In the United States, involuntary commitment remains integral to mental health intervention. In certain circumstances, institutionalisation is indefinite. Texas, for example, has never fully released a patient from its post-carceral commitment program, which has operated for more than two decades. Several successive Supreme Court rulings uphold indefinite confinement’s constitutionality, including Kansas v. Hendricks, which rests upon a statute that relates the predilection for sexual violence to a ‘mental abnormality’ or ‘personality disorder’ and invokes the obligation of treatment. According to the Prison Policy Initiative, 22,000 people are currently confined within civil commitment facilities after encounters with the criminal justice system, including indefinitely institutionalised minors. In New Jersey, attorneys estimate that a single facility contains as many as 30 individuals who have been confined since childhood.
Clinicians using risk assessment protocols often make juvenile commitment determinations. Despite the gravity of the crimes that precipitate indefinite institutionalisation—often sexually violent in nature—juvenile risk assessment protocols are nonetheless worthy of scrutiny, as they are ambiguously effective and visibly discriminatory. Further, these protocols are implicated in the continued assimilation of mental health treatment systems into punitive carceral structures.
Predictive risk assessments are meant to impose order onto an anticipatory process. In practice, they legitimate guesswork. Algorithmic conjecture is a fairly widespread contemporary phenomenon, though recent literature has raised questions of both efficacy and ethics. Experimental research has demonstrated that the difference between the best- and worst-performing predictive models was always smaller than that between the best models and reality. The authors concluded that actuarial models were “‘better at predicting each other’ than at predicting the path of a human life.” Critically, the data used in the creation of risk assessment protocols is often suffused with the biases that pervade the criminal justice system, which further entrenches discriminatory disciplinary outcomes. In the case of J-SOAP-II and JSORRAT-II, two of the most common juvenile risk assessment manuals in the United States, the generative studies relied disproportionately on Black and Latinx youth and research has shown that juveniles of colour continue to receive discrepantly higher risk scores than their white counterparts.
Indefinite confinement contradicts both mental health treatment principles and retributive corrections objectives. On one hand, mental health treatment is intended to heal or improve a person’s psychological state. On the other hand, at least in theory, incarceration is meant to allow a person to re-enter society unburdened by previous wrongs. The US criminal justice system fails on both counts. It falls short of the retributive ideal, and it negates the possibility of ‘redemptive’ re-entry.
Institutionalisation is intended to be a compassionate alternative to incarceration. Instead, patients suffer myriad abuses that erase an individual’s agency. The act of pathologising a juvenile as incurably mentally disordered justifies their permanent confinement and exclusion. In this way, therapeutic practices propel the continued expansion of mass incarceration and mass supervision in the United States. While the proliferation of disciplinary processes in general is widely discussed, the unique cruelty of juvenile risk assessment protocols is often overlooked. J-SOAP-II and JSORRAT-II, for example, both require the presiding clinician to rate the assessee’s history of sexual abuse, which if present would contribute to the score used in justifying their subsequent institutionalisation. Juvenile perpetrators as young as 9 years old were used in the study that produced J-SOAP-II, which expressly includes instructions for the assessment of preadolescent children, leaving no question as to whether assessees may lack full maturity when evaluated for indefinite confinement. In essence, studies of childhood trauma and its effects have been appropriated and instrumentalised in service of punitive carcerality.
In Prison by Any Other Name, Maya Schenwar and Victoria Law note that civil commitment detainees are generally ‘some of the least advocated-for members of society.’ The difficulty of mental health self-advocacy is all the more acute for children. Regardless of the problem’s scope, however, the effectiveness of juvenile risk assessment protocols is dubious and they are demonstrably discriminatory. What’s more, they carceralise mental health treatment. The United States owes its ‘least advocated-for’ citizens a coherent system for the administration of justice, and such a system would acknowledge trauma without weaponising it. To that end, the re-examination of juvenile risk assessment protocols is long overdue.
Note: This article gives the views of the authors, and not the position of the Social Policy Blog, nor of the London School of Economics.
