and delinquency? Are the causes of delinquency the same for youth with disabilities and those without disabilities?

From the standpoint of policies for reducing the number of youth with disabilities in the juvenile justice system, what exactly is the need for such policies? For example, what is the prevalence of youth with disabilities throughout all stages of the juvenile justice system? If youth with disabilities are overrepresented in the justice system, is this in any way linked to school-based practices and programming? How might the racial/ethnic dimensions of delinquency and juvenile justice processing contribute to a greater involvement of youth with disabilities in the juvenile justice system?

From a related policy standpoint, what exactly is the needs/services gap? What, for example, are the current or anticipated types and levels of programming for youth with disabilities who are at risk of delinquency or who are involved in the juvenile justice system, and how do these levels differ from the demand for them? Regardless of any gap, what are effective prevention, intervention and treatment, and delinquency management strategies for this population? Are federal laws effective in facilitating the identification of and provision of services to them? More generally, what are the barriers to and facilitators of implementing effective strategies for addressing their needs, and what are the next steps that should be taken to improve knowledge and practice?

The review for this report suggests partial answers to some of these questions. It also reveals that few systematic overviews of these diverse questions have been conducted. Most studies have investigated delimited parts of each question. The present report thus fills an important void by highlighting the wide range of questions and issues that policymakers, practitioners, and others may want to consider as they create and evaluate new programs and policies or pursue specific research agendas.

Findings

The results of the review and interviews are summarized along seven dimensions, collectively addressing the goal and objectives of this report. The overarching finding was that considerably more empirical research is needed. The report documented, for example, that there is relatively little quality research on almost every dimension that was examined, from the prevalence of disabilities at various stages of the juvenile justice system to the levels and impacts of federal efforts to enforce compliance with disability law. However, it also identified many practices and policies that schools, communities, and the juvenile justice system can undertake that may have a significant impact on preventing and reducing delinquency among children and youth with disabilities, and that may help ensure that their disability-related needs are addressed.

The major findings of the National Council on Disability's (NCD) research are as follows:

• Despite calls for greater prevention and early intervention initiatives in schools and the juvenile justice system, there is little evidence that past, current, or proposed laws will suffice to create this change or to overcome the many conflicting perspectives about youth with disabilities or young offenders.
• Any challenges to implementing disability law in schools are magnified in the juvenile justice system, where there is little understanding of disabilities or disability law and where few resources exist to adequately address the needs of youth with disabilities.
• Most sources suggest that many schools are not providing legally required services to youth with disabilities. The needs/services gap appears to be even greater in the juvenile justice system, where the primary focus is on sanctioning youth for their delinquent behavior, not on providing services. Systematic, empirical documentation of these gaps does not currently exist or is not readily available.
• There are many opportunities for improving both research and practice. However, the existence of such opportunities by themselves is insufficient to result in a change in the levels and quality of programming and enforcement of juvenile justice and disability law.
• Some research and anecdotal evidence suggests that as schools have become more restrictive and punitive (e.g., zero tolerance approaches to misbehavior), they have increasingly pushed greater numbers of youth with disabilities into the juvenile justice system. Many observers speculate that the failure of many schools to fully and consistently implement federal law, especially the Individuals with Disabilities Education Act, has contributed to this process.
• Few local, state, or national organizations maintain consistent or reliable records of the types and levels of services or funding of programs that focus on youth with disabilities who are at risk of entering or involved in the juvenile justice system.
• Despite calls for significant prevention and early intervention efforts in schools and the juvenile justice system, there is little evidence that such efforts are widespread. The absence is notable because research suggests that such programming may be the only effective method for reducing the involvement of youth with disabilities in the juvenile justice system, especially in the "deeper end" of the system (e.g., correctional facilities).
• Racial/ethnic minorities, including Native American youth, are overrepresented at most stages of the juvenile justice system and among the population of youth with disabilities. Yet, there is little evidence that juvenile justice systems are providing appropriate disability-related programming for this population, or that they have developed culturally appropriate approaches for these youth.
• A range of increasingly popular intervention strategies and trends exists in schools and the juvenile justice system. Although some explicitly focus on youth with disabilities, many more diffusely focus on youth with behavioral problems. The more popular disability and delinquency intervention strategies and trends include positive behavioral support treatment; alternative education; diversion from the juvenile justice system; restorative justice; specialized youth courts; and greater intra- and interagency information-sharing.
• Researchers have not systematically identified and assessed interventions or practices that focus primarily on youth with disabilities who are at risk of delinquency or are involved in the juvenile justice system. As a result, there remains little scientific basis for recommending specific programs for these youth.

The major recommendations NCD makes are to

• Identify a range of strategies to enforce and promote compliance with federal disability law as it relates to children and youth with disabilities who are at-risk of delinquency. The strategies should include those that increase effective programming for youth with disabilities in schools and in juvenile justice settings.
• Increase funding and/or resources to schools and the juvenile justice system to ensure that youth with disabilities receive appropriate services.
• Designate a single federal agency whose sole focus is to ensure that the rights and needs of youth with disabilities entering or in the juvenile justice system are addressed. The Coordinating Council on Juvenile Justice and Delinquency Prevention and the President's Task Force on Disadvantaged Youth may be well-suited to provide the direction and leadership to address this gap by helping to create a national commission focused explicitly on youth with disabilities at risk of entering or already in the juvenile justice system.
• Conduct research that focuses on establishing the true prevalence of youth with disabilities of different types among at-risk populations in schools and across all stages of the juvenile justice system; the needs/services gap, including compliance with disability law; the causes of overrepresentation, where it exists, of youth with disabilities in the juvenile justice system, especially correctional facilities; and effective systems-level and program-level approaches, including federal laws, for addressing the needs of these youth, including particular attention to the types of programming most effective for youth from diverse racial/ethnic and cultural backgrounds.
• Undertake a comprehensive assessment to determine what programs and policies are most effective in schools, communities, and the juvenile justice system. At the same time, ensure that there is a balanced approach to funding diverse programs and policies, coupled with evaluation research studies of their effectiveness. Such an approach will ensure that a more definitive body of knowledge can develop to determine "what works" and for whom.

Conclusions

There is a tremendous gap in empirically based knowledge about children and youth with disabilities, especially those who are either at risk of delinquency or involved in the juvenile justice system. This gap covers a wide spectrum of largely unanswered questions involving distinct sets of policy issues. These issues range from the potentially conflicting philosophies underlying existing laws to what is known about effective prevention, intervention, and delinquency management strategies and efforts to ensure that the rights and needs of children and youth with disabilities are addressed.

The bulk of research on the children and youth of focus in this report--those with disabilities who are at risk of delinquency or involved in the juvenile justice system--provides a relatively weak foundation for drawing sound empirical generalizations. For example, one of the only relatively well-studied issues relating to this population is the prevalence of disabilities among incarcerated youth. NCD's research suggests that disabilities, especially learning disabilities and serious emotional disorders, are far more common among incarcerated youth than among youth in schools. Yet this research, too, suffers from inconsistent definitions and measurements. In addition, it provides a weak foundation for making generalizations about youth in other parts of the juvenile justice system, including probation, parole, and nonsecure residential treatment facilities. These problems are even more endemic in the other areas covered in this report.

This report has many implications for research and policies focused on children and youth with disabilities who are at risk of delinquency or justice system involvement or who are already involved in the juvenile justice system. The challenges are numerous, but in almost all instances the need for more and better research is clear. Which areas should be prioritized must ultimately be determined by policymakers and practitioners. Clearly, a more complete and accurate portrait of the kinds of disabilities present among youth referred to the juvenile justice system is needed. At the same time, research is needed on the extent to which youth with disabilities are having their needs addressed at all stages of the juvenile justice system. Research is needed as well on effective programming. Which areas require greater attention can be determined only by the priorities of specific stakeholders (e.g., schools, probation departments, correctional facilities, communities). However, advances in knowledge in any of these areas likely will contribute to a greater ability to decrease delinquency among children and youth with disabilities, to ensure that the needs of these children and youth are effectively addressed, and to enhance positive physical, mental, educational, and other life outcomes among this population.

1. Introduction

This report summarizes and assesses the state of knowledge about children and youth with disabilities who are at risk of delinquency and involvement in, or who have already entered, the juvenile justice system. By highlighting what is known about addressing delinquency and the diverse needs of this population, it aims to inform policy discussions among policymakers, practitioners, and researchers. The report's specific objectives are to examine

• current laws and philosophical frameworks affecting children and youth with disabilities who are at risk of delinquency or are involved in the juvenile justice system;
• the relationship between disability, delinquency, and involvement in the juvenile justice system;
• the factors associated with disability and delinquency;
• current and anticipated delinquency- and disability-related programming targeting children and youth with disabilities who may enter or who are in the juvenile justice system;
• the effectiveness of prevention, intervention and treatment, and management strategies for reducing delinquency and addressing disability-related needs among this population of children and youth;
• barriers and facilitators to implementing effective strategies for helping these children and youth; and
• recommended "next steps" for increasing the scope and quality of knowledge and practice for reducing delinquency among and addressing the disability-related needs of at-risk children and youth with disabilities.

To achieve these objectives, the report provides a systematic, multidimensional review of existing research and includes insights provided by service providers, administrators, policymakers, advocates, and researchers. The report examines a range of interrelated issues to establish a broad-based foundation--a portrait of the "forest"--for understanding what is and is not known about children and youth with disabilities who are at risk of delinquency or juvenile justice involvement or are already involved in the justice system.

Because there is no universally accepted definition, and thus measurement, of disability among children and youth, the report relies on the different definitions used in existing research. Federal legislative acts, professional organizations, social service and health agencies, schools, and various programs employ different terms, define the same terms differently, and use different types of information and approaches to diagnose and classify disabilities.

The term "delinquency" here refers to violations of law by individuals legally defined as "juveniles." Typically, state laws use specific age ranges (e.g., 10 to 17) as the sole criterion for determining whether an individual is a "juvenile" and thus subject to processing in the juvenile rather than adult justice system. Violations include status offenses (i.e., acts, such as running away from home or truancy, that only youth, by dint of their "status" as juveniles, can commit) and nonstatus offenses (i.e., acts, such as robbery and theft, that would be crimes if committed by adults). For the purposes of this report, a youth is delinquent if he or she has committed a status or nonstatus offense, whether or not the offense results in a referral to court. Youth who are "involved in the juvenile justice system" can include individuals in short-term detention, probation, long-term secure custody, residential treatment facilities, and aftercare/parole.

This report focuses on several groups of children and youth with disabilities: (1) those who have never committed a delinquent act but are at risk of doing so; (2) those who are engaged in delinquency but have not yet become involved in the juvenile justice system; and (3) those who are or have been involved in the juvenile justice system. All three groups by definition are at risk of delinquency and, by extension, involvement (or further involvement) in the juvenile justice system. In each group, the presence of a disability may or may not contribute to delinquency or a greater likelihood of juvenile justice system involvement (e.g., school referrals to juvenile courts); research suggests that both are possibilities. Regardless, federal law mandates that the civil rights of children and youth with disabilities be protected, including receiving special education and other disability-related services. This report therefore examines not only the issue of preventing or reducing delinquency among these different groups but also the provision of required services. The primary focus is on the juvenile justice system. However, schools also are considered because of their potential role in preventing delinquency and referrals to juvenile courts, as well as facilitating transitions from custodial facilities back into communities.

Definitional and measurement issues are critical to virtually all of the objectives of this report. They affect tasks such as identifying the prevalence of disabilities among youth at risk of delinquency or involved in the juvenile justice system. Consistent definitions also are necessary to help determine the most effective interventions and policies for youth with specific types of disabilities at specific stages of juvenile justice. They help generate basic knowledge about whether disabilities are causally related to delinquency or to processing in the juvenile justice system. They are, more generally, critical for assessing the impacts of virtually any initiative aimed at reducing delinquency among youth with disabilities or ensuring that their needs and federally mandated rights are addressed. It should be emphasized that the lack of consistent definitions and measurements of many key terms--disabilities, delinquency, juvenile justice, programs or interventions, policies, laws--makes summaries or comparisons of existing research difficult and in some cases impossible.

The vast bulk of research on the children and youth of focus in this report--those with disabilities who are at risk of delinquency or involved in the juvenile justice systems--provides a relatively weak foundation for drawing sound empirical generalizations. For example, one of the only relatively well-studied issues relating to this population is the prevalence of disabilities among incarcerated youth. This research suggests that disabilities, especially learning disabilities and serious emotional disorders, are far more common among incarcerated youth than among youth in schools. Yet this research, too, suffers from inconsistent definitions and measurements, a problem that permeates much of the extant literature. In addition, it provides a weak foundation for making generalizations about youth in other parts of the juvenile justice system, including probation, parole, and nonsecure residential treatment facilities. These problems are even more endemic in the other areas covered in this report.

The report begins by providing the rationale for examining disability, delinquency, and juvenile justice (Chapter 2), and then briefly discusses the data and methodologies that were used (Chapter 3). The remainder of the report summarizes information about each of the seven objectives. Chapter 4, for example, describes the current laws and philosophical frameworks affecting children and youth with disabilities in schools and the juvenile justice system. Chapter 5 reviews what is known about the relationship between disability, delinquency, and the involvement of children and youth with disabilities in the juvenile justice system. It also examines the racial/ethnic dimensions of this involvement and possible links to both delinquency and disabilities. Chapter 6 briefly outlines some of the factors known to be associated with delinquency and disabilities. Chapter 7 discusses current and anticipated programming initiatives for the prevention, intervention and treatment, and management of delinquency among and the provision of services to children and youth with disabilities. This chapter includes a discussion of programming for Native American youth because of their unique context and experiences. Chapter 8 summarizes the research literature and views of individuals interviewed for this project about the effectiveness of prevention, intervention and treatment, and management strategies to reduce delinquency among children and youth with disabilities and to address their disability-related needs. This chapter also discusses measures of effectiveness. Chapter 9 identifies the lessons learned about barriers to and facilitators of implementing effective strategies focused on children and youth with disabilities. Chapter 10 outlines a series of recommendations, or "next steps," for increasing the scope and quality of knowledge and practice for preventing or reducing delinquency and addressing the needs of children and youth with disabilities who are at risk of delinquency or justice system involvement or who are already involved in the juvenile justice system. Chapter 11 provides a brief synopsis of the report and its main findings.

The appendices provide additional information. Appendix A includes the figures and tables referenced throughout the report. Appendix B provides a list of Web sites that provide information on a range of issues directly or indirectly bearing on youth with disabilities and their involvement in the juvenile justice system. Appendix C supplies the interview protocol. And Appendix D consists of illustrations of programs cited throughout the report, as well as several case studies that describe specific programs in more detail. Appendix E contains the Mission of the National Council on Disability.

2. Background

There is a tremendous gap in empirically based knowledge about children and youth with disabilities, especially those who are either at risk of delinquency or involved in the juvenile justice system. This gap covers a wide spectrum of largely unanswered questions involving distinct sets of policy issues. These issues range from the potentially conflicting philosophies underlying existing laws to what is known about effective prevention, intervention, and delinquency management strategies and efforts to ensure that the rights and needs of children and youth with disabilities are addressed. The objectives of this report cover distinct sets of policy-relevant questions that parallel areas in which significant gaps currently exist.

The report asks, for example, to what extent the philosophies of disability law and juvenile justice policies are contradictory or complementary. How, if at all, are disabilities linked to delinquency? As the report will discuss, some studies suggest that youth with disabilities are overrepresented in juvenile correctional facilities (Murphy 1986; Brier 1989; Winters 1997; Robinson and Rapport 1999; National Center on Education, Disability and Juvenile Justice 2001; U.S. Department of Education 2001). But is this information generalizable to other parts of the juvenile justice system? Does it reveal anything about a causal relationship between disabilities and delinquency, or possibly a pattern of differential referral and processing of youth with disabilities? For example, these youth may be incarcerated because of misunderstandings about their behaviors and how the behaviors are linked to disabilities.

From the standpoint of policies for reducing the number of youth with disabilities in the juvenile justice system, what exactly is the need for such policies? For example, what is the prevalence of youth with disabilities throughout all stages of the juvenile justice system? If youth with disabilities are overrepresented in the justice system, is this in any way linked to school-based practices and programming? How might the racial/ethnic dimensions of delinquency and juvenile justice processing contribute to a greater involvement of youth with disabilities in the juvenile justice system?

From a related policy standpoint, what exactly is the needs/services gap? What, for example, are the current or anticipated types and levels of programming for youth with disabilities who are at risk of delinquency or who are involved in the juvenile justice system, and how do these levels differ from the amount of demand for them? Research suggests that youth with disabilities and youth who are delinquent have a range of specialized needs (Loeber and Farrington 2001). It can be expected therefore that even if the proportion of justice-involved youth with disabilities is small, there will be a need for appropriate services.

Regardless of any gap, what are effective prevention, intervention and treatment, and delinquency management strategies for this population? Are federal laws effective in facilitating the identification of and provision of services to them? More generally, what are the barriers to and facilitators of implementing effective strategies for addressing their needs, and what are the next steps that should be taken to improve knowledge and practice? We know, for example, that historically the juvenile justice system has focused on the "best interests" of youth more so than their punishment (Feld 1999; Butts and Mitchell 2000). But most juvenile justice systems increasingly have focused on punishment, and few have the resources to provide treatment and rehabilitative services to all who need them. What are the impacts of these changes on how the needs of youth with disabilities are addressed, including those legally required by law (Burrell and Warboys 2000)?

The review for this report suggests partial answers to some of these questions. It also reveals that few systematic overviews of these diverse questions have been conducted. Most studies have investigated delimited parts of each question. The present report thus fills an important void by highlighting the wide range of questions and issues that policymakers, practitioners, and others may want to consider as they create and evaluate new programs and policies or pursue specific research agendas.

3. Data and Methodology

Three sources of information were used for this report: a review of literature, interviews with knowledgeable stakeholders, and case studies of particular programs. It should be emphasized that this report uncovered no new facts, but rather summarized what existing research and some observers of disability law and juvenile justice say about each of the seven objectives that are the focus of this report. The different approaches are briefly described below.

3.1 Literature Review

This report is based primarily on a review of a range of materials, with emphasis placed on those that summarized empirical research on specific topics. The materials included

• journal articles, newsletters, and other materials published by various government and private agencies, research centers, and professional associations;
• federal, national, and state/local resources, especially U.S. General Accounting Office and U.S. Department of Education reports;
• materials available on the Internet (e.g., the Children with Disabilities Web site established by the Coordinating Council on Juvenile Justice and Delinquency Prevention); and
• consultations with knowledgeable service providers, agencies, policymakers, advocates, and researchers about disability/delinquency issues.

Many of these sources provided meta-analyses or other types of systematic reviews of empirical research. Others drew primarily on anecdotal accounts about particular issues. Such information provides a limited foundation for making generalizations, but it nonetheless can provide important insights about potential patterns and trends, especially in areas where little empirical research exists. Throughout the report, every effort is made to distinguish between well-established facts supported by empirical research and those that are not.

The scope of the report dictated taking a broad-based approach rather than providing an in-depth analysis of any one issue or identifying and analyzing information from specific jurisdictions. It thus focused on materials that were readily available; consequently, some sources that may speak directly to some of the issues in this report may have been missed. In addition, many of the questions addressed in this report might be better addressed through a series of in-depth studies that involve the collection and analysis of data from diverse sources. Although the review identified few such readily available data sources, they may well exist and provide a more solid empirical foundation for assessing the questions reviewed in this report. (Appendix B provides a list of Web-based resources that were used in this review and that provide links to a wealth of information on children and youth with disabilities.)

It should be emphasized that the traditional focus of the juvenile justice system has been to serve the "best interests" of youth. To this end, even in the recent era of "get tough" policies, many juvenile justice systems retain a broad-based orientation aimed not only at preventing and reducing delinquency but also at addressing the diverse needs of at-risk youth and young offenders. Therefore, in the examination of the state of programming for youth with disabilities in the juvenile justice system, the report reviewed delinquency intervention programs and policies, as well as disability-related programming efforts that are required by law. This approach was indicated as well because relatively little empirical information is available on levels and types of programming in juvenile justice systems.

The review of literature identified research and practices that focus on both "children" and "youth." Within juvenile justice, the distinction between children and youth is a legal one, with the definition of a "juvenile" varying from state to state. Generally, most states label youth who are between ages 10 and 17 as "juveniles." Developmental and criminological research generally adopt nonlegal criteria for determining whether an individual is a "child" or "youth." However, these criteria vary tremendously, as do the definitions employed for defining disabilities. For this reason, it should be kept in mind that specific literatures employ different criteria for defining these terms and that not all programs or policies apply to all children and youth.

A similar caution applies to use of the term "juvenile justice." As used here, the term can encompass court intake, diversion and community-based programs, probation, secure and nonsecure residential placement, and parole. It also can encompass local, community-based, state, national, and tribal juvenile justice interventions, where "interventions" refer to prevention, intervention and treatment, and delinquency management strategies.

3.2 Interviews

As part of the investigation into what is known about disability and juvenile justice, interviews were conducted with a range of stakeholders. The goal of these interviews was primarily to identify general sets of issues and insights that might not be readily obtained from the review of literature. They were not meant to be necessarily generalizable or to represent all relevant viewpoints or populations. For example, the researchers did not interview families or children with disabilities. These and other perspectives may well have provided additional and important insights, but time and resources precluded conducting additional interviews. Every attempt was made, however, to draw on published resources that included interviews and analyses of diverse populations of persons with disabilities.

In all, 10 formal interviews and approximately 10 additional informal interviews were conducted by researchers at the Urban Institute. In each instance, the questions focused on a range of issues bearing on children and youth with disabilities in the juvenile justice system or at risk of entering it. The researchers inquired about issues specific to the knowledge base of each individual (e.g., prevalence of disabilities among youth incarcerated in juvenile correctional facilities, effective prevention programming, special needs of youth with disabilities, trends in laws bearing on children and youth with disabilities and their families). The specific questions that guided both the formal and informal interviews are provided in Appendix C.

The researchers promised to maintain the anonymity of all respondents to encourage respondents to be as candid as possible in their assessments. The interviews were not taped and no names were recorded. In most instances, two researchers were present and took notes that they later transcribed and compared concerning the general points raised during the interview. Although not necessarily representative of all views on the issue of youth with disabilities engaging in or at risk of delinquency, the individuals with whom the researchers spoke nonetheless provided a diverse range of perspectives. Some, for example, were highly supportive of federal disability law, while others were critical of it. Summaries of the key themes identified by the respondents are provided in Appendix A.

3.3 Case Studies

In addition to the literature review and the interviews, this report includes case studies of selected community-based strategies for addressing delinquency among children and youth with disabilities (see Appendix D). The case studies were selected on the advice of practitioners and researchers, the availability of sufficient documentation to allow the identified approaches to be replicated in other sites, and whether the program or policy currently is reported to be a best or promising practice. Taken as a whole, the case studies capture distinct approaches to help youth with disabilities before or after they enter the juvenile justice system. They do not represent all possible approaches, nor are they necessarily representative "best practices." More comprehensive and detailed discussions of delinquency or disability programs and policies, as well as initiatives focused explicitly on youth with disabilities who are in or may enter the juvenile justice system, can be found in sources cited throughout the report (see, e.g., Howell 1995; Coordinating Council on Juvenile Justice and Delinquency Prevention 1996; Sherman et al. 1997; Finn et al. 2001; Larson and Turner 2002).

In addition to the examination of relevant and available reports and articles, some of the interviews were used to provide further depth to these exploratory, program-specific investigations. The goal was to identify potential factors that may inform national policy concerning barriers to and facilitation of implementation of federal law and best or promising practices.

It should be emphasized that few sources document the full spectrum of services, programs, and policies serving youth with disabilities at risk of delinquency or involved in the juvenile justice system. It is possible that such information is compiled in some jurisdictions. However, this review found no sources of information that provided this type of comprehensive, systematic documentation. One reasonable conclusion, therefore, is that there is a need for such documentation to determine the kinds and levels of practice, juxtaposed against the kinds and amount of demand, to determine what particular steps should be taken to improve services for youth with disabilities in or at risk of entering the juvenile justice system.

4. Current Laws and Philosophical Frameworks

This chapter examines historical and recent trends in laws and philosophical frameworks bearing on children and youth with disabilities at risk of delinquency or involved in the juvenile justice system. It begins by reviewing the leading trends in disability law and then briefly describes the juvenile justice system and its traditional and current orientations toward youth.

4.1 Disability Law

There has been a considerable shift in disability law and public policy over the past three decades, and many of the changes have affected children and youth with disabilities and their families. Prior to the 1970s there were no major federal laws specifically protecting the civil and constitutional rights of Americans with disabilities. Most public policies affecting people with disabilities were directed at veterans with disabilities returning home from two world wars. The civil rights movement of the 1960s, however, led to a shift in the "disability rights movement," from one primarily focused on social and therapeutic services to one focused on political and civil rights. A full treatment of the history of the disability rights can be found in Longmore and Umansky (2000).

Section 504 of the Rehabilitation Act of 1973

The passage of the Rehabilitation Act of 1973 marked a critical turning point in the "disability rights movement." Section 504 of this Act banned recipients of federal funds from discriminating against people with disabilities. This was the first law stating that the exclusion or segregation of an individual with a disability constituted discrimination. It contributed to a change in commonly held assumptions that problems faced by people with disabilities--such as unemployment, underemployment, and low educational attainment--were the inevitable result of limitations stemming from the disability itself rather than societal barriers or prejudices.

Section 504 was important in part because for the first time people with disabilities were viewed as a distinct class of people, a minority group. It was premised on the recognition that while diverse in their physical and mental abilities, people with disabilities faced discrimination in employment, education, and access to society. This "class status" contributed to subsequent developments in disability rights. Section 504 regulations, issued in 1977, detailed specific anti-discrimination protections--these regulations went beyond removing policy barriers to mandating affirmative conduct to remove architectural and communications barriers and provide accommodations. Many of the regulations formed the basis of the Americans with Disabilities Act (ADA), enacted in July 1990.

Section 504 applies to schools since virtually all public school systems receive federal funds. It entitles children to a public education comparable to that provided to children who do not have disabilities. The law defines disability broadly to include any person who (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment. Major life activities include walking, seeing, hearing, speaking, breathing, learning, working, caring for oneself, and performing manual tasks.

Individuals with Disabilities Education Act

Background of IDEA

Although Section 504 helped establish greater access to an education among children with disabilities by removing intentional and unintentional barriers, a more proactive law protecting the educational rights of children with disabilities was passed a few years later in 1975. The Individuals with Disabilities Education Act (IDEA)--formerly called P.L. 94-142, or the Education for all Handicapped Children Act of 1975--established the right of children with disabilities to attend public schools, to receive services designed to meet their needs free of charge, and to learn in regular education classrooms alongside nondisabled children to the greatest extent possible.

These core substantive rights at the heart of IDEA are also known as a free, appropriate, public education (FAPE) in the least restrictive environment. Part B of IDEA authorizes federal grants to states to cover some of the costs of special education services. The law was significantly revised in 1997, when Congress added amendments that described how a child's individualized education program (IEP) had to be developed and reviewed, placed much greater emphasis on transitional planning for youth with disabilities, and also addressed how children and youth with disabilities could be disciplined by schools.

Unlike Section 504, IDEA does not cover all children with disabilities. Rather, the law has a two-prong eligibility standard--children must have at least one of a list of specific impairments, and they must need special education and related services by reason of such impairment(s). The specific impairments/disabilities contained in the law are

• mental retardation
• hearing impairments, including deafness
• speech or language impairments
• visual impairments, including blindness
• serious emotional disturbance (SED)
• orthopedic impairments
• autism
• traumatic brain injury
• other health impairments
• specific learning disabilities
• deaf-blindness
• multiple disabilities requiring special education and related services

Once a child is determined to be eligible for special education services, a team that includes the child's parents and representatives of the public education system develops an IEP or individualized family service plan that includes all the services and supports necessary to meet each child's unique needs.

IDEA, as well as the efforts of parents and educators and greater societal awareness about disability issues, has led to significant advances in the education of children and youth with disabilities (American Youth Policy Forum and Center for Education Policy 2002). Progress has been made, for example, in achieving the goal of access to public education for students with disabilities. There is now a more developed infrastructure in place for educating children with disabilities. Disabilities among American children are being detected and identified at much younger ages, and the overwhelming majority (approximately 96 percent) of children with disabilities attend regular schools with nondisabled children rather than schools in state institutions or separate facilities. Early intervention services for infants and toddlers have increased. And there has been significant progress in other areas, such as inclusion in regular classrooms, participation in standardized testing, rates of high school graduation and college enrollment, employment rates, numbers of special education teachers, and levels of parental involvement. All of these changes are generally viewed by experts as constituting critical improvements in the education and lives of children with disabilities and their families.

Problems with Implementing IDEA

Despite these accomplishments, it appears evident that IDEA in practice is falling far short of what legislators first envisioned. In the past two years, several major studies assessing the nation's special education system in general, and IDEA in particular, have been released (National Council on Disability 2000; Finn et al. 2001; President's Commission on Excellence in Special Education 2002; American Youth Policy Forum and Center for Education Policy 2002). These sources uniformly point to a significant disjuncture between what IDEA requires and what actually has been implemented in schools across the country. Many schools do not, for example, conduct the functional behavioral assessments (FBA) required under IDEA or, for youth who need them, develop the positive behavioral interventions and supports (PBIS) required by law.

The failure to comply with many of the mandates associated with IDEA stands of course as a policy concern itself. However, the implications of noncompliance with IDEA raise related policy concerns. For example, a recent report by the National Council on Disability (NCD; 2002b), The Well Being of Our Nation: An Inter-Generational Vision of Effective Mental Health Services and Supports, documents the consequences of noncompliance for youth with mental disabilities, including greater risks of teen suicide and school dropout. Similarly, noncompliance may contribute to avoidable behaviors that result in delinquency or an increased likelihood of referral to the juvenile justice system.

Although most studies acknowledge the many significant accomplishments of IDEA, they all conclude that the system is not functioning as it should. Many of these studies identify a marked needs/services gap. They also suggest the need to move beyond "access" as an ultimate goal and to focus on improving educational quality and outcomes. Although there have been advances, special education students still lag behind their nondisabled peers in educational achievements, are held to lower expectations, are less likely to take the full academic curriculum in high school, and are more likely to drop out of school.

A major study of special education sponsored by the Public Policy Institute and the Thomas B. Fordham Foundation--which examined many different aspects of special education and involved policy analysts from many different fields--concluded recently that federal special education policy faces profound problems (Finn et al. 2001).

A recent study conducted by the National Council on Disability (2000) on federal monitoring and enforcement of IDEA found that every state was out of compliance with IDEA requirements and that in some states the lack of compliance has persisted for many years. The study reviewed 25 years of monitoring reports from the U.S. Department of Education and concluded "that federal efforts to enforce the law over several Administrations have been inconsistent, ineffective, and lacking any real teeth" (2000:5).

In their study, the American Youth Policy Forum and Center for Education Policy (2002) called for a rethinking of IDEA, one that takes account of the past history of bureaucratic and legal obstacles to successful implementation of it:

It is time to rethink both the requirements and funding levels of IDEA. The procedural requirements of the IDEA have been instrumental in ensuring access for students with disabilities. But these requirements place considerable paperwork and time demands on teachers and administrators. And when legal conflicts between parents and schools become very contentious, this can overshadow educational goals and be counterproductive for children. Completing the work ahead, such as raising achievement and improving outcomes for students with disabilities, may be better accomplished with a different balance of policy approaches. (p. 5)

Most recently, the President's Commission on Excellence in Special Education was charged with "collecting information and studying issues related to federal, state, and local special education programs with the goal of recommending policies for improving the educational performance of students with disabilities" (White House 2001:1). The Commission's report found that special education is "a system in need of fundamental rethinking, a shift in priorities, and a new commitment to individual needs" (President's Commission on Excellence in Special Education 2002: 2), and then proceeded to detail specific suggestions for reform.

Competing Views of How to Improve Implementation of IDEA

Although there is some agreement that the special education system is not working as it should or could, there are differing opinions as to why this is so and what needs to be done to address current problems. Policymakers, advocates, and researchers have called for improvements in special education financing and for better accountability systems (Finn et al. 2001; American Youth Policy Forum and Center for Education Policy 2002; President's Commission on Excellence in Special Education 2002).

Funding of special education remains an important and controversial issue, especially since the costs of special education have risen dramatically. During the 1999-2000 school year, the nation spent about $50 billion on special education and related services (or about $8,080 per special education student). If one adds the costs of regular education services to these costs, then total spending on students with disabilities amounted to $77.3 billion (or $12,474 per student). This figure represents over 21 percent of all 1999-2000 elementary and secondary educational costs in the United States (Chambers et al. 2002).

Funding issues may be affecting decisions to serve, place, or refer children with disabilities, and current funding mechanisms may be creating incentives that undermine or hinder the goals of ensuring that children with disabilities receive a high-quality education. Calls for fundamental reforms of the special education system have been sharply criticized by families of children with disabilities, disability rights groups, and other advocates and supporters of IDEA (Consortium for Citizens with Disabilities 2002). They believe that special education is well-conceived and properly structured, but has been poorly implemented and enforced. Many observers also feel that successful implementation of IDEA requires that the Federal Government "fully fund" IDEA. Full funding of IDEA is the level of funding referred to in the original 1975 legislation--40 percent of the costs associated with serving children with disabilities over and above the costs of a regular public education (educating a special education student costs $12,474 per pupil, about twice as much as a regular education student). The reality is that federal funding of IDEA has never approached 40 percent and is now at about 10.2 percent, or 12 percent if one includes special education-related expenditures that schools recover through Medicaid (Chambers et al. 2002).

Some advocates argue that funding is not the real issue. Rather, they suggest, the critical issue is a lack of commitment to children with disabilities and their families (Martin 2001). Advocates emphasize that IDEA is first and foremost civil rights legislation, and thus that it must be enforced irrespective of funding. From this perspective, "full funding" is a political slogan created by state education agencies and school district boards as an excuse not to comply with the rights of students with disabilities and as a way of diverting parental advocacy efforts away from compliance and towards fund raising for schools (Martin 2001).

It remains unclear, based on the existing empirical evidence, what the effects would be of enhanced efforts to enforce IDEA or to supply additional federal funding. When every state is found to be out of compliance with a program that has been in place for 25 years, a legitimate question arises as to whether IDEA, in its current form, is enforceable or whether it has the political support necessary to provide adequate enforcement.

IDEA constitutes a blend of civil rights law and state grant programs, a duality that has had important implications for how the law has been perceived, implemented, and enforced. Part B of the law, "Assistance for Education of All Children with Disabilities," outlines how the Federal Government will provide grants to states to assist them in making available a FAPE and carry out other purposes of the Act.

The dual nature and purpose of the law has contributed to the creation of different stakeholders, with differing goals, at the grassroots level. The major stakeholders of civil rights laws tend to be the individuals who are protected by the law--in this case, children and youth with disabilities and their families and supporters. The major stakeholders of grant programs are the recipients of those grants, such as state and local educational agencies, school boards, their staffs, and other professionals who are supported financially by the grants. Sometimes the perspectives and interests of these two groups are the same, while at other times they are not.

This dual nature appears to have affected how the law is overseen, administered, and enforced at the federal level. The Federal Government is both a partner with state educational agencies in administering the Part B grants program and an enforcer of IDEA as a civil rights law, roles which are not always complementary (National Council on Disability 2000).

Any successful special education policy will likely require the resolution of the many issues--legal, political, and moral (Kelman 2001)--arising from the dual civil rights and federal grants program nature of IDEA. These issues are even more pronounced when one considers implementation of IDEA in the juvenile justice system, which has its own tensions (e.g., balancing rehabilitation and punishment) and is even more ill-equipped than many schools to address the needs of youth with disabilities.

Title II of the Americans with Disabilities Act

In addition to IDEA, the ADA provides individuals with disabilities protections similar to those provided on the basis of race, color, sex, national origin, age, and religion. The law guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications. To be covered by the ADA, one must have a disability or have a relationship or association with an individual with a disability. Like Section 504, the ADA defines an individual with a disability as someone who has a physical or mental impairment that substantially limits a major life activity, someone who has a history or record of such an impairment, or someone who is perceived by others as having such an impairment. The ADA does not provide a list of specific impairments it covers.

Title II of the ADA includes all activities of state and local governments regardless of the size of the government entity or whether or not it receives federal funding. (Section 504 of the Rehabilitation Act is limited to recipients of federal funding.) Title II requires that state and local governments give people with disabilities an equal opportunity to benefit from all of their programs, services, and activities, including public education.

Civil Rights of Institutionalized Persons Act

Another piece of legislation that has been used to protect the rights of children and youth with disabilities is the Civil Rights of Institutionalized Persons Act (CRIPA) (42 U.S.C. § 1997). Enacted in 1980, this law authorizes the U.S. Attorney General to investigate conditions of confinement in state or locally operated jails, prisons, pretrial detention centers, juvenile correctional facilities, institutions for people with psychiatric or developmental disabilities, and publicly operated nursing homes. The purpose of the law is to allow the Attorney General to uncover and correct widespread deficiencies that seriously jeopardize the health and safety of residents of institutions. The Attorney General cannot investigate isolated incidents or represent individual institutionalized persons under CRIPA. Nor does CRIPA create any new substantive rights. It simply confers power on the Civil Rights Division of the Department of Justice to take legal action against state or local governments for failing to meet previously established constitutional or statutory rights of people institutionalized in publicly operated facilities (Puritz and Scali 1998). For incarcerated juveniles, these actions have relied primarily on three sources of federal rights: the Constitution, ADA, and IDEA (Rosenbaum 1999).

CRIPA appears to have been an underused enforcement tool, one that has been little discussed in policy and law literatures: By mid-1999, the Department of Justice had investigated fewer than 100 juvenile detention and corrections facilities in 16 states and territories (Rosenbaum 1999). However, many others have been initiated more recently under the Bush Administration (Leone 2002). To initiate an investigation under CRIPA, the Civil Rights Division must often rely on information it receives from other agencies, including other divisions within the Department of Justice, the federal Departments of Education and Health and Human Services, the Civil Rights Commission, and external sources, including parents and advocates.

Trends in Disability Law Affecting Children and Youth with Disabilities Who Are at Risk of Entering or Already Are Involved in the Juvenile Justice System

Disability law can have significant impacts on children who are at risk of becoming involved in or are already in the juvenile justice system. Without sound disability policies--especially those governing the education of children with disabilities--many children may be referred to juvenile courts, perhaps unnecessarily. For example, when children's disabilities go undetected or are poorly managed, they may experience school failure or be subject to disciplinary procedures that ultimately lead them into the juvenile justice system. This may be especially true of children with learning disabilities or behavioral/emotional disorders. Disability law and programs may also have the unintended effect of creating incentives for pushing children "downstream" out of regular schools and into the juvenile justice system. Examples of these include fiscal pressures embedded within IDEA, high-stakes testing and accountability standards, and zero tolerance disciplinary policies within schools.

The 1997 Amendments to IDEA included several provisions specifically addressing the discipline of children with disabilities. Some of the provisions incorporated into law various existing court decisions and federal policies. For example, under the new law:

(1) schools could remove a child for up to ten school days at a time for any violation of school rules as long as there was not a pattern of removals; (2) a child with a disability could not be long-term suspended or expelled from school for behavior that was a manifestation of his or her disability; and (3) services must continue for children with disabilities who are suspended or expelled from school. (U.S. Department of Education 1999:1)

Other amendments required schools to assess a child's problem behavior and consider positive behavioral interventions to address the behavior. They also required schools to determine if the behavior was a manifestation of the child's disability. Many of these policies were designed to protect children with disabilities while ensuring reasonable standards of conduct in schools. Despite concerns about the misuse of discipline policies, a study by the U.S. Government Accounting Office (2001), one of the few conducted on this issue, found that "special education students who are involved in serious misconduct are being disciplined in generally a similar manner to regular education students" (p. 8) and that "IDEA plays a limited role in affecting schools' ability to properly discipline students" (p. 9).

Disability law is also relevant for children involved in the juvenile justice system because they are entitled by law to have their disability-related needs met. Congress has stated that the rights and protections secured by IDEA do not end when children are detained or incarcerated. Alternative education programs, detention and correction facilities, and other juvenile justice programs are all legally mandated to provide IEPs to youth who need them.

There is, however, little evidence to suggest that the juvenile justice system is complying with IDEA or that it can comply with IDEA. The challenges associated with implementing IDEA may be even greater in juvenile justice settings, including detention, probation, parole, and local residential treatment facilities than they are in regular educational settings. In addition, successfully implementing IDEA within a long-term juvenile corrections facility requires a sound infrastructure of basic regular educational services, but this infrastructure frequently is lacking (Leone 2002).

None of the major studies examining IDEA have focused on children with disabilities who may enter or are already involved in the juvenile justice system. However, the President's Commission on Excellence in Special Education (2002) acknowledged concern about these children. It encouraged

state agencies with authority over the direction and expenditure of federal and state funds under IDEA and the No Child Left Behind Act to develop interagency agreements with juvenile corrections agencies, foster care, and other relevant authorities to ensure continued alternative educational services (including the full continuum of services as provided under IDEA). (p. 39)

The Commission further noted that "leaving no child behind" also means leaving no children with disabilities behind, including students at high risk of academic difficulties because of emotional disturbance and those children with disabilities in foster care or juvenile justice facilities, from the early elementary grades through high school. We must raise the bar for these children with disabilities to reach their potential. Making least restrictive environment a focus on results-based services will move services for children with disabilities in the most integrated setting possible. (p. 42)

Improving the lives of children with disabilities who are involved in the juvenile justice system need not depend on IDEA alone. In addition to the increased use of CRIPA, it appears that the ADA may also become a tool in improving educational opportunities for incarcerated youth. For example, a class action lawsuit recently was filed against the California Youth Authority (the nation's largest youth offender system) charging that its conditions were inhumane, unconstitutional, and in violation of the ADA. Among the allegations raised in the suit are that mental health care is virtually nonexistent and inmates with disabilities do not receive appropriate accommodations, including special education (Hatfield and Delgado 2002). Many young inmates have significant disabilities ranging from dyslexia to deafness to schizophrenia. In some instances, their needs are not being met, and in still others the youth reportedly are harmed by the conditions of confinement (Hatfield and Delgado 2002).

4.2 Juvenile Justice

Origins of Juvenile Justice

The first U.S. juvenile court was established in 1899 in Illinois. By 1904, 11 states established juvenile courts; by 1927, all but two states (Maine and Wyoming) had them; and by 1950, every state had enacted legislation creating juvenile courts These courts differed from criminal courts in emphasizing rehabilitation and providing for the "best interests" of youth who violated the law. This emphasis derived from English common law, which viewed children as less culpable than adults and as less developed morally and emotionally. Unlike criminal courts, juvenile court authority flowed from civil law, providing it with jurisdiction over cases involving criminal and noncriminal behavior.

The founders of the juvenile court employed the philosophy of parens patriae (Latin for "the state as parent") to guide and justify a new approach to managing youth who violated the law. Under parens patriae, government had a responsibility to act on the behalf of neglected, abused, or misbehaving children whose parents were not present or could not control or provide for them. The same philosophy had been employed by England's Chancery Courts to manage the property left to orphans of wealthy families (Polier 1989) and by 19th century American courts to place unruly youth in "houses of refuge" (Bernard 1992).

Several factors led to the creation of these new courts. One was that youth were believed to be morally and emotionally less developed than adults, and therefore required a different type of intervention. Another was a dissatisfaction among the public and court practitioners with the outcomes of cases in which young offenders were processed in conventional adult courts. Immature or especially youthful offenders might be viewed sympathetically by judges or jurors, leading to dismissals or acquittals. At the same time, turn-of-the-century social science increasingly suggested that methods existed for "correcting" various social problems, including crime (Platt 1977; Schlossman 1977; Feld 1999).

The informal, rehabilitative focus of juvenile court proceedings emphasized case-by-case individualized decisions in the "best interests" of youth, or that was the hope. Over time, however, concern arose about procedural deficiencies stemming from this informal decisionmaking approach. Observers emphasized how this informality could lead to abuses, such as secure confinement of youth who committed nonserious offenses (Empey et al. 1999). Others noted that the practice of juvenile court operations rarely reflected the ideals set by the court's founders (Feld 1999).

By the 1960s, these concerns contributed to a series of Supreme Court decisions with far-reaching impacts on juvenile courts. Collectively, these decisions resulted in the constitutional "domestication" of the juvenile court. Observing that juveniles were subject to the worst abuses of the criminal court system with none of its protections, the Court rejected the parens patriae philosophy and in its place emphasized due process protections afforded adults. Juveniles now were subject to the higher standard of evidence enjoyed by adults ("a reasonable doubt") and had the right to receive notice of the charges against them, to cross-examine witnesses, and to receive the assistance of defense counsel (Bernard 1992).

Not all Supreme Court justices or youth advocates praised these changes. Some, such as Justice Potter Stewart, expressed concern that the juvenile court was becoming increasingly similar to the criminal court and thus losing its justification as a separate system for processing young offenders. This concern became more pronounced in subsequent decades as the juvenile court became more like a criminal court and as new mechanisms emerged to transfer youth to the adult justice system.

Trends in Juvenile Justice

With the advent of the 100th anniversary of the first U.S. juvenile courts, many observers increasingly wondered whether a separate juvenile justice was still appropriate. They noted the similarities with the adult justice system, the abuses prevalent in the juvenile system, and the inefficiencies associated with operating two distinct systems. Others argued that juvenile justice has been fundamentally flawed in conception, combining two contradictory aims: punishment and rehabilitation (Feld 1999). Advocates of maintaining the juvenile justice system argued that despite many flaws, this system provides more and better services for youth than would be provided under a unified juvenile and criminal justice system. They also emphasize that even greater abuses of youth would occur under such a system. (See, for example, The ANNALS, 1999, special issue, "Will the Juvenile Court System Survive?" edited by Ira M. Schwartz.)

Although the debate continues, there remains little evidence that any states are at present ready to dismantle their juvenile justice systems. Indeed, almost all states have passed a panoply of reforms to improve juvenile justice. These reforms include "get tough" measures, such as increasing the ability of prosecutors and judges to transfer youth from juvenile to adult courts. Some states allow prosecutors to directly file certain cases in adult court depending on a youth's age and/or the type of offense committed. Others have enacted statutes that require certain cases to begin in adult court, placing the burden on defense counsel to justify transferring youth to the juvenile justice system.

These and other mechanisms of transfer affect fewer than 1 percent of all youth referred to the juvenile justice system (Snyder and Sickmund 1999). Other reforms have targeted the remaining 99 percent of youth referred to juvenile court. For example, states increasingly have passed laws allowing youth to begin their sentences in the juvenile justice system and then complete them in the adult system. They also have enacted sentencing guidelines loosely modeled after those used in the adult and federal justice systems (Mears 2002).

At the same time, states have changed juvenile justice to improve, and not necessarily toughen, their responses to young offenders. They have promoted better screening and assessment; information-sharing among law enforcement and social service agencies, schools, and the juvenile justice system; specialized courts (e.g., teen, drug, and mental health courts); comprehensive delinquency prevention and early intervention initiatives grounded in community involvement; and restorative justice programming aimed at involving victims and communities in the sanctioning process (Torbet et al. 1996; Howell 1997; Butts and Mears 2001).

It remains unclear what direction juvenile justice will head in the coming decade. Recently, the Department of Justice authorization bill (H.R. 2215), incorporating Representatives Jim Greenwood's and Bobby Scott's bill, the Juvenile Crime Control and Delinquency Prevention Act (H.R. 1900), has resulted in reauthorizing the core parts of the Juvenile Justice and Delinquency Prevention (JJDP) Act, consolidation of existing federal juvenile justice programs into a block grant program for states and local communities, and a greater focus on mental health issues (Boehner 2002). Until this legislation is implemented and assessed, its impact will remain unknown.

Unlike the early 1990s, juvenile crime has been decreasing in recent years, especially for violent offenses (Snyder 2000; Butts and Travis 2002). At the same time, states now can begin to assess the impacts of the many changes to their juvenile justice systems, including assessment of implementation, impacts, and unintended consequences (Mears 2000). These assessments might show that "get tough" and rehabilitative policies have been effective, or they may lead to concerns about existing strategies of punishing and rehabilitating youth and a corresponding emphasis on promoting what works. Should juvenile crime trends change for the worse, these lessons might, however, be forgotten and lead to more "get tough" policies (Bernard 1992).

Juvenile Justice Processing

The juvenile justice system consists of many different components. In general, youth are referred by law enforcement agencies, schools, and families to intake units. Intake officers determine whether the youth should be counseled and released or whether further processing is required. If additional processing is warranted, a decision must be made regarding the safety of the youth to him- or herself and to others. If the risk is sufficient, the youth may be detained pending adjudication; otherwise, he or she is released. At the subsequent adjudication hearing, initiated by the prosecutor by filing a petition with the court, the youth may be "adjudicated delinquent," the equivalent of an adult conviction. In this case, a disposition hearing will be held to determine the appropriate sanction and/or treatment. The options typically include community service, counseling, probation, residential placement, boot camps, wilderness programs, and secure confinement. Otherwise, the youth is released.

Close to half of all juvenile court referrals are handled informally (Mears and Kelly 1999). That is, the prosecutor, in conjunction with a youth's defense representative, determines an appropriate course of action without recourse to adjudication proceedings. The outcomes may be similar to those arrived at through formal (court) processing. For example, a youth may be placed on probation through either informal or formal proceedings. The outcomes also may be more favorable for the youth than if formal court processing were pursued, especially if the youth lacks adequate defense representation (Empey et al. 1999). In many instances (precise estimates are unavailable), youth waive the right to counsel with their parent's consent or because judges may discourage appointment of counsel (Feld 1999).

Processing of juvenile offenders begins once they have been referred to intake. However, referrals comprise only a fraction of all crimes committed by youth, including those that become known to law enforcement agencies. The other, unknown fraction is sometimes referred to as the "dark figure of crime." This fraction varies depending on the type of offense involved. Figure 4.2.1 (see Appendix A) illustrates this point. It shows, for example, that only 36 percent of all residential burglaries are reported to the police compared with 80 percent of aggravated assaults. These percentages vary not only across offenses, but also across jurisdictions and regions of the country.

What happens to youth who are referred to the juvenile justice system? Figure 4.2.2 depicts the processing of the close to 1.7 million delinquency cases processed in U.S. juvenile courts in 1999. In that year, 42 percent were informally processed (i.e., no petition was filed) and 58 percent were formally processed. Regardless of whether they were processed informally or formally, fewer than 1 percent ultimately were transferred to criminal court, 10 percent were placed out of the home, 40 percent were placed on probation, 31 percent were given other sanctions, and 19 percent were dismissed or released. Of every 1,000 delinquency cases processed in 1999, 581 were formally processed. Of these, 381 (66 percent) were adjudicated and 34 percent were not. In both instances, the vast majority of youth received some type of sanction. Consistent with a trend toward more formal and "get tough" responses to youth crime, the percentage of cases dismissed or released has declined, from 34 to 19 percent between 1997 and 1999.

Processing varies considerably across different age and racial/ethnic groups and by gender, as well as by offense (Snyder and Sickmund 1999). Formal processing among whites and blacks differs, for example, but these differences vary across offenses. Analysis of data provided by the National Juvenile Court Data Archive (Stahl et al. 2002) shows that in 1999, 55 percent of white youth referred for processing were handled formally, compared with 66 percent of black youth. The difference was even greater for drug offenses: 55 percent of white youth referred for a drug offense were formally processed, compared with 80 percent of black youth (Stahl et al. 2002).

Racial/ethnic differences in juvenile justice processing have emerged as a pressing policy issue nationwide (Pope and Feyerherm 1995; Feld 1999). Critics of the juvenile justice system point to the overrepresentation of African Americans and other minority groups, noting that a greater percentage of minorities are represented at all stages of processing than are represented in the general youth population. To draw attention to this issue, they point to many compelling facts about race/ethnicity, and its intersection with gender, that collectively indicate the critical importance of race/ethnicity when discussing juvenile justice policy:

• Rates of violent victimization are higher among blacks than among whites, and the rate of violent victimization among American Indians (119 victimizations per 100,000 American Indians age 12 or older) is 2.0 times greater than among blacks, 2.5 times greater than among whites, and 4.5 times greater than among Asians (Rennison 2001).
• In 1997, non-Hispanic black juveniles were incarcerated in residential placement facilities at a considerably higher rate (1,018 per 100,000 non-Hispanic black juveniles in the general population) than Hispanics (515) and non-Hispanic whites (204) (Office of Juvenile Justice and Delinquency Prevention [OJJDP] Statistical Briefing Book. Available online at http://www.ojjdp.ncjrs.org/ojstatbb/qa162.html, September 30, 1999).
• These racial/ethnic differences are found among both males and females:
• Non-Hispanic black male juveniles were incarcerated in residential placement facilities at a considerably higher rate (1,176 per 100,000 non-Hispanic black male juveniles in the general population) in 1997 than Hispanics (902) and non-Hispanic whites (327) (OJJDP Statistical Briefing Book. Available online at http://ojjdp.ncjrs.org/ojstatbb/html/qa336.html, July 31, 2001).
• Non-Hispanic black female juveniles were incarcerated in residential placement facilities at a considerably higher rate (234 per 100,000 non-Hispanic black female juveniles in the general population) in 1997 than Hispanics (100) and non-Hispanic whites (75) (OJJDP Statistical Briefing Book. Available online at http://ojjdp.ncjrs.org/ojstatbb/html/qa335.html, July 31, 2001).
• Non-Hispanic black male juveniles accounted for 55 percent of youth in residential placement for robbery in 1997 and 30 percent of youth in placement for status offenses. They also accounted for over 60 percent of placements for drug trafficking and over 50 percent of placements for drug offenses (OJJDP Statistical Briefing Book. Available online at http://www.ojjdp.ncjrs.org/ojstatbb/qa160.html, September 30, 1999).

Such facts only begin to capture the age, sex, and racial/ethnic dimensions of juvenile justice, and how these may vary by type of offense and stage of juvenile justice processing (see, e.g., Pope and Feyerherm 1995; Snyder and Sickmund 1999). Yet they illustrate the broad-based pattern that underlies almost all statistics in this area. Namely, on the whole, racial/ethnic minorities, especially racial/ethnic minority male populations, are overrepresented in the juvenile justice system relative to their prevalence in the general population.

Although researchers have examined this issue in great detail, much remains unknown and debated. For example, some studies suggest that black youth are much more likely to be incarcerated than are white youth, while other studies find that this difference typically reflects differences in the seriousness and record of offending between the two groups (Empey et al. 1999:362). Increasingly, research indicates that minority discrimination may operate through a series of incremental steps through the stages of the juvenile justice system that collectively result in the aggregate differences observed at later stages of processing (Pope and Feyerherm 1995; Sampson and Lauritsen 1997). For example, in some jurisdictions black youth may be more likely to be detained than white youth. Detention can increase the likelihood of disposition to long-term secure confinement, and thus may operate indirectly to result in disproportionate numbers of black youth being incarcerated, even if no additional form of discrimination occurred at the point of disposition. Studies that fail to examine both stages of processing may fail to identify this potential source of overrepresentation of youth in long-term secure confinement.

Some studies observe more pronounced racial/ethnic processing in some jurisdictions than in others, and others show that disproportionately more severe treatment of minority youth occurs primarily in jurisdictions with large proportions of minorities (Empey et al. 1999). In large jurisdictions consisting primarily of minority youth, decisions to automatically sanction certain types of offenses can result in statewide aggregate differences in the processing of minority and nonminority youth (Mears and Field 2000). The statewide difference might appear to result from discrimination against black youth, when the difference in reality would reflect processing in one jurisdiction. Decisions to process certain kinds of cases in a particular way also can differentially affect certain groups if these kinds of cases are more concentrated in those groups.

Such complexity should not obscure the importance of overrepresentation of racial/ethnic minorities as a central policy concern. As suggested by research, overrepresentation may result from overt discrimination at any one particular stage or less obvious, aggregated forms of systemwide discrimination that may reflect how particular types of cases are handled. Even if no discrimination were found at any stage of processing, including the actions of law enforcement agencies, the overrepresentation would be a concern. It might, for example, reflect a community or society-level problem in the opportunities afforded African-American youth or the ways in which these and other minority youth are treated (Feld 1999). For example, Native American Indian youth experience considerable hardship, including poverty, unemployment, poor housing and education, and medical and health problems, factors that may in turn contribute both to delinquency and to how these youth are treated before and after they enter the juvenile justice system (Campbell 2000; Sanchez-Way and Johnson 2000).

Juvenile Justice and Youth with Disabilities

Under federal law, including IDEA, youth with disabilities are entitled to special education and related services while they are under the authority of the juvenile justice system (Burrell and Warboys 2000). Considerable attention by researchers and advocates has focused on youth with disabilities in the juvenile justice system. However, much of this focus concentrates on youth incarcerated in long-term secure confinement facilities, even though the vast majority of youth in the juvenile justice system are not in these facilities. Rather, they are in short-term detention, on probation or parole, or in residential treatment facilities. Many are simply released outright, even though there may be evidence that they should be referred for services because of a potential disability that may not previously have been identified by schools. As Burrell and Warboys (2000:1) have observed: "Youth in the juvenile justice system are much more likely to have both identified and undiscovered disabilities" (emphasis added). Few juvenile justice systems employ rigorous screening and assessment for all youth who enter the juvenile justice system (Mears and Kelly 1999). Even if they did, the quality, focus, and goals of the screening and assessment can vary greatly, thus reducing the chances that youth with disabilities will be independently identified.

Identification of youth with disabilities in the juvenile justice system can be relevant at almost all stages of processing:

[Information about a youth's disability] may help to determine whether formal delinquency proceedings should proceed or suggest important directions for investigation and case strategy. Information about the disability often helps to explain behavior in a way that facilitates constructive intervention, and it is essential to arriving at a disposition that will both meet the youth's rehabilitative needs and comply with IDEA requirements. Helping youth reach their educational potential by protecting their rights under IDEA can give them the tools they need to succeed in life. In fact, many of the behavioral and educational issues addressed through the special education system closely parallel issues encompassed in the juvenile court disposition process. In ensuring that disability-related needs are identified and met, IDEA may play a significant role in reducing delinquent behavior (Burrell and Warboys 2000:1).

The different stages of processing--including intake, adjudication, disposition, incarceration, and release--all represent central areas in which federal disability law is especially relevant to the juvenile justice system. Defense counsel serve a critical role throughout these stages, helping both to traverse the adversarial process of adjudication and to advocate for evaluation and services to which youth are legally entitled (Peikin 2001). The application of disability law to juvenile justice processing is discussed in greater detail below. However, it bears emphasizing here that many laws do not make clear what stage, or part, of the juvenile justice system is responsible for carrying out a given provision of the law, including when and how youth should be screened and assessed for disabilities and related needs.

Figure 4.2.3 depicts both the stages of the juvenile justice system and the range of opportunities for intervening with youth before, during, and upon leaving the juvenile justice system. As the left-most box suggests, communities and the resources within them (e.g., health care providers, hospitals and clinics, families, and schools) are the primary agents who can influence whether a youth with a disability is appropriately identified as having a disability and then receives services that may help prevent involvement in the justice system.

The second set of boxes describes the juvenile justice system and the various stages within it. Youth referred to the juvenile justice system first are referred to intake, where they are assessed for their risk to self and others and for any needs that should be addressed. Intake thus constitutes a critical point at which youth with disabilities can be identified, along with any special needs they may have. Although there currently are few systematic studies of intake practices, the available evidence suggests that few intake units have the capacity or training to identify youth with disabilities, interpret their behaviors correctly, or link them to needed services (Mears and Kelly 1999; Leone et al. 2002). From intake, youth may be released outright, detained, or referred for processing by the courts. In each instance, opportunities exist to intervene with youth to ensure their needs are met. Dismissed youth, for example, may be at greater risk for additional delinquency and referral to the justice system if they do not receive disability-related services. In addition, youth who are referred for processing may not receive adequate representation or advocacy if defense counsel are not aware of the youth's disabilities. Youth who are informally or formally processed may be sent to the adult justice system, placed in secure residential placement or on probation, or diverted to community-based noncustodial diversionary alternatives.

As the final box indicates, all youth released from custody will reenter communities. Many of these youth will still be of an age to be reentering schools, as well as their families. This transition may be difficult due to the sometimes extensive period of time, from several months to several years, that youth may have been incarcerated. If these youth engage in further delinquency or other anti-social behaviors, they may reenter the juvenile justice system and, because of a prior record, face a greater likelihood of formal processing and possibly incarceration.

The evidence to date suggests that relatively little is known about youth with disabilities in the juvenile justice system, especially if one looks beyond correctional facilities and focuses on youth who have been counseled and released, who have been placed on probation or in residential treatment, or who are on parole. What, for example, are the types of disabilities among youth at each stage of processing? What procedures and programs exist to address the needs of youth with disabilities at each stage? What is the capacity of the system as a whole to address these disabilities? What is the awareness among juvenile court practitioners of disabilities and disability law? What is the extent to which schools share education-related information with juvenile court intake units? With few exceptions, the existing research is relatively silent on these and related questions. The one notable exception is research on youth in long-term secure confinement. Many studies have examined this population and continue to do so (Rutherford et al. 2002). Yet even these studies frequently suffer from data limitations that preclude accurate estimation of the prevalence of particular types of disabilities, how these disabilities affect youths' experiences of the juvenile justice system, or how the system addresses the needs of these youths.

Juvenile Justice and Federal Efforts

There currently exists an entity--the Coordinating Council on Juvenile Justice and Delinquency Prevention--responsible for coordinating federal delinquency prevention programs. The Coordinating Council, established by the JJDP Act, is composed of members from a wide range of federal agencies and acts as an independent body within the executive branch of the Federal Government (http://ojjdp.ncjrs.org/council). The JJDP Act emerged out of concern, among other things, with the incarceration of status offenders and the confinement of youth with adults. The original Act was enacted in 1975 and has since been amended and reauthorized several times. The JJDP Act focuses primarily on systems-level reforms aimed at deinstitutionalization of status offenders, separate detainment and confinement facilities for youth and adults, and examination of whether and why there may be disproportionate minority confinement among states (Bilchik 1995). The Coordinating Council is one of the more important results of the JJDP Act, especially for youth with disabilities, because its responsibilities include the coordination of federal, state, and local efforts to better serve at-risk youth.

To date, the Council has produced or supported several publications that focus on youth in federal custody, the death penalty, underage drinking, and, perhaps its most widely disseminated effort, the report, Combating Violence and Delinquency: The National Juvenile Justice Action Plan (1996). With respect to disability issues, the Council has created a "Children with Disabilities" Web site (www.childrenwithdisabilities.ncjrs.org), which provides links to resources and information on such topics as health, housing, and education. These efforts have advanced program and policy thinking about delinquency prevention, and the Web site specifically provides an important source of centralized links to disability topics. It remains unclear, however, what specific impacts these or other efforts undertaken by the Council have had on actual practices in addressing the needs of youth with disabilities at risk of delinquency or involvement in the juvenile justice system.

Although responsibility for coordinating federal efforts lies primarily with the Coordinating Council, the responsibility for programming that addresses youth with disabilities in or at risk of entering the juvenile justice system lies primarily with the Office of Juvenile Justice and Delinquency Prevention (OJJDP). Under the JJDP Act, OJJDP is mandated

to develop and implement, in coordination with the Secretary of Education, model programs and methods to keep students in elementary and secondary schools, to assist in identifying learning difficulties (including learning disabilities), to prevent unwarranted and arbitrary suspensions and expulsions, and to encourage new approaches and techniques with respect to the prevention of school violence and vandalism. (Juvenile Justice and Delinquency Prevention Act, Subchapter II, Programs and Offices, Part C, National Programs, Subpart II, Special Emphasis Prevention and Treatment Programs, 42 U.S.C. 5665, Sec. 261)

To this end, OJJDP has spearheaded many initiatives focused on delinquency prevention in general, including school-based efforts. It also recently published a report, Special Education and the Juvenile Justice System (Burrell and Warboys 2000), discussing IDEA and issues related to the treatment of youth with disabilities in the juvenile justice system, and a related report, Guidelines for the Screening of Persons Working with Children, the Elderly, and Individuals with Disabilities in Need of Support (Davis et al. 1998). OJJDP also has worked with the Coordinating Council to support the "Children with Disabilities" Web site.

In collaboration with the U.S. Department of Education's Office of Special Education Programs, OJJDP has funded the National Center on Education, Disability and Juvenile Justice (EDJJ). EDJJ provides a centralized and Web-based source of information about youth with disabilities at risk of entering or already in the juvenile justice system, their educational needs, and effective responses to addressing these needs (http://www.edjj.org). EDJJ staff conduct or support research, provide training and technical assistance, and arrange meetings.

These types of efforts highlight the importance that OJJDP, as well as the Department of Education (DOE), has placed on addressing the needs of youth with disabilities. At the same time, it is evident that no centralized, well-coordinated system of research or programming has emerged from either the Coordinating Council, OJJDP, or DOE focusing on this population. (A review of the discretionary spending initiatives available through IDEA in fiscal year 2001 for research and technical assistance suggests that the Department of Education's support of EDJJ is one of the only DOE efforts targeting children and youth at risk of entering or already involved in the juvenile justice system [U.S. Department of Education 2002].) There also is little evidence that their efforts have resulted in demonstrable impacts on practices in schools or the juvenile justice system (Osher et al. 2002). Indeed, many sources, including recent reports by the National Council on Disability (2000, 2002b), suggest a continuing national failure to fully and effectively implement federal disability law.

Consequently, some sources (e.g., Cagungun 2000), as well as individuals interviewed for this report (see Appendix A), have called for better coordinated and funded national efforts. They suggest, for example, the creation of a national commission that might bring a greater and more sustained focus to research on and programming for youth with disabilities in or at risk of entering the juvenile justice system. Recently, the President of the United States issued a memorandum calling for the development of a Task Force to develop a comprehensive federal response to the "problems of youth failure" and, to this end, to coordinate interagency efforts, develop a unified research plan, promote youth development practices, and assess federal efforts targeting disadvantaged youth (Bush 2002). This Task Force might eventually promote the types of better coordinated and funded national efforts recommended by NCD and others.

As the subsequent chapters demonstrate, the lack of sustained attention to this population of youth stands as one of the most obvious barriers to developing more effective programs and policies. There are many opportunities--discussed below and in the figures and tables in Appendix A--for improving both research and practice. For example, improved screening and assessment in schools and the juvenile justice system, as well as cooperation and coordination among schools and the juvenile justice system, might contribute to greater and improved implementation of IDEA in both settings. However, the existence of such opportunities by themselves is insufficient to result in a change in the levels and quality of programming and enforcement of juvenile justice and disability law. For that, a well-funded and coordinated federal research and implementation initiative, or the functional equivalent at the state level, likely will be necessary.

5. Disability, Delinquency, and Juvenile Justice

This chapter examines possible relationships between disability, delinquency, and juvenile justice. It first highlights several critical issues involved in defining, conceptualizing, and measuring disability and delinquency. This discussion establishes a foundation for appreciating the limitations of current estimates of the prevalence of youth with disabilities in society, schools, and the juvenile justice system. The chapter then discusses whether a "link" between disability and delinquency exists, and what may account for the apparent overrepresentation of youth with disabilities in juvenile correctional settings. This discussion is followed by a review of some basic facts about overrepresentation. Despite considerable attention to this issue, few local, state, federal, or tribal jurisdictions maintain consistent and comprehensive databases documenting how many youth with disabilities are processed throughout the juvenile justice system. The chapter concludes by discussing briefly the role of schools as potential conduits for transferring youth with disabilities into the juvenile justice system, and reviewing some of the critical trends identified by the interview respondents.

5.1 Definitional, Conceptual, and Measurement Issues

Accurate estimates of the depth and breadth of the disability and delinquency problem are rare. A major reason for this is that defining and measuring disability among children is inherently difficult. As with adults, no single universally accepted definition of disability exists for children and youth. However, there are several dimensions along which disabilities typically are defined or described.

Disability typically refers to how physical or mental limitations are manifested within a specific social or environmental context. Thus, a disability can be thought of as the outcome of an interaction between impairments, or functional limitations, and behavioral/performance expectations of socially defined roles. An individual who is impaired/limited in his or her ability in one environment may not be limited when elements of that environment are changed.

In practice, estimates of the prevalence of disabilities among children have relied on two very different types of information and approaches. The most common approach has been to use data on the prevalence of disabling chronic conditions. The National Health Interview Survey, for example, uses this approach. Although it is useful if one is interested in specific disabling conditions (e.g., autism or cerebral palsy), using chronic conditions to measure the prevalence of disabilities requires that one decide what conditions should be included. How this determination is or should be made is not always clear. Also, because not all chronic conditions are disabling, this approach also requires specifying what the criteria are for condition duration and severity.

Disability prevalence measures are sensitive to these decisions and can vary dramatically even when using a single data source. Another disadvantage of using a condition-specific approach is that children are by nature moving targets developmentally. The presence of any single chronic or disabling condition may have different effects on the child's functional abilities/disabilities as the child ages or even from one child to another (Aron et al. 1996). Additional conceptual challenges arise when a child has two or more disabling conditions, the cumulative effects of which may far exceed the simple sum of the effects of the individual conditions (Office of Special Education Programs 2000).

An alternative to this condition-specific, or categorical, approach is what is known as a noncategorical, or functional, approach. This method involves assessing, without regard to specific condition, children's functioning in areas such as cognition, communication, motor abilities, social abilities, and patterns of interaction. (When the U.S. Supreme Court decided in 1990 in Sullivan v. Zebley that the Social Security Administration [SSA] must make its eligibility determination process for children comparable to that for adults, it essentially required that SSA shift its eligibility determination process from a condition-specific approach to a functional one.) This approach is more consistent with the broader definition of disability described earlier. It also accords with a recent review's recommendation that schools, and by extension the juvenile justice system, transcend the problems associated with the inconsistent use and measurement of categories. One strategy, for example, is to emphasize that with all categories (e.g., specific learning disability, emotional disturbance, mental retardation) there may be a generalized academic deficit that itself constitutes a disability (Rutherford et al. 2002).

The challenges associated with defining and therefore measuring disability become immediately evident when one looks beyond the research literature on disabilities. Social service and health agencies, professional organizations, and even legislative acts employ different terms, definitions, and criteria for defining, diagnosing, and classifying disabilities among children (Murphy 1986; Aron et al. 1996; U.S. Department of Education 2001). Across agencies and schools there can be additional variation. In special education, for example, a child with the same underlying condition can be assigned a diagnosis of behaviorally-emotionally handicapped, severely emotionally disturbed, or behaviorally disordered. A mental health professional might diagnose the same child as having a mood or conduct disorder. Professional organizations such as the American Association on Mental Retardation, the Autism Society of America, and the Learning Disabilities Association of America frequently employ definitions and diagnostic criteria that differ from those used in special education and rehabilitative settings.

Legal definitions can also vary over time. The definition of and assessment procedures for diagnosing conduct disorders, for example, have changed during the past two decades, and currently few reliable instruments exist for making this diagnosis (Mrazek and Haggerty 1994). As Aron et al. (1996) have noted, this diversity in diagnostic definitions, classifications, and ways of determining eligibility has serious implications:

In practice, no single definitional or classification system has been used by service providers or others in the childhood disability community. Differences in the way children with disabilities are diagnosed and classified remain a continuing problem that affects choices in medical, educational, social, and rehabilitative services. These differences complicate decisions about eligibility, transitioning across programs, program funding, and documentation of program impact. For researchers and policymakers, it also adds to the difficulty of comparing studies and systematically analyzing different policies. This variability reflects conceptual, semantic, and measurement issues. (p. 13)

Defining and measuring disabilities among youth who are delinquent (or at risk of delinquency) can be even more challenging. Within the juvenile justice system, estimates are problematic because few states systematically screen and assess youth who enter the juvenile justice system (Towberman 1992). This issue is critical given that the vast majority of youth referred to juvenile courts will have their cases dismissed or receive probation; only a small fraction will eventually be incarcerated (Mears and Kelly 1999). Most studies of youth with disabilities focus primarily on youth in correctional settings and thus cannot generalize to youth throughout the juvenile justice system. Moreover, their generalizability to all youth engaged in delinquency is suspect because incarcerated youth represent a select population of all delinquents, typically the most serious or chronic offenders. Unfortunately, national studies of general population youth typically do not systematically examine disabilities and delinquency within the same study. We therefore lack a direct assessment of the relative prevalence of disabilities among delinquents, or of delinquency among youth with disabilities. An additional complication lies in the fact that researchers frequently do not use similar age groupings. Also, the legal definition of "child" and "juvenile" varies considerably across states (Feld 1999), and researchers may use different age groupings depending on their theoretical perspective or restrictions imposed by the data they are using (Aron et al. 1996).

Even if one understands that incarcerated youth are not representative of all youth involved in the juvenile justice system, there are other reasons for interpreting studies of disabilities among incarcerated youth with caution. The incarcerated youth population is constantly experiencing turnover, with many youth staying for relatively short periods of time and a smaller share staying for longer periods of time. Data that rely on a snapshot of the characteristics of incarcerated youth at a single point in time will overrepresent the characteristics of the long-term stayers and underrepresent the characteristics of the short-term stayers. Thus, if youth with certain types of disabilities are likely to be incarcerated for longer periods, studies relying on point-in-time data will overstate the prevalence of these disabilities among incarcerated youth. An additional problem lies in the fact that some disabilities may be given more attention than others, leading to few assessments of the prevalence of other disabilities. For example, Burrell and Warboys (2000:2) have observed that the "two most common disabilities found in the juvenile justice system are specific learning disability and emotional disturbance." Yet few studies systematically focus on other disabilities, such as those linked to health; speech, language, or visual impairments; or mental retardation.

Finally, studies examining changes over time in the prevalence of youth with disabilities in the juvenile justice system must take into account increases in the estimated prevalence of disabilities among all children and adolescents. Any identified increases in these different prevalence rates may be due, for example, to factors such as improvements in data collection and assessment; increased survivorship of low-birthweight babies and children with certain chronic conditions (due to advances in medical technology); improved responsiveness to programs that assist individuals identified as having a disability; and greater awareness and detection by parents, educators, and health care and other youth-serving professionals (Aron et al. 1996).

5.2 Possible Relationships: Theories and Research

Background

During the past century, considerable research has focused on the relationship between disability and delinquency (Murphy 1986). Initial interest among researchers and practitioners arose out of the observation that many youth in the juvenile and criminal justice systems experienced emotional and psychological issues that in more recent years would be viewed as a subset of conditions comprising a disability. As researchers and policymakers have become m