"Monitoring Youth: The Collision of Rights and Rehabilitation"

The title of this post is the title of this notable and timely new paper by Kate Weisburd now available via SSRN. Here is the abstract:

A monumental shift in juvenile justice is underway, inspired by the wide recognition that incarceration is not the solution to youth crime.  In its place, “electronic monitoring” has gained widespread support as a new form of judicial control over youth offenders. Supporters herald it as “jail-to-go”: a cost-efficient alternative to incarceration that allows youth to be home while furthering rehabilitative and deterrent goals.  But despite electronic monitoring’s intuitive appeal, virtually no empirical evidence suggests its effectiveness.  Instead, given the realities of adolescent development, electronic monitoring may cause more harm than good.

This Article is the first to examine the routine, and troubling, use of electronic monitoring in juvenile courts.  After describing the realities of the practice and its proffered justifications, this Article refutes three key misperceptions about the practice: (1) that it lowers incarceration rates because it is used only on youth who would otherwise be detained; (2) that it effectively rehabilitates youth; and (3) that it is cost-effective.

Yet because of the deference afforded to judges in crafting terms of probation and pretrial release, the rehabilitative rhetoric of juvenile court, and the perception of electronic monitoring as non-punitive, electronic monitoring is subject to virtually no judicial oversight or scrutiny.  The result is that the practice exists in a legal and policy netherworld: wielded and expanded with almost no limits.  This Article concludes by arguing that electronic monitoring should be categorized as a form of punishment, warranting a new doctrinal framework that more rigorously evaluates, and circumscribes, monitoring and other forms of non-carceral control.