Justice for Girls: Are We Making Progress?

Francine T. Sherman

ABSTRACT

Over the course of more than a century, structural gender bias has been a remarkably 

durable feature of U.S. juvenile justice systems. Consequently, as these systems have 

developed over the years, reducing gender bias and addressing girls in helpful, rather than 

harmful, ways has required speci!c and concerted e"orts on the part of federal and state 

governments. Currently, there are a number of positive trends in juvenile justice, including 

policy and practice that is increasingly developmentally centered and data driven. #e question 

for those focused on girls in the juvenile justice system is how to ensure that girls are the 

bene!ciaries of these positive trends. 

#is Article discusses the history of federal leadership on girls’ issues and then considers 

the impact on girls of current trends toward developmentally centered and data-driven 

juvenile justice. It considers the application of developmentally centered policy in relation to 

girls who experience family violence and those who are commercially sexually exploited. 

#e Article then examines the movement toward data-driven decisionmaking for its 

potential to reduce embedded gender bias and particularly bias at the intersection of race and 

gender. It examines the impact on girls of the increasing use of assessment instruments 

and the consequences of greater reliance on evidence-based practice as further illustrations 

of the new data-driven approaches. #roughout, the Article discusses the implications of 

these trends for girls and suggests ways that systems can ensure that girls’ issues are 

considered and addressed.

AUTHOR

Francine T. Sherman is Visiting Clinical Professor and Director, Juvenile Rights Advocacy 

Project, Boston College Law School.

I am grateful for research assistance to Gabriella Agranat-Getz, Chandini Dublin, and 

MaryAnn Neary of Boston College Law School, to Fran Jacobs for her careful editing, and 

to the participants in the UCLA Law Review Symposium, Overpoliced and Underprotected: 

Women, Race, and Criminalization, for providing me with a broad perspective on these issues.

UCLA LAW 

REVIEW

59 UCLA L. REV. 1584 (2012)
TABLE OF CONTENTS

Introduction ..........................................................................................................1586

I. A History of Girls and Juvenile Justice .................................................1589

II. Child Development and Juvenile Justice Policy ..................................1595

A. What Does #is Developmental Focus Mean for Girls? .......................1598

B. Domestic Violence .................................................................................1602

C. Commercial Sexual Exploitation ............................................................1606

III. Using Data in Juvenile Justice ..................................................................1612

A. Intersectionality in Juvenile Justice .........................................................1616

B. Using Data to Promote Fairness ............................................................1618

C. Assessing Risk: #e Assessment Debate ................................................1621

D. Evidence-Based Practice and Girls ........................................................1624

Conclusion .............................................................................................................1627

1585
1586 59 UCLA L. REV. 1584 (2012) 

INTRODUCTION

Social expectations that girls behave obediently, modestly, and cautiously have 

been remarkably durable over more than one hundred years of juvenile justice in the 

United States, and throughout that time these expectations have masked structural 

gender discrimination. At the turn of the twentieth century, these expectations 

were behind the proliferation of training schools for immigrant girls who were 

perceived to be immoral and in need of guidance that would enable them to marry 

and to become responsible mothers.1

 In the mid– and late twentieth century, these 

expectations supported detention and incarceration of girls for status offenses, for 

technical probation violations, and particularly for running away.2

 Now, these same 

expectations result in the detention and incarceration of girls who fight back at 

home or in intimate relationships and who are victims of sexual exploitation.3

The structural discrimination that supports detaining and incarcerating girls 

for violating these norms is both hard to see and hard to challenge.4

 It is often 

hidden behind outward goodwill toward girls and legitimate expressions of concern 

for their vulnerability and possible victimization. This concern is consistent with 

the social welfare mission of the juvenile court and the many opportunities for 

multifactored, “best interests”–based discretionary decisions built into the juvenile 

justice and child welfare systems.5

 However, a closer look suggests that what 

professes to be social welfare is often social control of teenage girls who frustrate 

child welfare and juvenile justice systems with their chronic disobedience of home, 

court, and agency rules.6

 Studies show that girls are more likely than boys to be 

held in contempt for violating court-imposed rules7

 and that probation officers 

1. See infra notes 24–28 and accompanying text. 

2. See infra notes 29–40 and accompanying text. 

3. See infra notes 119–171 and accompanying text. 

4. See infra notes 174–188 and accompanying text. 

5. See Barry C. Feld, The Juvenile Court Meets the Principle of Offense: Punishment, Treatment, and the 

Difference It Makes, 68 B.U. L. REV. 821, 848–49 (1988); Perry L. Moriearty, Combating the ColorCoded Confinement of Kids: An Equal Protection Remedy, 32 N.Y.U. REV. L. & SOC. CHANGE 285, 

307–08 (2008); see also 43 C.J.S. Infants § 82 (2012). 

6. See Patricia J. Arthur & Regina Waugh, Status Offenses and the Juvenile Justice and Delinquency 

Prevention Act: The Exception That Swallowed the Rule, 7 SEATTLE J. FOR SOC. JUST. 555, 558 

(2009); Meda Chesney-Lind, Reaction Essay, Criminalizing Victimization: The Unintended Consequences 

of Pro-arrest Policies for Girls and Women, 2 CRIMINOLOGY & PUB.POL’Y 81, 84 (2002). 

7. See Donna M. Bishop & Charles E. Frazier, Gender Bias in Juvenile Justice Processing: Implications of 

the JJDP Act, 82 J. CRIM.L. & CRIMINOLOGY 1162, 1180 & n.40 (1992). 
Justice for Girls 1587 

view girls as needy and difficult.8 Illustrating this attitude, probation officers in the 

first all-female probation unit had to be enticed to work girls’ cases by offers to 

trade ten boys’ cases for one girl’s case.9

 And when girls in the justice system are not 

seen as needy, they are seen as increasingly aggressive—acting more like bad boys.10

In the 1992 amendments11 to the Juvenile Justice and Delinquency Prevention 

(JJDP) Act,12 the U.S. Congress instructed states to analyze their systems’ provision 

of “gender-specific services” to female offenders and plan the delivery of genderspecific treatment and prevention services.13 At that time, just over 300,000 girls 

were referred to juvenile courts on delinquency charges, making girls 20 percent of 

the total delinquency court population. By 2008, the number of girls referred to 

juvenile court had increased by 48 percent to 450,000—almost 30 percent of total 

delinquency court referrals.14

Unlike the restriction on disproportionate minority contact (DMC), which 

addresses racial disparities at all stages of the juvenile justice process, the provision 

of gender-responsive services has never been a core requirement of the JJDP Act 

upon which federal funding is contingent15 and has never been fully described. 

Partially for these reasons, analysis of gender’s role in juvenile justice systems and 

8. See Emily Gaarder, Nancy Rodriguez & Marjorie S. Zatz, Criers, Liars, and Manipulators: Probation 

Officers’ Views of Girls, 21 JUST. Q. 547, 556–58 (2004). 

9. Marian D. Daniel, The Female Intervention Team, JUV. JUST., Oct. 1999, at 14, 14, available at

https://www.ncjrs.gov/html/ojjdp/jjjournal1099/fem1.html. 

10. See, e.g., DEBORAH PROTHROW-STITH & HOWARD R. SPIVAK, SUGAR AND SPICE AND NO 

LONGER NICE: HOW WE CAN STOP GIRLS’ VIOLENCE 4 (2005) (“Girls are fighting like boys—

not as much (yet) but with similar willingness to use physical violence.”). 

11. Act of Nov. 4, 1992, Pub. L. No. 102-586, 106 Stat. 4982. 

12. Juvenile Justice and Delinquency Prevention (JJDP) Act of 1974, 42 U.S.C. §§ 5601–5784 (2006). 

13. See id. § 5633(a)(7)(B). See generally Joseph R. Biden, Jr., What About the Girls? The Role of the Federal 

Government in Addressing the Rise in Female Juvenile Offenders, 14 STAN.L.& POL’Y REV. 29 (2003). 

14. See FRANCINE T. SHERMAN,RICHARD A.MENDEL & ANGELA IRVINE,MAKING DETENTION 

REFORM WORK FOR GIRLS:JDAI PRACTICE GUIDE #5 (forthcoming 2012) (manuscript at 3–4) 

(citing M. Sickmund et al., Easy Access to Juvenile Court Statistics: 1985–2009, OFF. JUV. JUST. &

DELINQ. PREVENTION, http://www.ojjdp.gov/ojstatbb/ezajcs/asp/selection.asp (last visited July 9, 

2012)). From 1992 to 2002, while girls’ referrals were steadily rising, the number of boys referred to 

juvenile courts remained fairly constant. Sickmund et al., supra. Between 2002 and 2008, the number 

of boys referred to juvenile courts declined 8 percent while the number of girls referred increased slightly. 

Id. Girls’ arrests show a similar pattern. In 1992, girls made up 23 percent of all juvenile arrests, see 

Howard N. Snyder, Fact Sheet: 1992 Juvenile Arrests—FBI Uniform Crime Reports Data, NAT’L CRIM.

JUST.REFERENCE CENTER (May 1994), https://www.ncjrs.gov/txtfiles/fs-9413.txt, and by 2002, this 

number had risen to 29 percent. See HOWARD N. SNYDER, OFFICE OF JUVENILE JUSTICE &

DELINQUENCY PREVENTION, JUVENILE ARRESTS 2002, at 8 (2004), available at https://www. 

ncjrs.gov/pdffiles1/ojjdp/204608.pdf. It continued to rise, and girls made up close to 30 percent of 

juvenile arrests in 2008. Sickmund et al., supra. 

15. See 42 U.S.C. § 5633(a)(7)(B) (stating that there only need be a “plan” for the provision of genderspecific services). 
1588 59 UCLA L. REV. 1584 (2012) 

federal leadership on the issue of gender have been inconsistent.16 Meanwhile, gender 

inequities in juvenile justice systems persist—girls are rarely a high priority for state 

and local juvenile justice systems, which more commonly wait to address girls’ issues 

until they have addressed issues facing other populations or until public pressure 

requires them to focus on girls. And while jurisdictions must analyze race disparities, few make the intersection of race and gender a part of that analysis.17 

Because of a lack of full and practical understanding of the mechanisms that perpetuate gender inequity in juvenile justice and because of the durability of gender 

bias in our social structure, many of the current inequities in juvenile justice systems 

result from the unconscious and unnecessary repetition of past mistakes. 

Notwithstanding this critical view of the juvenile justice system’s treatment 

of girls, recently there have been signs that the direction of juvenile justice in the 

United States may be changing for the better. Overall the number of youth, including girls, entering the juvenile justice system is declining,18 and many observers 

agree that we may be entering an era of more developmentally centered and 

data-driven juvenile justice policies19 that rely less on incarcerating youth and more 

on building community and family support for youth to thrive.20 Positive juvenile 

justice developments cited by commentators are wide ranging and include identification of violence prevention programs that work; research on the brain development 

of teenagers and the developmental differences between youth and adults; research 

on competence and culpability that has changed thinking about adolescent judgment and decisionmaking; an increased focus on issues raised by girls in the justice 

system; evolving standards for humane conditions in juvenile facilities and an 

awareness of poor conditions;21 reduced secure incarceration of youth; and reduced 

racial and ethnic disparities through the use of focused data analysis.22 

16. See infra notes 32–53 and accompanying text. 

17. See generally Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence 

Against Women of Color, 43 STAN. L.REV. 1241 (1991) (discussing the intersection of race and gender 

discrimination in criminal justice policies); Jody Miller, An Examination of Disposition DecisionMaking for Delinquent Girls, in RACE,GENDER, AND CLASS IN CRIMINOLOGY:THE INTERSECTIONS

219 (Martin D. Schwartz & Dragan Milovanovic eds., 1999); Jyoti Nanda, Blind Discretion: Girls 

of Color & Delinquency in the Juvenile Justice System, 59 UCLA L. REV. 1502 (2012); Kim TaylorThompson, Girl Talk—Examining Racial and Gender Lines in Juvenile Justice, 6 NEV.L.J. 1137 (2006).

18. See Sickmund et al., supra note 14. 

19. See, e.g., Mark Soler, Dana Shoenberg & Marc Schindler, Juvenile Justice: Lessons for a New Era, 16 

GEO.J. ON POVERTY L. & POL’Y 483, 537 (2009) (arguing that “policy makers now have abundant 

evidence of effective approaches” for developmentally appropriate programs and services). 

20. See, e.g., id. at 488–92. 

21. For details on the legal theories and requirements regarding conditions of confinement for institutionalized youth, see MICHAEL J.DALE ET AL.,REPRESENTING THE CHILD CLIENT ch. 2 (2012). 

22. See Soler, Shoenberg & Schindler, supra note 19, at 488–92. 
Justice for Girls 1589 

While the current promise of a smarter, more equitable, and more effective 

juvenile justice system is exciting, given girls’ status as a long-overlooked minority 

population in juvenile justice systems and the historical gender bias embedded 

in these systems, it is fair to wonder whether girls will be full beneficiaries of these 

promising developments. At the same time, given the increased awareness that 

girls present specific juvenile justice concerns and considering the twenty-year-old 

federal directive to jurisdictions to assess gender responsiveness, one could reasonably insist that they will be. 

This Article aims to help juvenile justice systems and advocates for girls ensure 

that, as the juvenile justice landscape changes, we do not default to well-known 

patterns of unconscious discrimination. This requires that policymakers and system 

administrators and staff intentionally and critically examine their practices for gender 

impact and understand the ways in which their decisions reinforce structural 

gender bias. It also requires a fuller understanding of how gender and race discrimination intersect in youth policy to drive teenage girls of color into the justice system.23 

Part I examines the history of girls in the juvenile justice system and assesses federal 

attempts to move toward more equitable practices and effective programs for girls. 

Part II looks at the increased role of child development in juvenile justice, and 

specifically at the impact of trauma on girls’ behaviors and the effect of standard juvenile justice practices on girls. Finally, Part III examines several aspects of the 

movement toward data-driven decisionmaking in juvenile justice, including data’s 

potential to reduce embedded gender bias, particularly at the intersection of race and 

gender, the impact of the increasing use of assessment instruments on girls, and the 

consequences of greater reliance on evidence-based practice. Throughout the Article, 

I discuss implications of these trends for girls and suggest ways in which systems 

can ensure that girls’ issues are considered and addressed. 

I. AHISTORY OF GIRLS AND JUVENILE JUSTICE

The use of the juvenile justice system to protect wayward girls began with the 

first articulation of the principle of parens patriae by a U.S. court in Ex parte 

Crouse.

24 Mary Ann Crouse was committed by a justice of the peace to the House 

of Refuge for being an “incorrigible or vicious” “female[] under the age of eighteen 

years.”25 Her father sued for her release, arguing that without a jury her detention 

was punitive and unconstitutional. The court held that her detention was not punitive 

23. See supra note 17. 

24. 4 Whart. 9, 11 (Pa. 1839). 

25. Id. at 10. 
1590 59 UCLA L. REV. 1584 (2012) 

but was justified under the state’s parens patriae power: “May not the natural parents 

when unequal to the task of education, or unworthy of it be superceded by parens 

patriae, or common guardian of the community?”26 The state used its parens patriae

authority, presented as the state’s power to stand in for an unfit parent, to control 

the behavior of a difficult girl by placing her in secure detention. 

This was typical of girls’ treatment in the early years of juvenile justice in the 

United States, and much of juvenile justice decisionmaking today is consistent 

with this history. Accounts of girls’ treatment in the late 1800s and early 1900s 

show that the juvenile justice system frequently intervened to save wayward girls 

from perceived futures in prostitution or criminality27 and redirect them toward 

marriage, motherhood, and home life. Girls in need of intervention were seen as 

both sexually vulnerable and sexually precocious; the system’s role was to instill in 

them appropriate morality.28

Juvenile court jurisdiction was quickly broadened beyond the violation of criminal laws to include status offenses, such as incorrigibility, running away, truancy, 

and, in some states, waywardness (or immorality).29 Reflecting the notion that 

girls were more vulnerable and in need of protection than boys (or perhaps that girls 

were more innocent in character and less blameworthy), some of the early status 

offender laws granted longer jurisdiction over girls than over boys. For example, 

New York’s Persons in Need of Services (PINS) law provided jurisdiction over 

girls until age eighteen and over boys until age sixteen.30 Although state courts 

struck down much of this gender inequality in the language of status offense laws in 

26. Id. 

27. See BARBARA M. BRENZEL, DAUGHTERS OF THE STATE: A SOCIAL PORTRAIT OF THE 

FIRST REFORM SCHOOL FOR GIRLS IN NORTH AMERICA, 1856–1905, at 38–41 (1983); ANNE 

MEIS KNUPFER, REFORM AND RESISTANCE: GENDER, DELINQUENCY, AND AMERICA’S FIRST 

JUVENILE COURT 79–98 (2001); Lisa Pasko, Damaged Daughters: The History of Girls’ Sexuality and 

the Juvenile Justice System, 100 J. CRIM.L. & CRIMINOLOGY 1099, 1101–05 (2010). 

28. See Pasko, supra note 27, at 1101. The focus and double standard with respect to girls’ sexuality is still 

present in juvenile justice. One example is the inconsistent treatment of girls who have been commercially 

sexually exploited. See infra Part II.C. 

29. See BARRY C. FELD, CASES AND MATERIALS ON JUVENILE JUSTICE ADMINISTRATION 132–34 

(3d ed. 2009). Modern status offenses include underage drinking, curfew laws, and others that define 

crimes only for minors. These laws stand alone and are typically not components of comprehensive 

status offender schemes such as the New York Persons in Need of Services (PINS) law, 1962 N.Y. 

Laws 3106–07 (codified as amended at N.Y. FAM. CT. ACT § 711–718 (McKinney 2010), and the 

Massachusetts Child in Need of Services (CHINS) law, MASS. GEN.LAWS ANN. ch. 119, § 39E–J 

(LexisNexis 2009 & Supp. 2012). 

30. 1962 N.Y. Laws 3106–07. 
Justice for Girls 1591 

the 1970s,31 today we continue to see gender bias in the enforcement of status 

offense laws. 

The federal Deinstitutionalization of Status Offender (DSO) mandate 

included in the JJDP Act of 197432 targets the problem of the incarceration of girls 

in the name of protection. The DSO mandate prohibits states from confining 

status offenders in locked facilities such as those used for delinquent youth.33 The 

hearings that led up to the Act’s passage reflected the concern that states had criminalized “social and adjustment problems” by confining these youth, many of them 

girls, alongside juveniles who had committed serious crimes.34 But states struggled 

to comply with the DSO mandate. A 1977 General Accounting Office (GAO) 

report documented states’ general failure to remove status offenders from secure 

facilities, noting that “[t]he situation is worse for girls than for boys.”35 At that time, 

70 percent of all girls in juvenile detention and correctional facilities were status 

offenders as compared to 20 percent of boys.36 The GAO reported that states’ 

failures to comply were the result of (1) state laws and practices that conflicted with 

the DSO mandate; (2) inadequate alternative services to deal with status offenders 

outside of detention; and (3) inadequate monitoring systems to determine compliance, including inadequate data collection by states.37

In 1980, Congress responded to state pressure and passed an exception to the 

DSO mandate, which allowed secure confinement of status offenders for violating 

a valid court order (VCO).38 This exception is still in effect but has been the 

subject of ongoing discussion. States continued to detain status-offending girls by 

bootstrapping delinquency onto status offenses. This occurs either by finding girls 

in violation of probation conditions imposed for their status offenses or by charging 

a status offender with a minor crime in order to relabel her conduct as delinquent. 

Senate Bill 678, which passed the Senate Judiciary Committee in 2009 but has 

31. See, e.g., Patricia A. v. City of New York, 286 N.E.2d 432, 435 (N.Y. 1972). Though it was found 

unconstitutional in 1972, the law was not officially amended until 2000. 2000 N.Y. Laws 3418. 

32. 42 U.S.C. § 5633(a)(12)(A) (2006). 

33. Id.

34. 120 CONG.REC. 25,156 (1974). 

35. Deinstitutionalization of Status Offenders: Hearing Before the Subcomm. on Juvenile Delinquency of the S. 

Comm. on the Judiciary, 95th Cong. 2 (1977) (statement of William J. Anderson, Deputy Dir., Gen. 

Gov’t Div.). 

36. Id.

37. COMPTROLLER GEN. OF THE U.S., GGD-78-37, REMOVING STATUS OFFENDERS FROM 

SECURE FACILITIES: FEDERAL LEADERSHIP AND GUIDANCE ARE NEEDED (1978). 

38. JJDP Act, 42 U.S.C. § 5633(a)(11)(A)(ii); Robert (Bobby) Scott, Afterword of JUVENILE JUSTICE:

ADVANCING RESEARCH, POLICY, AND PRACTICE 527, 528 (Francine T. Sherman & Francine 

H. Jacobs eds., 2011). 
1592 59 UCLA L. REV. 1584 (2012) 

not become law, would have repealed the VCO exception.39 Supporters of repeal 

argued that the ability to detain status offenders allows states to avoid developing 

interventions to assist chaotic families and youth who are struggling in their homes 

and schools.40

In the early 1990s, federal emphasis shifted from attempting to address bias 

against girls in the juvenile justice and status offender systems, to encouraging 

programming designed and delivered to meet girls’ needs.41 The 1992 reauthorization of the JJDP Act required states to analyze their juvenile justice systems’ 

provision of “gender-specific services” to female offenders and plan the delivery 

of gender-specific treatment and prevention services.42 This focus on gender-specific 

programming (later renamed “gender-responsive” programming) was supported 

by the availability of Challenge E funds, to aid jurisdictions in providing these 

programs to girls in their delinquency systems.43 The widespread use of Challenge 

E funds by states demonstrated significant local interest in as well as concern over 

girls not being well served by existing juvenile justice programming.44

Federal efforts have continued to encourage states to provide effective genderresponsive programming for girls. However, the Girls Study Group, established 

by the Office of Juvenile Justice and Delinquency Prevention (OJJDP) in 2004 

and the National Girls Initiative, established in 2010, have also returned the focus to 

ways in which the juvenile justice process is biased against or harmful to girls. 

In 2009, the Girls Study Group disseminated important descriptive data about girls 

in the system and addressed the troubling mistaken impression that girls were 

becoming more violent.45 That analysis found that rather than signifying an overall 

increase in girls’ aggression, the increase in arrests of girls for assaults was in large 

39. Juvenile Justice and Delinquency Prevention Reauthorization Act of 2009, S. 678, 111th Cong. (2009). 

40. Meeting the Challenges Faced by Girls in the Juvenile Justice System: Hearing Before the Subcomm. on 

Healthy Families and Communities of the H. Comm. on Educ. and Labor, 111th Cong. 24–25 (2010) 

(statement of Judge Brian Huff). See generally Arthur & Waugh, supra note 6, at 558. 

41. See Act of Nov. 4, 1992, Pub. L. No. 102-586, 106 Stat. 4982 (amending the JJDP Act, 42 U.S.C. 

§§ 5601–5784 (2006)). The JJDP Act reauthorization of 1992 requires the GAO to study gender 

bias in state justice systems’ handling of status offenders. U.S. GEN. ACCOUNTING OFFICE,

GAO/GGD-95-56, JUVENILE JUSTICE: MINIMAL GENDER BIAS OCCURRED IN PROCESSING 

NONCRIMINAL JUVENILES 1 (1995). 

42. 42 U.S.C. § 5633(a)(7)(B). 

43. See Biden, supra note 13, at 41–42; Meda Chesney-Lind & Katherine Irwin, Still the “Best Place to 

Conquer Girls”: Girls and the Juvenile Justice System, in WOMEN,LAW, AND SOCIAL CONTROL 271, 

286–88 (Alida V. Merlo & Joycelyn M. Pollock eds., 2d ed. 2006). 

44. Chesney-Lind & Irwin, supra note 43, at 286–88. 

45. See THE DELINQUENT GIRL (Margaret A. Zahn ed., 2009) (compiling research performed by 

members of the Girls Study Group); MARGARET A. ZAHN ET AL., OFFICE OF JUVENILE JUSTICE 

& DELINQUENCY PREVENTION,VIOLENCE BY TEENAGE GIRLS:TRENDS AND CONTEXT (2008). 
Justice for Girls 1593 

part the result of changed laws and law enforcement practices around domestic violence. These changes had a particular impact on girls because much of their assaultive behavior occurs in the home and among family members, such as fighting 

between girls and their mothers or among siblings.46 A decade ago, these cases 

would have resulted in referrals to family services, but today these girls are arrested, 

charged with assault, and often detained.47 Charging girls for behavior arising from 

family chaos sweeps girls with trauma histories and chaotic families into secure juvenile justice confinement.48 However, unlike with a traditional status offense, these girls 

potentially face the collateral consequences that accompany delinquency findings.49

The Girls Study Group also continued federal efforts to promote genderresponsive programming. One of the ongoing problems in the field, however, has 

been confusion about what gender-responsive programming means in practice. 

“Painting it Pink is Not Enough” is a catch phrase for those promoting genderresponsive approaches but provides little in terms of content for juvenile justice and 

community programs to follow. Gender-responsive approaches consider the particular 

situations, developmental characteristics, and life circumstances of girls in the justice 

system, including their experiences as females in the justice system itself. Genderresponsive approaches also consider the trauma backgrounds common among girls 

in the justice system and the ways in which social expectations for girls and the 

resulting roles girls play in their families and communities affect their development 

and behavior.50 Although there are a number of formulations of gender-responsive 

46. See infra Part II.B. 

47. ZAHN ET AL., supra note 45, at 6–7. 

48. See SHERMAN,MENDEL & IRVINE, supra note 14 (reviewing detention system data and describing 

an approach to data analysis to help systems understand why girls are detained and how to reduce their 

detention); see also Jamie Edwards, A Lesson in Unintended Consequences: How Juvenile Justice and

Domestic Violence Reforms Harm Girls in Violent Family Situations (And How to Help Them), 13 U. PA.

J.L. & SOC. CHANGE 219 (2009). 

49. See, e.g., TEX. PENAL CODE ANN. § 12.42(f) (West 2011) (stating that a juvenile adjudication for a 

felony offense that results in commitment to the Texas Youth Commission is deemed a “final felony 

conviction” for purposes of future enhanced sentencing); In re Justin V., 797 N.W.2d 755, 765–66 

(Neb. Ct. App. 2011) (finding that the collateral consequences exception to the mootness doctrine 

was applicable because the juvenile would be subject to various collateral consequences as result of 

his juvenile record); 32 C.F.R. § 96.6 (2011) (authorizing the military to consider an applicant’s juvenile 

record); Kristin Henning, Eroding Confidentiality in Delinquency Proceedings: Should Schools and Public 

Housing Authorities Be Notified?, 79 N.Y.U. L. REV. 520, 570, 577–79 (2004) (finding that some 

housing authorities investigate the criminal histories of juveniles to determine housing eligibility of 

their families); Michael Pinard, The Logistical and Ethical Difficulties of Informing Juveniles About the 

Collateral Consequences of Adjudications, 6 NEV.L.J. 1111, 1114–15 (2006). 

50. See Francine T. Sherman & Jessica H. Greenstone, The Role of Gender In Youth Systems: Grace’s Story, 

in JUVENILE JUSTICE, supra note 38, at 131, 137–39; see also What Does Gender-Specific Programming 

Look Like in Practice?, in OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION,

GUIDING PRINCIPLES FOR PROMISING FEMALE PROGRAMMING: AN INVENTORY OF BEST 
1594 59 UCLA L. REV. 1584 (2012) 

elements, there is consensus across the literature that to be gender responsive, a 

program or system should (1) provide a safe space, both physically and psychologically; (2) promote relationships; and (3) share power with girls and across the 

multiple systems that work with girls.51

The study group also worked to improve the science around risk and needs 

assessment and program evaluation for girls. Critics argued that efforts by the Girls 

Study Group to promote evidence-based practices in girls programs raised the bar 

too high for those programs that were unable to mount the evaluations necessary to 

classify as an evidence-based practice, and that the study group missed local innovation and success among smaller, community-based organizations.52 The implicit 

critique was that, as a result, OJJDP, through the Girls Study Group, was not providing essential, practical evaluation support to the field. Beginning in 2010, the 

National Girls Initiative, as the successor to the Girls Study Group, is making an 

effort to respond to the needs of the field by blending science with knowledge developed in practice as they implement their agenda.53

The desire to control girls’ misbehavior that animated the early history of girls 

in the juvenile justice system remains today. Through strict enforcement of technical probation and parole violations (violations of the conditions of probation and 

parole, rather than new crimes), liberal use of warrants, and increased charging of 

misdemeanor and home-based offenses,54 girls with significant experiences of trauma 

who pose little threat to public safety continue to populate secure detention and 

postadjudication facilities. Meanwhile, states continue to struggle as female status 

offenders escalate through a system that is not designed to encourage their development into productive adulthood. Girls charged with assaults and domestic battery 

arising from family violence are, in effect, the new status offender, whose chaotic 

PRACTICES (1998), available at http://www.ojjdp.gov/pubs/principles/ch2_6.html; Barbara E. 

Bloom & Stephanie S. Covington, Gender-Specific Programming for Female Offenders: What 

Is It and Why Is It Important? (Nov. 1998) (unpublished manuscript), available at http://www.stephanie 

covington.com/pdfs/13.pdf; Barbara E. Bloom & Stephanie S. Covington, Effective GenderResponsive Interventions in Juvenile Justice: Addressing the Lives of Delinquent Girls (Nov. 2001) 

(unpublished manuscript), available at http://centerforgenderandjustice.org/pdf/7.pdf. 

51. Sherman & Greenstone, supra note 50, at 137–39. 

52. See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-09-721R, JUVENILE JUSTICE: TECHNICAL 

ASSISTANCE AND BETTER DEFINED EVALUATION PLANS WILL HELP TO IMPROVE GIRLS’

DELINQUENCY PROGRAMS (2009), available at http://www.gao.gov/assets/100/96317.pdf; see also

infra notes 241–245 and accompanying text. 

53. Telephone Interview With Lawanda Revoira, Director, NCCD Ctr. on Women and Girls (Feb. 

7, 2012). 

54. See infra notes 108–114 and accompanying text. 
Justice for Girls 1595 

family situations and human services needs form the backdrop for entry into the 

juvenile justice system. 

There has been significantly heightened awareness since 1992 that girls are 

a subpopulation within juvenile justice requiring specific research, policies, and 

programs. However, federal leadership has been inconsistent and issue-specific; it has 

focused, for example, on status offenders or commercial sexual exploitation, allowing 

the larger systemic and societal issues to remain despite a significant increase in 

research and understanding of girls’ needs and the sorts of interventions that are 

likely to be successful. 

II. CHILD DEVELOPMENT AND JUVENILE JUSTICE POLICY

Throughout much of its history, juvenile justice has been remarkably disconnected from the theory and research on child development. But in 2005, the U.S. 

Supreme Court shifted the direction of juvenile justice by making a critical link 

between jurisprudence and developmental research. In Roper v. Simmons,

55 which 

concerned the application of the death penalty to defendants under the age of 

eighteen, the Court found that juveniles are developmentally different from adults 

in significant ways and that these developmental differences, “as any parent knows 

and as the scientific and sociological studies . . . confirm,” prevent juveniles from 

being classified as the most culpable criminals.56 Reasoning that juveniles (1) lack 

maturity and have an underdeveloped sense of responsibility; (2) are more vulnerable to outside pressure; and (3) have characters and personalities that are not fully 

formed,57 the Court found that juveniles could never be as culpable as adults. Based 

in part on these developmental findings, the Supreme Court held the death penalty 

unconstitutional for any individual under the age of eighteen.58

In 2010, the Supreme Court reiterated Roper’s developmental findings in 

Graham v. Florida,

59 saying that in the intervening years the developmental research 

had only been strengthened.60 The Court went on to say that in addition to these 

developmental differences, there was evidence that juveniles’ brains develop 

55. 543 U.S. 551 (2005). 

56. Id. at 569. 

57. Id. at 569–70. 

58. Id. at 570–71, 578–79. 

59. 130 S. Ct. 2011 (2010). 

60. Id. at 2026. 
1596 59 UCLA L. REV. 1584 (2012) 

throughout adolescence, which influences their decisionmaking.61 The Court then 

extended what (until then) had been analysis applied only to death penalty jurisprudence62 to find sentences of life without the possibility of parole unconstitutional 

when imposed on juveniles for nonhomicide offenses.63 Rather than taking a narrow 

approach, the Court held that the combination of a nonhomicide offense, a sentence 

of life without the possibility of parole, and minority status categorically violated the 

Eighth Amendment’s prohibition against cruel and unusual punishment.64 

In the years following Graham, lower courts explored the reach of its holding, 

considering whether juvenile life without parole is constitutional under federal 

and state constitutions for felony murder,65 accomplice cases,66 and homicide cases 

for young juveniles.67 Most recently, in Miller v. Alabama and Jackson v. Hobbs,

68

the Supreme Court further extended Roper and Graham. In Miller and Jackson the 

Court held unconstitutional mandatory sentences of life without parole in juvenile 

homicide cases.69 While the Court did not find sentences of life without parole categorically unconstitutional for juveniles, it held that a life without parole sentence 

can only be imposed after the sentencer takes into account “how children are different, 

and how those differences counsel against irrevocably sentencing them to a lifetime 

in prison.”70

Developmental notions are making their way into areas other than juvenile 

sentencing as well. In state and federal courts, there is an increasing focus on 

61. Id.

62. Id. at 2022–23, 2030. 

63. Id. at 2034. 

64. Id. at 2030–34; see also Sally Terry Green, Realistic Opportunity for Release Equals Rehabilitation: How 

the States Must Provide Meaningful Opportunity for Release, 16 BERKELEY J.CRIM.L. 1, 8–10 (2011). 

65. See, e.g., United States v. Williams, 636 F.3d 1229 (9th Cir. 2011); Jones v. McQuiggin, No. 

2:11-cv-188, 2011 WL 2745827 (W.D. Mich. July 12, 2011); People v. Perez, No. G042811, 2011 

WL 521319 (Cal. Ct. App. Feb. 15, 2011); People v. Chappell, No. B214616, 2011 WL 105652 

(Cal. Ct. App. Jan. 13, 2011); People v. Hernandez, No. B218507, 2010 WL 2598265 (Cal. Ct. 

App. June 30, 2010); State v. Uzzelle, No. COA10-600, 2011 WL 705152 (N.C. Ct. App. Mar. 

1, 2011). 

66. See, e.g., Delatorre v. Haws, No. 2:09-cv-1974-TJB, 2011 WL 2471027 (E.D. Cal. June 20, 2011); 

Cox v. State, No. CR 00-345, 2011 WL 737307 (Ark. Mar. 3, 2011); Hernandez, 2010 WL 

2598265; People v. Donald, No. A121820, 2010 WL 2594940 (Cal. Ct. App. June 29, 2010). 

67. See, e.g., Miller v. State, 63 So. 3d 676 (Ala. Crim. App. 2010) (holding that a sentence of life without 

the possibility of parole was unconstitutional when imposed on a fourteen-year-old boy convicted 

of murder). 

68. Miller v. Alabama, No. 10-9646 (U.S. June 25, 2012). The Miller v. Alabama opinion decides both 

that case and Jackson v. Hobbs. Id., slip op. at 1 n.*. 

69. Id., slip op. at 27. 

70. Id., slip op. at 17. 
Justice for Girls 1597 

juvenile competency to stand trial,71 waive counsel,72 and confess when 

interrogated.73 In 2011, in J.D.B. v. North Carolina,

74 the Supreme Court took the 

developmental findings articulated in Roper and Graham as a given and held that 

age, as long as it is known or should be known to police, must be considered as an 

objective factor in determining whether a juvenile is in custody and therefore 

whether the police are required to provide Miranda warnings.75 In reiterating 

Roper’s and Graham’s developmental findings the Court noted that history is 

“‘replete with laws and judicial recognition’ that children cannot be viewed simply 

as miniature adults.”76

In the last twenty years, juvenile justice systems have also incorporated consideration of child development more frankly into their policies and practices.77 

Juvenile justice systems are using principles of restorative justice78 and more recently, 

positive youth development79 to frame probation services, dispositions, and the 

structure of juvenile commitment after adjudication. Innovations like TeamChild, 

a Seattle-based nonprofit organization,80 recognize that youth in the justice system, 

like all youth, are more likely to succeed when they are well educated and so provide 

representation to delinquency-involved youth on matters related to education, 

healthcare, and housing in partnership with their delinquency defense.81 Similarly, 

71. See, e.g., Tyrone B. v. Superior Court, 78 Cal. Rptr. 3d 569, 570–71 (Ct. App. 2008); State v. M.C., 

60 So. 3d 1264, 1265 (La. Ct. App. 2011) (holding that a juvenile was not competent to stand trial 

after ordering a competency hearing); In re T.S., 798 N.W.2d 649, 654–55 (N.D. 2011). 

72. See, e.g., A.S. v. State, 62 So. 3d 695, 697 (Fla. Dist. Ct. App. 2011) (holding that the trial court committed “fundamental error” when it failed to inquire thoroughly as to whether the juvenile understood 

and had the capacity to intelligently choose to waive counsel and to obtain the required verified 

written waiver); L.D.S.J. v. State, 14 So. 3d 289, 291 (Fla. Dist. Ct. App. 2009) (holding that “the 

trial court had an obligation to ensure [that a juvenile defendant] intelligently and voluntarily waived 

his right to counsel”); In re C.S., 874 N.E.2d 1177, 1194 (Ohio 2007). 

73. See, e.g., In re A.S., 999 A.2d 1136, 1138 (N.J. 2010). 

74. 131 S. Ct. 2394 (2011). 

75. Id. at 2408. J.D.B. was thirteen years old. Id. at 2399. 

76. Id. at 2404 (quoting Eddings v. Oklahoma, 455 U.S. 104, 115–16 (1982)). 

77. Cf. JEFFREY BUTTS,SUSAN MAYER &GRETCHEN RUTH,CHAPIN HALL CTR. FOR CHILDREN,

ISSUE BRIEF #105: FOCUSING JUVENILE JUSTICE ON POSITIVE YOUTH DEVELOPMENT 4 

(2005); Richard M. Lerner et al., A Vision for the American Juvenile Justice System: The Positive Youth 

Development Perspective, in JUVENILE JUSTICE, supra note 38, at 92. 

78. See Marlyce Nuzum, Summaries of State Restorative Justice Legislation, STOPVIOLENCE,

http://www.stopviolence.com/restorative/rjleg-detail.htm (last visited July 9, 2012). 

79. See supra note 77. 

80. See TEAMCHILD, http://teamchild.org (last visited July 9, 2012). 

81. TeamChild focuses on changing the way the juvenile system operates by addressing the oftenunaddressed underlying causes of juvenile delinquency. The organization provides civil legal aid, such 

as education advocacy, to youth involved in the juvenile justice system. It serves youth ages twelve to 

eighteen who are experiencing school failure and exclusion, conflict in the home, mental illness, 

substance abuse, delinquency, and homelessness by advocating for children’s rights to basic services 
1598 59 UCLA L. REV. 1584 (2012) 

in Massachusetts, the statewide Youth Advocacy Department has developed a 

nationally recognized model of juvenile defense based on principles of positive 

youth development.82

Recently, this developmental approach has found support in federally funded 

programs that are increasingly collaborative and have youth development at their 

core.83 The federal Defending Childhood initiative is one example. In 2010, the 

federal government provided grants to eight demonstration projects to develop 

community-based programming through broad local collaborations to address the 

impact on children of exposure to violence. Using a public health model with a 

focus on prevention, Defending Childhood collaborations cross a number of sectors 

including health, education, justice, and law enforcement.84 Collaborative programs 

such as this, that are funded across federal agencies, acknowledge in their organization and service delivery that youth are growing and flexible, that they both 

influence and are influenced by their environments, and that family, community, 

and society shape their growth and provide opportunities to promote their positive development. 

A. What Does This Developmental Focus Mean for Girls? 

As of 2008, only 2.6 percent of those sentenced to life without parole as juveniles were female,85 so few are direct beneficiaries of the rulings in Graham, Miller,

and Jackson. Indeed, the majority of girls in the juvenile system are there for status 

and misdemeanor offenses and violations of probation.86 However, the Supreme 

so that they can create a foundation for long-term stability. See About Us, TEAMCHILD,http://teamchild.org/ 

index.php/about (last visited July 9, 2012); TeamChild Description, SEATTLE FOUND. (Dec. 10,

2010), http://www.seattlefoundation.org/npos/Pages/TeamChild.aspx. 

82. See PATRICIA PURITZ & WENDY WAN LONG SHANG, OFFICE OF JUVENILE JUSTICE &

DELINQUENCY PREVENTION,NCJ 171151,INNOVATIVE APPROACHES TO JUVENILE INDIGENT 

DEFENSE 4 (1998), available at https://www.ncjrs.gov/pdffiles/171151.pdf. The Massachusetts 

Youth Advocacy Department was formerly called Youth Advocacy Project (YAP). 

83. See, e.g., DEFENDING CHILDHOOD, http://www.justice.gov/defendingchildhood (last visited July 9, 

2012); NAT’L CHILD TRAUMATIC STRESS NETWORK, http://www.nctsn.org (last visited July 

9, 2012). 

84. About the Initiative, DEFENDING CHILDHOOD, http://www.justice.gov/defendingchildhood/aboutinitiative.html (last visited July 9, 2012). 

85. HUMAN RIGHTS WATCH, THE REST OF THEIR LIVES: LIFE WITHOUT PAROLE FOR 

YOUTH OFFENDERS IN THE UNITED STATES IN 2008, at 2 (2008). 

86. In 2008, 64 percent of girls’ arrests were for six nonviolent offense categories: running away, loitering 

or violating curfew, liquor law violations, disorderly conduct, and a catch-all category consisting of 

all non-indexed non-traffic offenses, which were primarily low-level misdemeanors. Girls accounted 

for 31 percent of arrests for curfew violations and loitering, 33 percent of disorderly conduct arrests, 

44 percent of arrests for larceny and theft; 56 percent of arrests for running away and 76 percent of 
Justice for Girls 1599 

Court’s developmental findings and the movement to incorporate child development 

into juvenile justice policies and practices have particular application to girls in the 

justice system. Both the behaviors that result in girls’ arrests and the structural 

mechanisms that pull them into the justice system for those behaviors relate to 

child development. Girls’ behaviors must be understood ecologically, as reactions 

to and in tension with the concentric circles of family, community, and society in girls’ 

lives, and it is that ecological framing that provides more nuanced and developmentally informed responses. 

Running away is one example of a relatively common behavior among 

system-involved girls. Girls often exhibit this behavior in response to their environments, but it drives many girls into juvenile systems nonetheless.87 Both boys 

and girls run away from home, but studies show that 75 percent of runaways are 

female, and for girls, running away is disproportionately a trigger for system 

involvement.88 In 2009, girls made up 55 percent of youth arrested for running 

away;89 prostitution was the only other crime for which girls made up the majority of 

arrests.90 Moreover, arrest statistics undercount the incidence of running away 

because statistics on runaways may not include girls arrested or brought into custody 

for absconding, violations of probation, or for warrants, yet these girls are often also 

running away. Nationally, juvenile justice systems struggle to craft gender-responsive 

strategies to deal with runaway girls. Tough sanctions for runaway girls reflect 

fear that they will become victims, awareness of the connection between running 

away and commercial sexual exploitation,91 and frustration when girls disobey courtmandated rules. While fears about the safety of runaway girls are legitimate, locked 

arrests for prostitution and commercialized vice. CHARLES PUZZANCHERA, OFFICE OF JUVENILE 

JUSTICE & DELINQUENCY PREVENTION, NCJ 228479, JUVENILE ARRESTS 2008, at 3 (2009), 

available at http://www.ncjrs.gov/pdffiles1/ojjdp/228479.pdf. 

87. See Taylor-Thompson, supra note 17, at 1139. 

88. See Homeless and Runaway Youth, NAT’L CONF. STATE LEGISLATURES, http://www.ncsl.org/issuesresearch/human-services/homeless-and-runaway-youth.aspx (last updated Apr. 2010). 

89. CHARLES PUZZANCHERA & BENJAMIN ADAMS, OFFICE OF JUVENILE JUSTICE &

DELINQUENCY PREVENTION, NCJ 236477, JUVENILE ARRESTS 2009, at 4 (2011), available at 

http://www.ojjdp.gov/pubs/236477.pdf. 

90. Id. In 2009, girls accounted for 78 percent of arrests for prostitution or commercialized vice. Id.

91. That connection has led the Dallas Police Department to form a “High Risk Victims Unit,” which 

identifies high-risk girls and targets them for intervention as likely victims of commercial sexual 

exploitation. See Sgt. Byron Fassett, SECOND ANNUAL COLLABORATIVE TO COMBAT HUMAN 

TRAFFICKING, http://uniteandcollaborate.com/sgt.-byron-fassett.html (last visited July 9, 2012); 

see also infra notes 130–171 and accompanying text. 
1600 59 UCLA L. REV. 1584 (2012) 

detention and incarceration are not a remedy, and the possibility of detention can 

serve as a disincentive to girls who may otherwise want to return home.92

The mechanics of the juvenile justice process—use of warrants, charging of 

technical violations of probation, VCO provisions,93 and policies preventing runaway 

girls from returning to their foster homes94 make it easy to sanction runaway girls 

with detention and even commitment. In their 1990 study of contempt sanctions 

among status offenders in Florida, Donna Bishop and Charles Frazier confirmed 

this gender bias in sanctions. Their study sought to determine whether unequal 

treatment of male and female status offenders and delinquents persisted after JJDP 

Act reforms. They studied the records of three years of status and nonstatus offense 

referrals in Florida at several stages of the juvenile justice process from intake through 

disposition.95 They found that male status offenders had a 37.6 percent chance of 

formal court referral that increased to 45.7 percent if found in contempt, while 

female status offenders had an initial 31.2 percent chance of formal referral, which 

increased to 69.7 percent for contempt.96 For repeat status offenders facing possible 

incarceration, the bias was even more glaring—male repeat status offenders had a 

3.9 percent chance of incarceration that increased to 4.4 percent with contempt, 

while female repeat status offenders had a 1.8 percent chance of incarceration, which 

increased to 63.2 percent if found in contempt.97

Girls recognize that running away is a behavior that pushes them deeper into 

the justice system and makes it difficult for many girls to move beyond formal 

probation supervision prior to reaching the age of majority. Sadly, these escalating 

sanctions for running away miss the reasons girls run, and consequently, miss 

opportunities to work with girls and their families to resolve these underlying issues. 

A more developmentally informed juvenile justice system would focus on identifying 

those reasons and ways to address them, rather than focusing on accountability for 

each run. 

Like running away, trauma is related to girls’ development and triggers their 

juvenile justice involvement. Trauma, prevalent among girls in the justice system, 

explains and influences girls’ behaviors and drives girls into the system through 

92. I, like other attorneys, have represented girls caught in this catch-22: They run away from state custody and find life on the run boring and scary. Although they want to return to their communities 

to attend school and be near their families, they do not because they know they will initially be 

locked in detention and they fear that once in detention they will have difficulty getting released. 

93. See supra notes 38–40 and accompanying text. 

94. See infra notes 104–106 and accompanying text. 

95. Bishop & Frazier, supra note 7, at 1168. 

96. Id. at 1181. 

97. Id. at 1183. 
Justice for Girls 1601 

structural mechanisms that are contrary to sound developmental principles. The 

Survey of Youth in Residential Placement found that 42 percent of girls and 22 

percent of boys in custody reported past physical abuse while 35 percent of girls and 

8 percent of boys reported past sexual abuse.98 For many working in the justice 

system, this seems to be a significant undercount of girls who have experienced past 

abuse. Girls in the justice system are more likely than boys to have experienced 

sexual assault, rape, or sexual harassment, and early sexual abuse is common among 

girls victimized by commercial sexual exploitation.99 Studies show that a history 

of abuse is a more powerful predictor of delinquent behavior for girls than it is 

for boys.100 Girls who have experienced childhood trauma may suffer from posttraumatic stress disorder and other mental health disorders such as anxiety or 

depression, and studies show that up to 81 percent of girls in the juvenile justice 

system suffer from one or more mental health disorders compared with up to 68.5 

percent of boys.101

A trauma history is not only a background factor for girls in the juvenile 

justice system, but it can actually drive girls into the system.102 As a result of their 

trauma histories, girls in juvenile justice systems are typically known to the child 

protection, family services, or mental health system long before they are involved 

98. ANDREA J.SEDLAK &KARLA S.MCPHERSON,OFFICE OF JUVENILE JUSTICE &DELINQUENCY 

PREVENTION, NCJ 236477, YOUTH’S NEEDS AND SERVICES: FINDINGS FROM THE SURVEY OF 

YOUTH IN RESIDENTIAL PLACEMENT 6, available at https://www.ncjrs.gov/pdffiles1/ojjdp/227728.pdf. 

99. See ZAHN ET AL., supra note 45, at 12; MARGARET A. ZAHN ET AL., OFFICE OF JUVENILE 

JUSTICE & DELINQUENCY PREVENTION, NCJ 223434, THE GIRLS STUDY GROUP—CHARTING 

THE WAY TO DELINQUENCY PREVENTION FOR GIRLS 4 (2008), available at http://www.ncjrs.gov/ 

pdffiles1/ojjdp/223434.pdf. 

100. Elizabeth Cauffman, Understanding the Female Offender, JUV.JUST.,Fall 2008, at 119, 129–30 (2008). 

101. Paula Braverman & Robert Morris, The Health of Youth in the Juvenile Justice System, in JUVENILE 

JUSTICE, supra note 38, at 44; see JENNIE L. SHUFELT & JOSEPH J. COCOZZA, NAT’L CTR.

FOR MENTAL HEALTH & JUVENILE JUSTICE, RESEARCH AND PROGRAM BRIEF: YOUTH 

WITH MENTAL HEALTH DISORDERS IN THE JUVENILE JUSTICE SYSTEM: RESULTS FROM 

THE MULTI-STATE PREVALENCE STUDY (2006), available at http://www.ncmhjj.com/pdfs/ 

publications/PrevalenceRPB.pdf; Meda Chesney-Lind & Scott K. Okamoto, Gender Matters: 

Patterns in Girls’ Delinquency and Gender Responsive Programming, 1 J.FORENSIC PSYCHOL.PRAC., 

no. 3, 2001, at 1; Cindy S. Lederman et al., Characteristics of Adolescent Females in Juvenile 

Detention, 27 INT’L J.L. & PSYCHIATRY 321, 327 (2004) (finding 78 percent experience mental 

health issues); Linda A. Teplin et al., Psychiatric Disorders in Youth in Juvenile Detention, 59 ARCHIVES 

GEN.PSYCHIATRY 1133, 1136 tbl.2 (2002) (finding 73.8 percent of females suffered from a diagnosed 

mental disorder); Gail A. Wasserman et al., Gender Differences in Psychiatric Disorders at Juvenile

Probation Intake, 95 AM.J.PUB.HEALTH 131, 133 tbl.2 (2005) (finding that 49.5 percent of surveyed 

females in the juvenile justice system suffer from a disorder). 

102. See, e.g., FRANCINE T.SHERMAN,ANNIE E.CASEY FOUND.,PATHWAYS TO JUVENILE DETENTION 

REFORM: DETENTION REFORM AND GIRLS 21–22 (2005); Chesney-Lind & Okamoto, supra

note 101. 
1602 59 UCLA L. REV. 1584 (2012) 

in delinquency.103 Girls in foster placement are more likely to enter the 

detention system than nonfoster girls as a result of histories of multiple foster home 

placements,104 child protection system policies that penalize girls for running 

away,105 and inadequate communication across the juvenile justice and child protection systems. All these things contribute to a fragmented personal history and the 

trauma that stems from consistent disruption.106 Moreover, the practice of charging 

girls with minor delinquency when they are viewed as too difficult to handle in 

the child protection system is longstanding.107 Given all of this, many girls in the 

delinquency system are essentially formed by the child protection system. 

Two of the biggest factors currently driving girls into detention and 

incarceration—domestic violence and commercial sexual exploitation—are closely 

linked to trauma and need to be understood and legally framed with an eye to 

child development. The failure to approach these issues with a developmental frame 

has resulted in many girls being driven into the justice system to their detriment. 

Placing girls who are victims of domestic violence and commercial sexual exploitation in secure detention and incarceration is a modern example of the gender bias 

that has animated the juvenile justice system since its beginning. 

B. Domestic Violence 

From 1996 to 2005, girls’ arrests for assault increased more or decreased less 

than boys’ arrests. Girls’ arrests for simple assault increased 24 percent as compared 

with a 4.1 percent decrease in simple assault arrests for boys, and girls’ arrests for 

aggravated assault declined 5.4 percent as compared with a 23.4 percent decline 

for boys.108 This data, and the perception of girls’ increased violence that surrounded 

it, fuelled a media cry that girls were becoming more violent and prompted researchers 

to examine the sources of girls’ assault arrests.109

103. See, e.g., Sherman & Greenstone, supra note 51. 

104. SHERMAN, supra note 102, at 19 (citing DYLAN CONGER & TIMOTHY ROSS, VERA INST. OF 

JUSTICE, REDUCING THE FOSTER CARE BIAS IN JUVENILE DETENTION DECISIONS: THE 

IMPACT OF PROJECT CONFIRM (2001)). 

105. See Dylan Conger & Tim Ross, Project Confirm: An Outcome Evaluation of a Program for Children in 

the Child Welfare and Juvenile Justice Systems, 4 YOUTH VIOLENCE & JUV. JUST. 97, 109 (2006); 

Timothy Ross & Dylan Conger, Bridging Child Welfare and Juvenile Justice: Preventing Unnecessary 

Detention of Foster Children, 81 CHILD WELFARE 471, 493 (2002). 

106. See supra note 105. 

107. MEDA CHESNEY-LIND & LISA PASKO, THE FEMALE OFFENDER: GIRLS,WOMEN, AND CRIME

12 (2d ed. 2004). 

108. ZAHN ET AL., supra note 45, at 4. 

109. Id. at 2; Darrell Steffensmeier et al., An Assessment of Recent Trends in Girls’ Violence Using Diverse 

Longitudinal Sources: Is the Gender Gap Closing?, 43 CRIMINOLOGY 355, 356 (2005). 
Justice for Girls 1603 

Researchers explained the rise in girls’ assault arrests in part as a result of changed 

laws and law enforcement practices concerning domestic violence. Researchers 

concluded that the rise in girls’ arrests for assaults did not signify a rise in girls’ violent behavior, but was in part the result of mandatory arrest policies for domestic 

violence that result in police charging girls for home-based violence that might 

have previously been handled in the child protection system.110 Girls who fight 

are more likely than boys to do so at home,111 and are therefore often swept up by 

these mandatory arrest policies. Girls and young women make up 35 percent of 

juveniles who commit domestic assault;112 and 60 percent of juvenile female 

domestic assault offenders committed their violence against a parent, as compared 

with 46 percent of juvenile male domestic assault offenders.113 Arrests of girls for 

domestic assaults are particularly likely when there are other children in the home, 

making police reluctant to charge and remove an adult caretaker.114

As a result of the 1994 Violence Against Women Act’s (VAWA)115 initial 

support of mandatory arrest policies,116 many states have mandatory arrest laws or 

policies for domestic violence cases,117 and their impact—increasing arrests of 

110. ZAHN ET AL., supra note 45, at 6–7. 

111. After same-sex peers, family members are the second most common victim of girls’ violence. Id. at 11. 

112. HOWARD N. SNYDER & CARL MCCURLEY, OFFICE OF JUVENILE JUSTICE & DELINQUENCY 

PREVENTION,NCJ 219180, DOMESTIC ASSAULTS BY JUVENILE OFFENDERS 1 (2008), available 

at http://www.ncjrs.gov/pdffiles1/ojjdp/219180.pdf. 

113. Id. at 5. 

114. Francine T. Sherman, Reframing the Response: Girls in the Juvenile Justice System and Domestic Violence, 

JUV. & FAMILY JUST. TODAY, Winter 2009, at 16, 19; Barry C. Feld, Violent Girls or Relabeled 

Status Offenders? An Alternative Interpretation of the Data, 55 CRIME & DELINQ. 241 (2009). 

115. Pub. L. No. 103-322, 108 Stat. 1902 (1994). 

116. The Act provided: 

The Attorney General may make grants to eligible States, Indian tribal governments, 

or units of local government for the following purposes: 

(1) To implement mandatory arrest or proarrest programs and policies in police 

departments, including mandatory arrest programs and policies for protection order 

violations. 

Violence Against Women Act § 40231, 108 Stat. at 1932 (emphasis added). Although under the 

1994 VAWA the federal government granted money to states for both mandatory and proarrest 

policies, in the 2004 reauthorization, the term “mandatory” was completely taken out. See 42 U.S.C. 

§ 3796hh(b) (2006) (“(1) To implement proarrest programs and policies in police departments, 

including policies for protection order violations.”). 

117. States with mandatory arrests laws or policies include Alaska, Arizona, Colorado, Connecticut, 

Iowa, Kansas, Louisiana, Maine, Mississippi, Nevada, New Jersey, New York, Ohio, Oregon, 

Rhode Island, South Carolina, South Dakota, Utah, Virginia, Washington, and the District of 

Columbia. STOP ABUSIVE & VIOLENT ENV’TS, SPECIAL REPORT: ARREST POLICIES FOR 

DOMESTIC VIOLENCE 2 (2010); see David Hirschel et al., Explaining the Prevalence, Context, 

and Consequences of Dual Arrest in Intimate Partner Cases (Apr. 2007) (unpublished report), 

available at https://www.ncjrs.gov/pdffiles1/nij/grants/218355.pdf. 
1604 59 UCLA L. REV. 1584 (2012) 

girls for family-based violence—is an unintended consequence.118 The 2005 reauthorization of VAWA119 replaced support of mandatory arrest policies with support 

of proarrest policies,120 and a number of states have also adopted proarrest policies, 

in which arrest is the preferred, but not required, response.121 

Domestic violence drives girls into the juvenile justice system beyond just the 

role it plays in arrest. In addition to mandatory arrest and charging policies, some 

state laws and state or county detention policies require secure detention for individuals charged with domestic assault or battery.122 Like arrest and charging policies, 

these laws were designed to diffuse typical domestic violence situations by removing 

the batterer from the home. Because girls are disproportionately arrested in cases 

of family violence,123 these statutes result in their disproportionate detention. 

This was the case in Nevada, for example, where counties examining detention data 

found that while girls constituted around 20 percent of the overall detention 

population, they were approximately 40 percent of youth detained for domestic 

battery.124 The recognition that mandatory detention laws—which distracted 

counties from providing family services to keep girls at home—disproportionately 

affected girls resulted in changes in the Nevada law in 2007 removing mandatory 

detention for juveniles.125

For girls, fighting within their homes can be a way of gaining some control in 

their households and may be a reaction to family chaos or physical and sexual abuse. 

Not surprisingly, prior victimization in the home is common among girls who 

118. See Edwards, supra note 48, at 227, 238 (discussing the impact of the criminalization of domestic 

violence on girls whose offenses are often home based). 

119. Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 

109-162, 109 Stat. 2960. 

120. For the 2005 VAWA reauthorization, the “Grants to Encourage Arrests” provision was amended 

as such: 

(B) in paragraph (1), by— 

(i) striking “mandatory arrest . . . ”; and 

(ii) striking “mandatory arrest programs . . . ” 

Id. The current provision reads: 

(b) . . . The Attorney General may make grants to eligible States, Indian tribal 

governments State, tribal, territorial, and local courts (including juvenile courts),, [sic] 

or units of local government for the following purposes: 

(1) To implement proarrest programs and policies in police departments, including policies for protection order violations. 

42 U.S.C. § 3796hh. 

121. States with proarrest policies include: Arkansas, California, Florida, Massachusetts, Montana, North 

Dakota, and Tennessee. Hirschel et al., supra note 117, at 2. 

122. STOP ABUSIVE & VIOLENT ENV’TS, supra note 117, at 2. 

123. Supra notes 109–110 and accompanying text. 

124. Sherman, supra note 114, at 19. 

125. Id. at 19–20. 
Justice for Girls 1605 

behave violently.126 Consistent with Roper’s developmental findings, these histories 

of in-home victimization help explain girls’ in-home violence and, because they are 

victims, reduce their culpability. This reduced culpability in turn argues against 

arrest, detention, and other involvement in the juvenile justice system that carries 

damaging short- and long-term consequences.127

The arrest, detention, and juvenile justice processing of a disproportionate 

number of girls for home-based violence is a systemic problem present in many 

states that requires a systemic solution. A developmentally informed approach 

calls for redefining domestic battery and assault statutorily to exclude cases of 

intrafamily violence by minors, eliminating mandatory arrest and detention 

provisions for domestic violence by minors, or creating a presumption that homebased violence by minors be handled first through the family services system 

before a youth is charged. On the program side, it calls for better partnerships 

between juvenile justice systems and domestic violence services and networks, 

including trauma-informed approaches and empowerment models of client counseling,128 as well as better triage of juvenile justice cases to identify and divert those 

that are centrally cases of family chaos out of the delinquency system and into 

family services.129 These types of statutory and programmatic approaches would 

eliminate, or severely restrict, the criminal justice response and encourage a developmentally appropriate response to home-based trauma, rather than one that 

revictimizes girls. 

126. See ZAHN ET AL., supra note 45, at 11. 

127. See supra note 49 and accompanying text. 

128. See, e.g., Heather C. Moore, How Strong Collaboration Between Legal and Social Service Professionals 

Will Improve Outcomes for Trafficking Survivors and the Anti-trafficking Movement, 1 INTERCULTURAL 

HUM.RTS.L.REV. 157 (2006). 

129. Pima County, Arizona’s Domestic Violence Alternative Center (DVAC) is an example of this sort of 

triage and diversion effort. Consistent with national data on the trend to charge girls with domestic 

battery, girls made up 39 percent of youth referred to DVAC from 2007 to 2010. DOMESTIC 

VIOLENCE ALT. CTR., PROGRAM EVALUATION ANNUAL REPORT 2009, at 8 (2010), available 

at http://www.jdaihelpdesk.org/altdettoolsevalu/Pima County AZ Domestic Violence Alternative 

Center 2009 Evaluation.pdf (last visited July 9, 2012), cited in SHERMAN, MENDEL & IRVINE, 

supra note 14. Many referred youth (both girls and boys) had mental health complications, and their 

families had been involved with the child protection system. Id. at 14. Youth charged with domestic 

violence and referred to DVAC were less likely to be detained than youth not referred—of youth 

referred for domestic violence, only 10 percent were detained. Id. at 27. Rather, DVAC screened 

youth, and, with their families if possible, provided services addressing family violence and sometimes 

provided brief respite care for the youth. Id. at 22–23. 
1606 59 UCLA L. REV. 1584 (2012) 

C. Commercial Sexual Exploitation 

There are no definitive data on the number of girls who are commercially 

sexually exploited each year in the United States. The most cited study of the issue 

drew on data of homeless and runaway youth and estimated that approximately 

300,000 youth each year are “at risk” for commercial sexual exploitation.130 However, 

the number of youth arrested or identified by state systems is much lower. In 2009, 

girls made up 78 percent of arrests for prostitution and commercialized vice 

nationally, a total of 1092 arrests.131 Much of the incidence data are local and it 

is unclear whether they reflect the true extent of the problem. Advocates who 

work with prostituted girls say that because so many evade authorities and so much 

of the sex trade occurs indoors, the scope of the problem is hard to pinpoint. 

Moreover, because state and federal databases categorize this behavior differently—

some states arrest girls engaged in prostitution and some consider them to be 

victims—there is no one source to look to for clear data.132

How to address the problem of prostituted girls, which has been a prominent international issue since the First World Congress Against Commercial 

Sexual Exploitation of Children in 1996,133 is now a focus of U.S. federal and state 

legislative, law enforcement, and programmatic attention.134 Perhaps more than 

130. See RICHARD J. ESTES & NEIL ALAN WEINER, THE COMMERCIAL SEXUAL EXPLOITATION 

OF CHILDREN IN THE U.S.,CANADA, AND MEXICO (2001). Experts agree that it is very difficult 

to obtain accurate data defining this problem in part because cases of commercial sexual exploitation 

of children (CSEC) might be recorded in criminal justice or in child protection systems, or not at all. 

131. PUZZANCHERA & ADAMS, supra note 89, at 4. 

132. See Francine T. Sherman & Lisa Goldblatt Grace, The System Response to the Commercial Sexual 

Exploitation of Girls, in JUVENILE JUSTICE, supra note 38, at 331, 335. A coalition in Suffolk 

County, Massachusetts (Boston) identified four hundred cases of sexually exploited and high-risk 

youth between 2005 and March 2011; Connecticut, which has made an effort to track these youth, 

identified eighty-four victims from 2009 to 2012. There is also a great deal of discussion about how 

widely boys and LGBT youth are affected. See, e.g., Kristen Hinman, Lost Boys, VILLAGE VOICE

(Nov. 2, 2011), http://www.villagevoice.com/2011-11-02/news/lost-boys. 

133. See, e.g., ECPAT INT’L, GLOBAL MONITORING REPORT ON THE STATUS OF ACTION AGAINST 

COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN: UNITED STATES OF AMERICA 6 

(2006), available at http://www.ecpat.net/A4A_2005/PDF/Americas/Global_Monitoring_ReportUSA.pdf; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, 

Child Prostitution and Child Pornography, G.A. Res. 54/263, Annex II, U.N. GAOR, 54th Sess., 

Supp. No. 49, U.N. Doc. A/RES/54/263 (May 25, 2000), available at http://www2.ohchr.org/ 

english/law/pdf/crc-sale.pdf. See generally NICHOLAS D. KRISTOF & SHERYL WUDUNN, HALF 

THE SKY (2009) (describing the scope and complexity of sex trafficking internationally and the 

challenges for those assisting victims and eradicating the problem). 

134. See Wendi J. Adelson, Child Prostitute or Victim of Trafficking?, 6 U. ST. THOMAS L.J. 96, 98–111 

(2008); Megan Annitto, Consent, Coercion, and Compassion: Crafting a Commonsense Approach to 

Commercial Sexual Exploitation of Minors, 30 YALE L. & POL’Y REV. 1, 23–54 (2011); Tamar R. 
Justice for Girls 1607 

any other current issue affecting girls in the justice system, the commercial sexual 

exploitation of children (CSEC) risks causing overreaction and has the potential 

to sweep girls into the justice system in unhelpful ways. It requires law and policy 

that address the nuances of this complex social problem and that are firmly grounded 

in a full and developmental understanding of the girls involved. 

Responses to CSEC straddle the child protection and criminal justice 

systems, creating some uncomfortable results. The Trafficking Victims Protection 

Act (TVPA),135 passed in 2000 and amended in 2003, 2005, and 2008,136 clearly 

identifies minors trafficked for sex as victims and describes protections for them 

consistent with victim status.137 The TVPA notes, for example, that there is no need 

to prove “force, fraud or coercion”138 in establishing trafficking of a minor, and it 

prohibits detention of trafficked youth and adults in “facilities inappropriate to their 

status as crime victims.”139 

While many state laws addressing this issue have been amended over the last 

ten years, the focus of those changes had long been on easing the prosecution of, 

and increasing penalties for, pimps and johns.140 However, in the last five years 

there has been significant movement among states to pass comprehensive safeharbor laws. Although the details of these laws vary, they are designed to acknowledge 

that commercially sexually exploited children are victims and to provide them with an 

escape from exploitation through an alternative to criminal prosecution and 

appropriate services that will not stigmatize or punish them.141 These services may 

Birckhead, The “Youngest Profession”: Consent, Autonomy, and Prostituted Children, 88 WASH. U. L.

REV. 1055, 1067–1081, 1105–1114 (2011); Sherman & Grace, supra note 132, at 340–48. 

135. Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (codified as 

amended at 22 U.S.C. §§ 7101–7112 (2006)). 

136. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 

110-457, 122 Stat. 5044; Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. 

No. 109-164, 119 Stat. 3558 (2006); Trafficking Victims Protection Reauthorization Act of 2003, 

Pub. L. No. 108-193, 117 Stat. 2875. 

137. See 22 U.S.C. 7101(a) (“The purposes of this chapter are to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children . . . .”); Shelby 

Schwartz, Comment, Harboring Concerns: The Problematic Conceptual Reorientation of Juvenile Prostitution 

Adjudication in New York, 18 COLUM.J. GENDER & L. 235 (2008). 

138. Trafficking Victims Protection Act, 22 U.S.C. § 7102(8)(A); 42 U.S.C. § 14044e. 

139. 22 U.S.C. § 7105(c)(1)(A). 

140. Sherman & Grace, supra note 132, at 343–45. 

141. Id.
1608 59 UCLA L. REV. 1584 (2012) 

include specifically trained advocates,142 multidisciplinary treatment planning,143 and 

safe residences with specially trained staff.144

The victim label, central to the TVPA and state safe-harbor legislation, can also 

be seen as an oversimplification that is neither sufficiently nuanced nor developmentally accurate, and is disempowering to young women in need of empowerment. 

Teenage girls with experience in the sex trade argue for a harm-reduction approach 

that would allow them to care for each other safely and empower them to make 

safe choices. These girls describe their involvement as a means of survival, and so, 

on some level, a choice they are making.145 They argue that they make a choice to 

engage in prostitution (albeit a choice born of poverty and severely limited options) 

and the victim label robs them of autonomy.146 In support of the position that they 

should have greater responsibility over their own solutions, they express distrust of 

official systems and note institutional violence that they experience from police 

and hospitals, which is particularly directed toward girls of color and those seen as 

gender nonconforming.147 

Although, a harm-reduction approach for juveniles remains outside the current 

mainstream of thought and policy, recent state laws that explicitly adopt the 

conclusion that prostituted girls are victims can actually be punitive in practice. 

Rooted in a victim-based approach to CSEC, New York passed a safe-harbor 

law in 2007148 and similar comprehensive laws are on the books in Illinois,149 

142. See, e.g., MASS. GEN.LAWS ANN. ch. 119, §§ 21, 39K(a) (LexisNexis 2009 & Supp. 2012). 

143. Id. § 51D. 

144. See, e.g., Safe Harbour for Exploited Children Act, N.Y. SOC. SERV. LAW §§ 447-a to 447-b 

(McKinney 2010). 

145. The idea that women and girls are reduced to criminal and personally dangerous conduct to survive 

is not new. See, e.g., BETH E. RICHIE, UNDERSTANDING THE LINKS BETWEEN VIOLENCE 

AGAINST WOMEN AND WOMEN’S PARTICIPATION IN ILLEGAL ACTIVITY (2003), available at

http://www.ncjrs.gov/pdffiles1/nij/grants/199370.pdf; Nekima Levy-Pounds, Beaten by the System 

and Down for the Count: Why Poor Women of Color and Children Don’t Stand A Chance Against U.S. 

Drug-Sentencing Policy, 3 U. ST. THOMAS L.J. 462, 464 (2006). 

146. See Levy-Pounds, supra note 145; see also Hinman, supra note 132. 

147. See JAZEERA IMAN ET AL.,YOUNG WOMEN’S EMPOWERMENT PROJECT, GIRLS DO WHAT 

THEY HAVE TO DO TO SURVIVE: ILLUMINATING METHODS USED BY GIRLS IN THE SEX 

TRADE AND STREET ECONOMY TO FIGHT BACK AND HEAL 30 (2009). 

148. Safe Harbour for Exploited Children Act, N.Y. SOC. SERV. LAW §§ 447-a to 447-b; see also

Schwartz, supra note 137, at 237. 

149. 720 ILL.COMP. STAT.ANN. 5/11-14 (West Supp. 2012) (“[A] person under the age of 18 . . . shall 

be immune from prosecution for a prostitution offense under this Section, and shall be subject to 

the temporary protective custody provisions of Sections 2-5 and 2-6 of the Juvenile Court Act of 1987.”). 
Justice for Girls 1609 

Connecticut,150 Washington,151 and, most recently, Massachusetts.152 The 

Massachusetts law, which became effective in February 2012, draws on a number 

of these existing laws and illustrates the way in which the tension between a law 

enforcement and child welfare approach can yield developmentally questionable 

results and may lead to more girls entering the juvenile justice system. 

The Massachusetts safe-harbor law provides that a sexually exploited child 

(defined as someone under eighteen who falls under the TVPA definition, or is a 

victim of sexual servitude, or engages in specific acts covered in the criminal laws 

concerning prostitution) can be the subject of a status offense petition, which in 

Massachusetts is called Child in Need of Services (CHINS).153 The law creates a new 

CHINS category, “sexually exploited child.”154 If the youth admits or is found to 

be a sexually exploited child under the CHINS law, or found to be in need of care 

and protection under the existing law for the protection of abused or neglected 

children,155 the court can stay her arraignment under the delinquency or criminal 

law relating to prostitution or, if she has already been arraigned, impose pretrial 

probation.156 The stay continues in effect as long as the girl “substantially complies” 

with services in the child and family services system.157 The law creates a 

presumption that a CHINS or child protection petition will be filed when a youth 

is charged with a prostitution-related crime.158 In addition to these provisions, the 

Massachusetts law creates a civil cause of action for sexually exploited children,159

150. CONN. GEN. STAT.ANN. § 53a-82 (West Supp. 2012). Only a person sixteen years of age or older 

can be found guilty of prostitution under § 53a-82, and in any prosecution of a person sixteen or seventeen 

years of age for an offense under this section, there shall be a presumption that the actor was coerced 

into committing such offense. Id. § 53a-82(a), (c). 

151. WASH.REV. CODE ANN. § 13.40.070(6) (West Supp. 2012) (providing that a minor’s first offense 

shall be diverted); id. § 13.40.213 (2011) (providing that a prosecutor may divert the offense for juveniles alleged to have committed offenses of prostitution or prostitution loitering even if it would not 

be the juvenile’s first offense, as long as the county has a qualifying program for the juvenile); see also Sex 

Crimes Involving Minors Act, ch. 289, 2010 Wash. Sess. Laws 2301. 

152. An Act Relative to the Commercial Exploitation of People, 2011 Mass. Acts ch. 178. 

153. MASS. GEN.LAWS ANN. ch. 119, §§ 21, 39K, 39L (LexisNexis 2009 & Supp. 2012). 

154. Id. § 21. 

155. Id. §§ 24–26. 

156. Id. § 39L. In Massachusetts, seventeen is the age of adult criminal jurisdiction, but the CHINS law has 

jurisdiction over youth until age eighteen. Id. ch. 218, § 60; id. ch. 119, § 52. So a seventeen-yearold might be charged with prostitution as an adult and then have the criminal case stayed if the youth 

admits under the CHINS law in the Juvenile Court to being sexually exploited. If the youth is under 

seventeen, the juvenile court will have jurisdiction of both the delinquency and the CHINS petition. 

157. Id. § 39L(c). 

158. Id. § 39L(a). 

159. Id. ch. 260, § 4D. These provisions of the law toll the statute of limitations while the child is a minor 

or until she is “freed from human trafficking.” Id.
1610 59 UCLA L. REV. 1584 (2012) 

assigns the children advocates with expertise in the issue,160 and creates a multidisciplinary team to develop a plan of services.161 

When told about this law, a young woman survivor of commercial sexual 

exploitation aptly noted that while it says that sexually exploited children are victims, 

it then requires them to comply with the agency to be treated as victims. To her, 

the law seemed coercive and not compassionate.162 Indeed, the Massachusetts law 

does not reflect the reality that children who are commercially sexually exploited 

are not likely to “substantially comply” with state services, since they are trained 

to evade authorities, almost uniformly have histories of running away from 

authorities and home, and have been described as psychological captives of their 

pimps.163 Moreover, as the survivor points out, it sends a decidedly mixed message 

to hold criminal prosecution over a victim’s head while telling her you view her 

as exploited. 

Expanding the status offender system to include an additional class of girls is 

also a concern given that system’s history as a way to control girls’ behavior and pull 

them into the delinquency system.164 Very few minors are currently charged with 

prostitution-related crimes in Massachusetts, and it would be counterproductive if 

the promise of CHINS services prompted an increase in prostitution-related charges, 

even if those charges were initially stayed. Moreover, requiring a girl to stipulate 

that she is sexually exploited under the CHINS law in order to stay her delinquency 

case is stigmatizing and contrary to the psychology of exploitation, and many girls may 

understandably choose not to proceed under the new law.165

160. Id. ch. 119, §§ 21, 39K(a). 

161. Id. § 51D. 

162. Interview With C. (Dec. 29, 2011). 

163. See generally JODYRAPHAEL,LISTENING TO OLIVIA:VIOLENCE,POVERTY,AND PROSTITUTION

(2004); Lisa Goldblatt Grace, Understanding the Commercial Sexual Exploitation of Children, LINK:

CONNECTING JUV. JUST. & CHILD WELFARE, Fall 2008/Winter 2009, at 1; Kendra Nixon et al., 

The Everyday Occurrence: Violence in the Lives of Girls Exploited Through Prostitution, 8 VIOLENCE 

AGAINST WOMEN 1016 (2002); Sherman & Grace, supra note 132, at 334–40, citing R. BARRI 

FLOWERS, RUNAWAY KIDS AND TEENAGE PROSTITUTION: AMERICA’S LOST, ABANDONED,

AND SEXUALLY EXPLOITED CHILDREN (2001). 

164. See supra notes 29–40 and accompanying text. 

165. In Massachusetts and most other states, competent youth direct their legal representation just as adults 

do. Thus each girl has the right, with the assistance of counsel, to choose to proceed under the new 

law or to allow the delinquency case (or in the case of a seventeen-year old, the criminal case) to 

proceed on its usual course. See MASS.RULES OF PROF’L CONDUCT R. 1.14 (2011), available at 

http://www.mass.gov/obcbbo/RPC.pdf (Client With Diminished Capacity); COMM. FOR PUB.

COUNSEL SERVS., PERFORMANCE STANDARDS GOVERNING REPRESENTATION OF INDIGENT 

JUVENILES IN DELINQUENCY, YOUTHFUL OFFENDER, AND CRIMINAL CASES (n.d.), available 

at http://www.youthadvocacydepartment.org/jdn/resourcedocs/performance-standards.pdf (last visited 

July 9, 2012). 
Justice for Girls 1611 

A striking illustration of developmentally inappropriate and inconsistent law 

related to commercial sexual exploitation of minors is that, with few exceptions, 

state criminal laws allow minors to be charged with prostitution-related offenses 

even though they are too young to consent to sex under statutory rape laws.166 For 

example, in New York, the state Superior Court upheld the prosecution for prostitution of a twelve-year-old minor who was below the age of consent under the 

state statutory rape law.167 The court reasoned simply that the age of consent for 

rape was irrelevant to prosecution under the New York prostitution law, which 

contained no age requirement.168 However, when presented with the same issue, 

the Texas Supreme Court reached the opposite result, finding it “difficult to 

reconcile the legislature’s recognition of the special vulnerability of children, and 

its passage of laws for their protection, with an intent to find that children under 

fourteen understand the nature and consequences of their conduct when they agree 

to commit a sex act for money.”169

How can the law concerning commercial sexual exploitation of children 

recognize the reality of child development that increasingly guides the juvenile 

justice system? States should decriminalize prostitution for minors. Courts and 

scholars should craft a developmentally appropriate and consistent understanding 

of minors’ ability to consent to sex in the range of real-life contexts in which this 

issue arises.170 Understanding the brutal nature of commercial sexual exploitation and 

the need to protect victimized youth, policymakers must still be mindful of the 

way the impulse to protect teenage girls has historically driven them into the justice 

system. Finally, the lawyers representing girls who are commercially sexually 

166. Michigan, Illinois, Connecticut, and Tennessee revised their laws to decriminalize prostitution for 

some minors. In Michigan, it was minors under 16 years old. MICH.COMP.LAWS ANN. §§ 750.448, 

750.449 (West 2004). In Illinois, it was minors under 18 years old. 720 ILL. COMP. STAT. ANN. 

5/11-14 (West Supp. 2012). In Connecticut, it was minors under 16 years old. CONN. GEN.

STAT. ANN. § 53a-82 (West Supp. 2012). In Tennessee it was minors under 18 years old. TENN.

CODE ANN. § 39-13-513 (2010 & Supp. 2012). In Texas, the state’s highest court ruled that the 

statute criminalizing prostitution, which required that the crime be committed knowingly in order to be 

punishable, see TEX.PENAL CODE ANN. § 43.02(a)(1) (West 2011), could not apply to minors under 

fourteen because they cannot consent to sex. In re B.W., 313 S.W.2d 818, 821–22 (Tex. 2010). 

167. In re Nicolette R., 779 N.Y.S.2d 487 (2004). 

168. Id. at 488. 

169. In re B.W., 313 S.W.2d at 821–22. 

170. See Birckhead, supra note 134, at 1094–1101. Consideration of sex offenses and the range of ways in 

which teenage sexuality is criminalized is beyond the scope of this Article, but such consideration 

should be a part of developmentally centered thinking about the application of these laws to youth 

and the collateral consequence of them (such as sex offender registries). See generally FRANKLIN E.

ZIMRING,AN AMERICAN TRAVESTY:LEGAL RESPONSES TO ADOLESCENT SEXUAL OFFENDING

117–42 (2004). 
1612 59 UCLA L. REV. 1584 (2012) 

exploited and the programs assisting these young women should draw on developmentally informed approaches, such as empowerment models of client counseling 

and trauma-informed approaches to treatment and systems.171 Just as with running 

away, trauma driven behaviors, and home-based violence, a developmental 

understanding of CSEC should drive policy. 

III. USING DATA IN JUVENILE JUSTICE

The U.S. juvenile justice system was intended as an individualized and caring 

alternative to the adult criminal justice system. Juvenile justice, as originally 

conceived, was not offense-based but offender-based, with dispositions (and at times 

process) tailored to the needs of the individual youth before the court.172

This vision of individualized justice, designed to meet the needs and aid in 

the reformation of each youth before the court, relies on discretion at every stage. 

By definition, this is not a one-size-fits-all system, and so discretion is built into 

every decision—arrest, charging, detention, probation, and disposition. But the 

exercise of discretion makes room for bias, both in the form of the overt exercise of 

prejudice and, more commonly, in the well-intentioned differentiation among 

youth by factors that appear neutral but have a discriminatory impact.173 In juvenile 

justice, it is sometimes challenging to tease apart underlying prejudice from policies 

that appear neutral but are biased in practice. 

For the most part, gender bias that drives girls into the juvenile justice 

system is not obvious in facially discriminatory statutes or policies and may not be 

the result of intentional discrimination by juvenile justice systems. It is the result 

of the application of facially neutral laws and policies in a way that has a negative 

and biased impact on girls who suffer cumulative disadvantage—what has been 

called “unconscious” or “implicit” discrimination.174 Because gender discrimination in juvenile justice is found largely in the impact or effect of policies and 

practices, legal challenges are particularly difficult making the movement toward 

data-driven decisions and policies particularly compelling.175

171. See Moore, supra note 128, at 168 n.42, 170 n.51. 

172. See Feld, supra note 5, at 824–25. 

173. See Donna M. Bishop & Charles E. Frazier, Race Effects in Juvenile Justice Decision-Making: Findings 

of A Statewide Analysis, 86 J. CRIM. L. & CRIMINOLOGY 392, 409 (1996); see also Barry C. Feld, 

The Transformation of the Juvenile Court—Part II: Race and the “Crack Down” on Youth Crime, 84 MINN.

L.REV. 327, 377 (1999). 

174. For a very thoughtful critique of the difficulty of establishing structural race bias in juvenile justice and the 

resulting importance of the disproportionate minority contact (DMC) core requirement to address race 

bias in juvenile justice, see Olatunde C.A. Johnson, Disparity Rules, 107 COLUM.L.REV. 374 (2007). 

175. See id.
Justice for Girls 1613 

In 1976, the U.S. Supreme Court held in Washington v. Davis176 that to establish state discrimination in the race context, plaintiffs must show intent to discriminate.177 In later cases the Court clarified Washington, holding that showing 

discriminatory effect was not sufficient to prove that intent must have been present. 

Rather, the plaintiff must show that the state decided on its course of conduct 

“because of” its effects on the particular protected group.178 The line of cases 

stemming from Washington v. Davis has made successful equal protection challenges to the sort of race and gender discrimination that results from systemwide 

juvenile justice policies and practices very difficult.179 Equal protection challenges 

based on gender discrimination are even more difficult than those based on race 

because unlike race, which is a suspect classification requiring strict scrutiny, classifications based on gender generally require only intermediate scrutiny for states to 

establish legitimate justifications for their discriminatory practice or policy.180

Title IX, which prohibits educational institutions that receive federal funds 

from practicing gender discrimination,181 may also have limited utility as a basis for 

addressing gender-based discrimination as it appears in juvenile justice systems. 

First, Title IX challenges would be limited to discrimination in educational or 

vocational programs in the juvenile justice system.182 Next, while Title IX applies 

in the women’s prison context, it has had limited success because courts have 

generally deferred to prison officials.183 Finally, the standard for Title IX liability 

in the juvenile justice context is not clear, and courts have differed on the extent 

176. 426 U.S. 229 (1976). 

177. Id.; see Johnson, supra note 174, at 386–87. 

178. Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979); see also Johnson, supra note 174, at 

386–87. 

179. Johnson, supra note 174, at 387–88. 

180. United States v. Virginia, 518 U.S. 515 (1996); see Marsha L. Levick & Francine T. Sherman, When 

Individual Differences Demand Equal Treatment: An Equal Rights Approach to the Special Needs of 

Girls in the Juvenile Justice System, 18 WIS.WOMEN’S L.J. 9, 25–26 (2003); Elizabeth M. Schneider, 

A Postscript on VMI, 6 AM. U.J. GENDER & L. 59 (1997); Ann K. Wooster, Equal Protection and Due 

Process Clause Challenges Based on Sex Discrimination—Supreme Court Cases, 178 A.L.R. FED. 25 (2002). 

181. 20 U.S.C. § 1681 (2006). See generally David S. Cohen, Title IX: Beyond Equal Protection, 28 HARV.

J.L. & GENDER 217 (2005) (discussing the scope of Title IX, including its application in the prison 

context and to what extent its analysis parallels equal protection analysis). 

182. See Cohen, supra note 181, at 228-233. 

183. See, e.g., Klinger v. Dep’t of Corr., 107 F.3d 609, 614 (8th Cir. 1997); Women Prisoners of the D.C. 

Dep’t of Corr. v. District of Columbia, 93 F.3d 910, 932 (D.C. Cir. 1996). In the juvenile 

context, see Lothes v. Butler Cnty. Juvenile Rehab. Ctr., 243 F. App’x 950 (6th Cir. 2007). But see, 

e.g., Jeldness v. Pearce, 30 F.3d 1220, 1231 (9th Cir. 1994) (holding that an award of merit pay to 

men, but not to women, for participating in the same vocational training course in the same location 

amounted to disparate treatment violating Title IX); Cohen, supra note 181, at 228–31; Levick & 

Sherman, supra note 180, at 28–29. 
1614 59 UCLA L. REV. 1584 (2012) 

to which Title IX analysis mirrors equal protection analysis for gender.184 As with 

equal protection analysis, proof of discriminatory intent, or even proof of discriminatory impact, without a legitimate state justification is difficult given the unconscious gender discrimination found in juvenile justice systems, the limitations on local 

data collection, and the discretion built into so much of juvenile justice decisionmaking. 

A particular problem establishing the impact of any one juvenile justice decision is 

that so many juvenile justice decisions are multifactored, making it difficult to 

connect an outcome to one discriminatory factor.185

Equal protection and state Equal Rights Amendment (ERA) challenges to 

gender discrimination in juvenile justice have not been very successful.186 Challenges 

to transfer or disposition decisions alleging that a lack of parity between girls’ and 

boys’ programming resulted in discrimination have been rejected on the theory that 

girls and boys in the juvenile justice system are not similarly situated. That both 

parties be similarly situated is an essential element of equal protection analysis.187

Finally, even in the unlikely event that unconstitutional gender discrimination 

could be established against practices of a juvenile justice system, courts’ increasing 

use of qualified immunity in system reform cases presents an additional barrier. 

Qualified immunity, which prevents recovery against a state actor for a constitutional violation unless the violation was clearly established as unconstitutional at 

the time of the violation and the state actor knew or should have known that it was 

unconstitutional, increasingly prevents remedies in cases involving youth.188

Given the history of hidden or unconscious gender discrimination, programs 

and policies designed for boys but used with girls, and the absence of effective 

184. See Cohen, supra note 181, at 228–31. 

185. Id. Detention and disposition standards are examples of multifactored juvenile justice decisions. 

Once a youth is found delinquent, the disposition assigned often results from the court’s judgment 

concerning what will provide needed treatment or rehabilitation, or address “present and long term 

public safety.” MASS. GEN. LAWS ANN. ch. 119, § 58 (LexisNexis 2009 & Supp. 2012). Statutes 

guiding these decisions provide courts with little guidance about how to exercise their discretion, 

but typically a totality of factors will be considered, such as the nature of the offense, the child’s social 

history, and the availability of family support. See Feld, supra note 5, at 847–50; Moriearty, supra 

note 5, at 307–08. 

186. See Linda J. Wharton, State Equal Rights Amendments Revisited: Evaluating Their Effectiveness in 

Advancing Protection Against Sex Discrimination, 36 RUTGERS L.J. 1201 (2005); Stefanie Fleischer 

Seldin, A Strategy for Advocacy on Behalf of Women Offenders, 5 COLUM J. GENDER & L. 1, 7–14 

(1995); Levick & Sherman, supra note 180, at 35–42. 

187. See, e.g., State v. Spina, 982 P.2d 421 (Mont. 1999); Benson v. State, 763 So. 2d 1235 (Fla. Dist. Ct. 

App. 2000). 

188. See, e.g., Safford v. Redding, 557 U.S. 364 (2009); Barry C. Feld, T.L.O And Reddings Unanswered 

(Misanswered) Fourth Amendment Questions: Few Rights and Fewer Remedies, 80 MISS. L.J. 847, 

953 (2011). 
Justice for Girls 1615 

ways to remedy this discrimination in the courts, the move toward data-driven 

decisionmaking in juvenile justice is important for girls. In the last fifteen to twenty 

years, juvenile justice systems have increased their capacities to measure what they 

do, and with that there is increasing pressure to be reflective and set policy based on 

those data.189 Although there is a broad range across the country in systems’ data 

capacities and utilization, the trend is clear. 

Data is increasingly being used both to examine juvenile justice practices and 

to evaluate programs.190 Some systems now have the capacity, for example, to make 

detention decisions based on an objective assessment of a youth’s risk and then to 

analyze those decisions over time to determine whether they are being made objectively based on criteria thought to be gender neutral. They can then determine 

whether those criteria are gender neutral in practice or whether they are having a 

discriminatory impact. If decisions are having a discriminatory impact in practice, 

some jurisdictions now have the capacity to pinpoint where bias is occurring in 

the system. Having those data gives systems, if they are open to using it, the power 

to be fairer and more targeted in their practices. Pushed forward by a federal 

agenda to support evidence-based practices, some effort at program evaluation, 

which was almost unheard of in juvenile justice twenty years ago, is now increasingly common and almost essential to obtain funding. 

However, unlike the use of data to measure and devise remedies for disproportionate minority contact, which has been the subject of considerable methodological attention,191 the use of data to measure gender disparities is not widespread or 

consistent. The use of data to assess and remedy gender disparities suffers 

because (1) few systems are examining their practices to determine whether they 

have a gender-based discriminatory impact; (2) the field has not advanced to the 

point of determining exactly how to measure discriminatory impact on girls; and 

189. See LaWanda Johnson, Creating Juvenile Justice: Models for Change, 93 JUDICATURE 22, 23 (2009); 

Stan Schneider & Lola Simpson, Getting on Board With Juvenile Justice Information Technologies, 

JUVENILE JUSTICE, supra note 38, at 456, 459–64. 

190. Schneider & Simpson, supra note 189, at 464–75. 

191. Here again, the elevation of DMC to a core requirement resulted in federal guidance on the methodology to best assess DMC. Prior to 2002, when the focus was on confinement, DMC was usually 

measured using the Disproportionate Representation Index (DRI), which compared the percentage 

of youth of color at a specific decision point with the percentage of youth of color in the general 

population. Following 2002, the Relative Rate Index (RRI) became more common, and is considered to be the more accurate measure. The RRI compares the rate of youth of color in the system 

at a particular decision point with the rate of white youth at that decision point and does not consider 

this in relation to the number of youth of color in the general population. The RRI focuses attention 

on bias at each decision point. See James Bell & Raquel Mariscal, Race, Ethnicity, and Ancestry in 

Juvenile Justice, in JUVENILE JUSTICE, supra note 38, at 111. 
1616 59 UCLA L. REV. 1584 (2012) 

(3) data-driven approaches rarely consider the structural gender inequality that is 

embedded in society and reinforced by many juvenile justice practices. 

The following Subparts will consider three ways in which those in the juvenile 

justice system use data and how that use of data affects girls. 

A. Intersectionality in Juvenile Justice 

The use of data to understand and address discrimination in juvenile justice 

is furthest along in the area of racial disparities.192 In 1992, the JJDP Act required 

states to examine DMC as a core requirement of federal funding.193 Prior to 

1992, DMC was not a core requirement and was conceptualized more narrowly 

as disproportionate minority confinement. The expansion of the definition of race 

disparities from confinement to contact reflected the developing understanding, 

through data, that race bias occurs at each stage of the juvenile justice process—

case processing, detention, adjudication, probation, disposition, and waiver to the 

adult system.194 Moreover, studies show that these discretionary decisions reflect 

underlying prejudice among many decisionmakers. Qualitative studies of probation 

files found that, controlling for offense and offense histories, probation officers were 

more likely to attribute failures of white youth to some fault in their circumstances, 

while they were more likely to attribute failures of black youth to some fault of 

their character.195

Like youth of color, girls in the justice system have also experienced bias 

resulting from the unaccountable exercise of discretion by decisionmakers 

throughout the juvenile justice process.196 For girls, differential treatment has 

resulted in their arrest, charging, detention, probation, and even secure dispositions 

192. See infra note 193–195 and accompanying text; supra note 191. 

193. See Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. § 5633 (2006). 

194. See Bell & Mariscal, supra note 191, at 114–15; Bishop & Frazier, supra note 7, at 1180–82, 1184. 

195. See George S. Bridges & Sara Steen, Racial Disparities in Official Assessments of Juvenile Offenders: 

Attributional Stereotypes as Mediating Mechanisms, 63 AM. SOC.REV. 554, 567 (1998); Sara Steen et 

al., Explaining Assessments of Future Risk: Race and Attributions of Juvenile Offenders in Presentencing 

Reports, in OUR CHILDREN, THEIR CHILDREN 254 (Darnel F. Hawkins & Kimberly KempfLeonard eds., 2005). There is a debate in the literature about how intentional the practices that result in 

disproportionate minority contact are. Some say that they reflect an intentional effort to subjugate 

minorities and as such are the most recent iteration of institutional racism. See MICHELLE 

ALEXANDER,THE NEW JIM CROW:MASS INCARCERATION IN THE AGE OF COLORBLINDNESS

(2010); JAMES BELL & LAURA JOHN RIDOLFI, ADORATION OF THE QUESTION:REFLECTIONS 

ON THE FAILURE TO REDUCE RACIAL & ETHNIC DISPARITIES IN THE JUVENILE JUSTICE 

SYSTEM 3–7 (2008). 

196. Gender bias in the juvenile justice system is well documented. See, e.g., CHESNEY-LIND & PASKO, 

supra note 107, at 55–93.
Justice for Girls 1617 

for status offenses, misdemeanors, and technical violations of probation and 

parole.197 Every day, girls are securely detained for offenses that would not result 

in detention for a boy.198 This overuse of secure confinement has been attributed 

to (1) paternalism among decisionmakers who try to protect girls from harm; (2) 

an effort to use the justice system to obtain services for high-need girls; (3) an effort 

to protect girls from sexual victimization; (4) fear of teen pregnancy and its social 

costs; (5) fear of girls’ expressions of sexuality; and (6) intolerance of girls who are 

not readily cooperative and compliant.199

Systemic discretion, with its opportunity for bias, has hit girls of color particularly hard, and black girls have been the swiftest growing group of girls referred to 

the juvenile courts and entering detention.200 In 1992, black girls made up 30 percent 

of girls referred to the juvenile courts, and by 2008, referrals of black girls had 

increased 72 percent from their 1992 level, making up 35 percent of all girls’ 

referrals. The pattern was even more pronounced in detention. In 1992, black 

girls made up 35 percent of girls detained—a total of 15,237. By 2002, the number 

of black girls detained had nearly doubled to 30,009. By 2008, the number of black 

girls had declined, as it had for girls overall, but it still remained 75 percent higher 

than the 1992 level.201 The proportion of black girls in the juvenile justice system 

is particularly dramatic because they make up only 8 percent of the U.S. population of youth aged ten to seventeen.202

Despite advances in the use of data to measure and address race disparities 

in juvenile justice systems, and despite the rapid growth in the number of black 

girls in the juvenile justice system, the intersection of race and gender in juvenile 

justice is almost never considered.203 Few systems routinely disaggregate their data 

by race and ethnicity and cross-reference them by gender. More commonly, 

systems examine all girls and all boys and then all youth by race and ethnicity, and 

as a result, they miss the intersection of race and gender entirely. Even jurisdictions 

collecting data to address DMC rarely disaggregate by gender, and so, although 

we know that black girls are the swiftest growing population of girls in the system, 

197. See SHERMAN,supra note 102, at 29–38; SHERMAN,MENDEL &IRVINE, supra note 14 (manuscript 

at 4–10). 

198. See SHERMAN,MENDEL & IRVINE, supra note 14 (manuscript at 4–10). 

199. SHERMAN, supra note 102, at 17–18. 

200. See Taylor-Thompson, supra note 17, at 1159–61. 

201. Sickmund et al., supra note 14; see also SHERMAN, MENDEL & IRVINE, supra note 14 (manuscript 

at 7). 

202. Easy Access to Juvenile Populations: 1990–2010, OFF. JUV. JUST. & DELINQ. PREVENTION, 

http://www.ojjdp.gov/ojstatbb/ezapop (last updated Dec. 16, 2011). 

203. See Nanda, supra note 17. For a discussion of gender and race intersectionality in adult women, see 

Crenshaw, supra note 17, at 1246. 
1618 59 UCLA L. REV. 1584 (2012) 

we know little about what drives them into the system and how those drivers 

affect girls of different races and ethnicities. In this case, the data are available to 

many systems, but the intersection of race and gender is not understood and the 

research questions are not asked. 

A recent study of girls in the justice system confirms disparities at the intersection of race and gender in six California counties.204 Black girls living in these 

six counties (in the Bay Area, Sacramento Valley, and Southern California) made 

up approximately 3 percent of the population in California, but they made up 

15–60 percent of girls arrested in their respective counties, 24–74 percent of 

girls detained, and up to 67 percent of girls with institutional commitments.205 In 

one Bay Area county, black girls made up 12 percent of the population but 60 

percent of girls’ arrests, 74 percent of juvenile hall detentions, and 72 percent of incustody holds.206 Disparities among black girls were greater and more consistent 

than for any other subpopulation of girls.207

Using data to identify decision points in the juvenile justice system that 

contribute to disparities, working with local decisionmakers to eliminate race as a 

factor in decisions, and making decisions more objective has been an effective strategy to reduce race disparities.208 A byproduct of this work is decisionmakers’ 

improved awareness of the many ways in which their decisions have a race impact. 

In this new data-driven climate, similar strategies should be used by systems focused 

on reducing disparate treatment of black girls and other girls of color in the juvenile 

justice system. 

B. Using Data to Promote Fairness 

Gender bias for girls in juvenile justice systems occurs in small and hidden 

ways every day. Well-meaning decisionmakers act to protect girls, or act out of 

frustration at girls’ misbehavior, and in doing so push girls deeper into the system through mechanisms such as aggressive enforcement of warrants and violations 

of probation. System policies allow, and in some cases reinforce, these decisions 

204. See MONIQUE W. MORRIS, STEPHANIE BUSH-BASKETTE & KIMBERLÉ CRENSHAW, 

CONFINED IN CALIFORNIA:WOMEN AND GIRLS OF COLOR IN CUSTODY (forthcoming 2012). 

205. Id. (manuscript at 25–28). 

206. Id. (manuscript at 25). 

207. Id. (manuscript at 24). 

208. See ELEANOR HINTON HOYTT ET AL., ANNIE E. CASEY FOUND., PATHWAYS TO JUVENILE 

DETENTION REFORM: REDUCING RACIAL DISPARITIES IN JUVENILE DETENTION (2001). 

Organizations such as the W. Haywood Burns Institute use this strategy successfully to assist local 

juvenile justice jurisdictions to reduce race disparities. See Our Work, W.HAYWOOD BURNS INST., 

http://www.burnsinstitute.org/article.php?id=56 (last visited July 9, 2012). 
Justice for Girls 1619 

so that girls with minor offenses and technical violations are driven deeper into 

the justice system.209 This occurs routinely, making data analysis of cases over time 

essential for jurisdictions to see the patterns in their actions.210

For girls, then, the trend toward data-driven decisions is promising when 

data uncover gender bias, prompting systems to change policies and practices to 

be fairer. While greater availability of data holds promise, its usefulness to girls 

depends on the research questions asked and the ways systems respond. To benefit 

girls, systems must have data capacity and knowhow, an understanding of how girls 

are cumulatively disadvantaged, and a willingness to change longstanding practices if they are shown to have a discriminatory impact. 

Washoe County, Nevada’s experience illustrates how data can increase 

understanding and change practices for girls. As a Juvenile Detention Alternatives 

Initiative (JDAI) jurisdiction, Washoe County closely tracks detention data and 

strives to base policy and practice decisions on that data.211 Since 2006, county 

officials have been closely monitoring data about girls in their system in an effort 

to eliminate the unhelpful secure detention of girls, prevent girls from unnecessarily penetrating their juvenile justice system, and improve services to girls in 

the community.212

This 2006 data revealed that 90 percent of detained girls were confined for 

technical violations of probation and not for new crimes.213 Upon closer analysis, 

it was determined that in 2006, 50 percent of girls were on probation for misdemeanor offenses and 10 percent were on probation for status offenses.214 These 

girls were placed on probation for offenses that were unlikely to have triggered a 

probation sentence for boys, such as shoplifting, possession of alcohol, possession 

of marijuana, and domestic battery.215 Probation conditions were then imposed, 

209. See supra notes 83–119 and accompanying text. 

210. For examples of such data analysis, see SHERMAN, MENDEL & IRVINE, supra note 14 (manuscript 

at 19–46). 

211. The Juvenile Detention Alternatives Initiative (JDAI) is a fifteen-year-old initiative of the Annie 

E. Casey Foundation designed to help jurisdictions reduce the unnecessary detention of youth. 

Now in 110 jurisdictions across the United States, JDAI has been very effective using a data-driven 

approach to increase objectivity in detention decisions. See RICHARD A. MENDEL, ANNIE E.

CASEY FOUNDATION, TWO DECADES OF JDAI: FROM DEMONSTRATION PROJECT TO 

NATIONAL STANDARD 2 (2009). 

212. Telephone Interview With Carey Stewart, Dir., Washoe Cnty. Dep’t of Juvenile Justice Servs. (Mar. 

23, 2012). 

213. Washoe Cnty. Dep’t of Juvenile Servs., Washoe County Detention Reform for Girls (2007) 

(unpublished report) (on file with author), cited in SHERMAN,MENDEL & IRVINE, supra note 14 

(manuscript at 50). 

214. Id.

215. Id. 
1620 59 UCLA L. REV. 1584 (2012) 

and when girls failed to comply with those conditions, they were lawfully detained. 

Washoe County’s data were consistent with national data. In 2006, approximately 

40 percent of detained girls were confined for technical violations or status offenses 

as compared with 25 percent of boys.216 

Without data, Washoe County would not have seen its pattern of imposing probation disproportionately on misdemeanant and status-offending girls, 

resulting in their detentions for technical violations. Seeing that pattern allowed 

officials to consider the attitudes that result in those sentences and rethink their 

probation practice. Washoe County administrators decided on the most 

targeted solution: They eliminated probation sentences for status offenders across 

the board and reduced the use of probation as a sentence for misdemeanors. 

Instead, they now address these cases through voluntary services or the child and 

family services system. Overall, the use of secure detention for girls in Washoe 

County dropped a dramatic 50 percent from 2006 to 2010.217 At the same time, 

system practices have become more intentional and reflective. Having changed 

the way they manage cases to respond to the needs of girls and families, Washoe 

County has prevented girls from penetrating the formal juvenile justice system.218

While the failure of systems to examine the intersection of race and gender 

in their data illustrates the unmet potential of data-driven decisionmaking, 

Washoe County’s experience illustrates that potential being met. In Washoe 

County, data use allowed administrators to identify and reduce the discriminatory 

impact often embedded in juvenile justice practices. However, as with DMC, 

federal leadership is critical for experiences like this to become the norm. States 

should be required to collect juvenile justice data by gender and cross-reference it 

by race and ethnicity categories so they can understand the impact of juvenile 

justice decisions on subgroups of girls. With an ability to identify gender-based 

and race- and gender-based discriminatory impact in a range of juvenile justice 

decisions and practices, local jurisdictions will have the data needed to understand 

how juvenile justice decisions and practices in their jurisdictions support gender bias 

that has been present since the beginning of juvenile justice in the United States. 

216. Easy Access to the Census of Juveniles in Residential Placement: 1997–2010, OFF.JUV.JUST. & DELINQ.

PREVENTION, http://www.ojjdp.gov/ojstatbb/ezacjrp (last updated Dec. 19, 2011). 

217. The number of girls detained in Washoe County was reduced from 489 in 2006–2007 to 382 in 

2007–2008, to 304 in 2008–2009 and 244 in 2009–2010. SHERMAN, MENDEL & IRVINE, supra

note 14 (manuscript at 51). 

218. Carey Stewart, Deputy Dir., Washoe Cnty., Nev. Dep’t of Juv. Services, Presentation at Juvenile 

Detention Alternatives Initiatives Inter-site Conference: Girls and Detention Reform: Tools for 

Reform (Nov. 29, 2006); see SHERMAN,MENDEL & IRVINE, supra note 14 (manuscript at 51–52). 
Justice for Girls 1621 

C. Assessing Risk: The Assessment Debate 

Juvenile justice systems’ increasing use of validated, objective assessment instruments to guide important decisions is another instance of the trend favoring datadriven decisionmaking. Risk and risk/needs assessment instruments are used to assist 

courts in detention and disposition decisions. These instruments quantify the risk of 

a youth failing to appear in court (in the case of detention) or of reoffending (in the 

case of both detention and postadjudication instruments). In addition, the “needs” 

components in the instruments can assist postdisposition planning.219 

In the field, there has been debate around the role of gender in developing 

and implementing these instruments. Should these instruments be gender neutral 

or gender responsive? Should they include questions related to what we know to 

be issues prevalent among girls in the juvenile justice system to guide systems 

toward gender-responsive, postadjudication services; or should they strive for gender neutrality, mindful of the risk of widening the net of girls who are under juvenile justice supervision because of their needs? If the assessment is gender neutral 

on its face, is it being administered in a gender neutral way? If gender is to be considered, how should it be considered? Is gender alone predictive of future delinquency, or should the instrument focus on factors associated with gender? If the 

analysis focuses on factors associated with gender, how can it guard against 

sweeping high-need, low-risk girls further into a juvenile justice system that is ill 

equipped to assist them? 

The discussion around gender and risk-assessment instruments illustrates 

the complexities and limitations of the data-driven movement in juvenile justice. 

As with establishing evidence-based practice,220 the relatively low numbers of 

girls in the juvenile justice system and the design of the system around boys have 

slowed the development of assessment instruments for girls. In its 2010 scan of 

assessment instruments, the Girls Study Group identified thirty-five risk or 

risk/needs assessment instruments and, of those, rated eleven as favorable (having 

positive gender-based performance information), three as unfavorable, and twenty 

219. See Gina M. Vincent, John Chapman & Nathan E. Cook, Risk–Needs Assessment in Juvenile Justice: 

Predictive Validity of the SAVRY, Racial Differences, and the Contribution of Needs Factors, 38 CRIM.

JUST. & BEHAV. 42 (2011). For a discussion of the reliability of needs factors in predicting 

postdisposition outcomes by gender, see Craig S. Schwalbe, A Meta-analysis of Juvenile Justice Risk 

Assessment Instruments: Predictive Validity by Gender, 35 CRIM.JUST. & BEHAV. 1367 (2008). 

220. See infra text accompanying notes 235–248. 
1622 59 UCLA L. REV. 1584 (2012) 

-one as having unknown gender-based performance information.221 A risk/needs 

assessment that includes areas of specific concern for girls, such as sexual 

victimization, runs the real risk of sweeping more girls into the system as a result of 

their needs. 

New York’s experience with its postadjudication risk assessment instrument 

illustrates the difficulty of, and potential backlash to, explicitly considering gender 

in juvenile justice decisionmaking. New York’s Probation Assessment Tool (PAT) 

was designed in 2003 as a validated instrument to be used by probation officers 

to recommend postadjudication delinquency dispositions to the Family Court.222 

The PAT, designed by the Vera Institute of Justice and the New York Probation 

Department, assesses a youth’s risk of reoffending and on that basis makes a recommendation as to the level of restrictiveness needed in the postadjudication 

disposition.223 The court, bound by statute to “order the least restrictive available 

alternative . . . which is consistent with the needs and best interests of the respondent 

and the need for protection of the community,”224 is not required to follow the 

probation recommendation, but that recommendation and the PAT score tend to 

be given great weight in ordering dispositions.225

New York’s PAT was part of an effort to increase consistency and rationality 

in probation recommendations through a data-driven, objective approach. In 

assessing risk of reoffense, the PAT assigns an “asset score” based on the age, gender, charge, arrest history, school attendance, peer group, and substance abuse 

characteristics of the youth, which are all factors associated with future offending. 

The PAT was based on an analysis of 730 adjudicated juvenile delinquents receiving dispositions in spring 2000 whose arrest patterns were tracked for three 

years.226 Based on that data, New York’s PAT awards fourteen asset points to 

221. See SUSAN BRUMBAUGH, JENNIFER L. HARDISON WALTERS & LAURA A. WINTERFIELD, 

SUITABILITY OF ASSESSMENT INSTRUMENTS FOR DELINQUENT GIRLS 6 (2010). In addition 

to risk and risk/needs assessments, the authors also studied global needs assessments, substance 

abuse instruments, and mental health instruments. In all, they identified 143 instruments and found 

seventy-three favorable for gender based performance. Id. at 5–6. 

222. In re Geraldine A., 920 N.Y.S.2d 241, No. D-16725/09, slip op. at 3 (N.Y. Fam. Ct. Nov. 23, 

2010). 

223. Id. at 3–4; Memorandum From Joel Miller to N.Y.C. Dep’t of Probation (2010) [hereinafter 

Miller Memorandum] (on file with author). 

224. Geraldine A., No. D-16725/09, slip op. at 3 (citing N.Y. FAM. CT. ACT § 352.2(2)(a) (McKinney 

2008)). 

225. Id., slip op. at 26–27. 

226. Miller Memorandum, supra note 223. 
Justice for Girls 1623 

girls based on their gender, indicating that they are less likely to reoffend than 

similarly situated boys.227

In In re Geraldine A.,228 a New York Family Court judge criticized the PAT 

for automatically awarding asset points to girls based on gender, finding that the 

PAT “impermissibly discriminates against juvenile males by awarding a preference 

to delinquent females in the form of asset points based solely on the immutable fact 

of their gender.”229 The judge described eight “similarly situated” youth before the 

court for disposition. In these cases, the fourteen asset points awarded for gender 

resulted in probation recommendations of less restrictive dispositions for the girls 

than the boys.230

The court further criticized the PAT for removing the discretionary, individualized determinations of the needs of each juvenile that are a critical component 

of juvenile court dispositions. The court went into detail about the outcomes in 

the selected cases to suggest that the less restrictive PAT recommendations were 

incorrect and expressed concern that the Probation Department is, in effect, rewriting the juvenile statutes through its policy of relying on the PAT.231 

New York’s PAT is noteworthy as a rare risk-assessment instrument using 

gender as a predictor of positive behavior—being a girl reduced the likelihood 

of reoffending. It is unusual both because it uses gender, rather than factors associated with gender, and because it uses gender to predict positive rather than 

negative behavior. Instruments that consider factors associated with girls generally 

use negative behaviors, such as running away, which increase the likelihood of a 

more restrictive disposition. Research underlying the PAT supported its positive 

approach, showing that in their first eighteen months in the community following 

disposition, 56 percent of boys were rearrested compared with just 22 percent of 

girls; a more than twofold difference.232

Gender matters in juvenile justice and, while assigning a significant number of 

asset points to all girls may be too blunt a mechanism, it contrasts with discretionary juvenile justice decisions that often restrict girls more than boys for minor 

227. Id.

228. 920 N.Y.S.2d 241. 

229. Id.,slip op. at 29. 

230. Id., slip op. at 6. 

231. There is tension in juvenile justice jurisprudence between the authority of the judiciary and that of the 

executive. These separation of powers issues have arisen in cases restricting the court’s authority to 

order specific juvenile justice dispositions as interfering with the ministerial authority of the agency. 

See, e.g., In re Isaac, 646 N.E.2d 1034, 1040 (Mass. 1995); In re Jeremy, 646 N.E.2d 1029, 1033 

(Mass. 1995). 

232. Miller Memorandum, supra note 223. 
1624 59 UCLA L. REV. 1584 (2012) 

offenses.233 In addition to the court’s finding that the PAT discriminates against 

juvenile males, the judge reasoned that girls are ill served by the inflated PAT 

score, which may result in less services and less supervision than they need.234 

Contrary to this view, the longstanding juvenile justice notion that a nonempirical 

determination of need should form the basis for disposition has not served girls well. 

Given this, objective risk/needs assessments are a positive development for girls. 

D. Evidence-Based Practice and Girls 

In the late 1990s, social work and other social sciences popularized evidencebased practice (EBP), which originated in the health fields,235 and in the early 2000s 

EBP made its way into juvenile justice. EBPs are practices or programs that 

have been determined effective through rigorous, scientific methods, and because 

they are rigorously evaluated, they are considered by many to be the best possible 

interventions and services to achieve specific outcomes.236

In the last ten years, the movement favoring EBP in juvenile justice has 

become firmly rooted, reinforced by federal funding requirements that increasingly favor programs with an evidence base.237 The movement in favor of EBP in 

juvenile justice has professionalized the field and improved outcomes in many 

systems.238 In fact, it is striking that juvenile justice systems have continued for so 

long without the use of EBP or other proof of positive outcomes.239

However, the EBP movement in human services has been criticized, often 

in ways that are directly relevant to girls and other minority populations in the 

233. See Meda Chesney-Lind & Francine Sherman, Gender Matters in Juvenile Justice, N.Y.L.J., Dec. 7, 

2010, at 6; supra text accompanying notes 85–119, 213–216. 

234. Geraldine A., No. D-16725/09, slip op. at 32. 

235. EVIDENCE-BASED REHABILITATION:A GUIDE TO PRACTICE 4 (Mary Law & Joy MacDermid 

eds., 2008). 

236. See Roger K. Warren, Evidence-Based Sentencing: The Application of Principles of Evidence-Based 

Practice to State Sentencing Practice and Policy, 43 U.S.F. L. REV. 585, 597 (2009). 

237. See, e.g., Soler, Shoenberg & Schindler, supra note 19, at 488–93; Blueprints for Violence Prevention: 

Overview, UNIV. COLO. BOULDER INST. BEHAV. SCI., http://www.colorado.edu/cspv/blueprints/ 

index.html (last visited July 9, 2012). See generally Peter W. Greenwood & Susan Turner, Establishing 

Effective Community-Based Care in Juvenile Justice, in JUVENILE JUSTICE, supra note 38, at 477. 

238. See Jeffrey A. Butts & John K. Roman, Better Research for Better Policies, in JUVENILE JUSTICE, supra 

note 38, at 505. The authors argue for careful and clearly explained juvenile justice research to 

inform policies and programs. While they agree that the evidence-based practice (EBP) movement 

advanced the science behind juvenile justice, they reject the notion that there is one methodology or 

approach suited to all the research needs of juvenile justice systems. Id. 

239. See Diane M. Myers & Anne F. Farrell, Reclaiming Lost Opportunities: Applying Public Health Models 

in Juvenile Justice, 30 CHILD.&YOUTH SERVICES REV. 1159 (2008) (tracking dismal outcomes). 
Justice for Girls 1625 

juvenile justice system.240 First, despite the increasing use of data by juvenile 

justice systems and programs, many programs do not have the capacity to mount 

the level of scientific research needed to establish a program as evidence based, 

leaving effective innovations unable to compete for federal funding and ultimately 

unlikely to continue. This is particularly problematic for programs serving minority 

populations (including girls) and those located in minority communities, where 

the number of youth in a program might not support the level of evaluation needed 

to establish an evidence-based practice. Critics argue that promising innovations, 

and particularly those tailored to and effective with minority cultures, are losing 

financial support and disappearing as a result. This leaves minority communities 

with programming poorly suited to their specific needs. 

Girls exemplify this concern. As part of an agenda to promote research needed 

to better understand and make local decisions regarding girls in the justice 

system, the Girls Study Group tried to identify “promising programs, program 

elements, and implementation principles.”241 Out of sixty-one programs identified 

as specifically targeting girls’ delinquency, it found that forty-four had not been 

studied. Of the remaining seventeen that had been studied, the Girls Study Group 

found none had conclusive evidence of effectiveness.242 For example, it faulted 

the research design in eleven of the programs as inadequate to determine whether 

positive outcomes were the result of the program or some other factor.243 The 

GAO investigated the Study Group’s approach to promoting effective girls’ 

programming and found that programs were being held to the high standards 

required for evidence-based practices. Some of the experts interviewed by the GAO 

believed those standards were unrealistically high and burdensome, resulting in 

positive programs failing to achieve EBP classification.244 Despite much work 

and funding, little guidance had been provided to the field about how to develop and 

measure successful programming for girls, and the standards used to assess success 

may have resulted in successful programs and program elements being overlooked. 

The GAO report prompted OJJDP to provide additional training and technical 

240. See Butts & Roman, supra note 238; infra note 246. 

241. EILEEN REGEN LARENCE, U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-09-721R, JUVENILE 

JUSTICE: TECHNICAL ASSISTANCE AND BETTER DEFINED EVALUATION PLANS WILL 

HELP TO IMPROVE GIRLS’ DELINQUENCY PROGRAMS 4 (2009); see also Girls in the Juvenile 

Justice System: Strategies to Help Girls Achieve Their Full Potential: Hearing Before the Subcomm. on Crime, 

Terrorism & Homeland Sec. of the H. Comm. on the Judiciary, 111th Cong. 6–8 (2009) (testimony of 

Eileen R. Larence, Dir., Homeland Sec. & Justice Issues, U.S. Gov’t Accountability Office). 

242. LARENCE, supra note 241, at 6.

243. Id.

244. Id. 
1626 59 UCLA L. REV. 1584 (2012) 

assistance to the field about program evaluation. Moreover, in fiscal year 2011, 

OJJDP awarded evaluation grants to promising girls’ programs in an effort to 

further develop the evidence needed to determine what works for girls.245

A second critique is that evidence-based practice is too rigid a frame to capture 

all that makes juvenile justice programming effective and removes the individualized quality central to social work and juvenile justice programming. Critics 

argue that evidence-informed practice, which would combine evidence with craft, 

is a better goal.246 An evidence-informed practice approach would be more flexible 

and more reflective of instincts developed through a range of professional experiences, which, while not easily quantifiable, might be more effective among 

diverse populations. 

Finally, a critique drawn from women’s international development work seems 

most apt.247 Success for girls in the justice system (like women in developing 

countries) requires social change, and the methodology used to identify evidencebased practices does not measure, or even really consider, social change. Although 

evaluation for EBP does not preclude other types of research, the emphasis on EBP 

to the exclusion of other ways of thinking about interventions reduces the focus on 

ways to promote and measure social change.248

As we have seen, the entry of misbehaving and high-need girls with low 

levels of criminality into the juvenile justice system is perhaps the most consistent 

and intransigent problem reformers for girls face.249 This problem has existed 

245. Funded programs were considered “promising” under the Girls Study Group’s original criteria. One 

example is Girls’ Circles, used in many probation departments and community based programs, which 

is being evaluated (under an OJJDP grant) to determine whether it rises to the level of an evidencebased program. See Current Research,ONE CIRCLE FOUND., http://www.girlscircle.com/research.aspx 

(last visited July 9, 2012). 

246. See generally Eileen Gambrill, Evidence-Informed Practice: Antidote to Propaganda in the Helping 

Professions?, 20 RES. ON SOC. WORK PRAC. 302 (2010); Craig Winston LeCroy, Knowledge 

Building and Social Work Research: A Critical Perspective, 20 RES. ON SOC. WORK PRAC. 321 

(2010); Edward J. Mullen & David L. Streiner, The Evidence for and Against Evidence-Based Practice, 

4 BRIEF TREATMENT & CRISIS INTERVENTION 111 (2004); Aron Shlonsky & Leonard 

Gibbs, Will the Real Evidence-Based Practice Please Stand Up? Teaching the Process of Evidence-Based 

Practice to the Helping Professions, 4 BRIEF TREATMENT & CRISIS INTERVENTION 137 (2004). 

247. See SRILATHA BATLIWALA & ALEXANDRA PITTMAN, ASS’N FOR WOMEN’S RIGHTS IN DEV., 

CAPTURING CHANGE IN WOMEN’S REALITIES—THE CHALLENGES OF MONITORING 

AND EVALUATING OUR WORK (2010); IRENE GUIJT ET AL., CTR. FOR DEV. INNOVATION,

EVALUATION REVISITED: IMPROVING THE QUALITY OF EVALUATIVE PRACTICE BY 

EMBRACING COMPLEXITY (2011); ALLAN KAPLAN & SUE DAVIDOFF, THE PROTEUS 

INITIATIVE,THE SINGER,NOT THE SONG:THE VEXED QUESTIONS OF IMPACT MONITORING 

AND SOCIAL CHANGE (2011). 

248. See Butts & Roman, supra note 238. 

249. See supra text accompanying notes 24–40, 108–114, 209–216. 
Justice for Girls 1627 

since the formation of the U.S. juvenile justice system and continues today. Over 

time, a range of laws and system practices has perpetuated this overintervention. 

When one practice is removed (for example, through the deinstitutionalization 

of status offender mandate in 1974),250 another surfaces (such as the current practice of arresting girls disproportionately for home-based violence).251 Data-driven 

approaches, when used intentionally to provide jurisdictions with the insights 

needed to identify and ultimately address systemic bias, will benefit girls and 

create fairer systems. But ultimately, one must conclude that only real social 

change—changed attitudes and appreciation of girls—will resolve the issue in a 

meaningful and lasting way. 

CONCLUSION

In 2012, twenty years after the Juvenile Justice and Delinquency Prevention 

Act instructed states to assess their systems for gender responsiveness, girls continue 

to be detained and committed for offenses that would not result in similarly harsh 

treatment for boys. The social expectations that girls be obedient, modest, and 

behave cautiously motivate a continuation of structural gender bias as well as combined gender and race bias that has had remarkable longevity. Arrests for domestic 

battery and prostitution-related offenses now supplement the continued net of 

status offenses and technical probation and parole violations that draw girls into 

the juvenile justice system. 

However, we are at the beginning of a more developmentally centered and 

data-driven age in juvenile justice in which systems have the tools to be more reflective and intentional in policy and practice. Improved understanding and court 

recognition of child development’s role in juvenile justice policy, coupled with 

federal recognition of girls’ developmental needs, suggests that a more complete 

understanding of girls’ behavior in their homes and on the streets will guide future 

policy. The increased use of data in juvenile justice systems is particularly promising given the hidden nature of so much of the gender-based inequity in justice 

system practices. 

Over time, the juvenile justice pendulum swings from a rehabilitation focus 

to placing more emphasis on punishment, and then back again—progress has 

not been linear. Each pendulum swing looks a little different, reflecting advances 

in our knowledge and approach to youth. This has been true of policies for girls in 

250. See supra text accompanying notes 32–37. 

251. See supra text accompanying notes 108–126. 
1628 59 UCLA L. REV. 1584 (2012) 

the justice system as well. Although we appear to be repeating past mistakes by 

sweeping girls into the system when they are victims of domestic violence, the 

system itself is more aware of girls’ needs, the outcry is quicker and more informed, 

and practices are measured against a progressive movement away from secure 

confinement for youth. In this way, we are making progress, despite the 

understandable frustration of those who have watched the pendulum over time. 

As we once again enter a more hopeful era in juvenile justice, consistent 

federal leadership to reduce structural gender bias is essential for girls to be a full 

part of this positive pendulum swing. Juvenile justice reformers must utilize the 

tools now available to them to prevent repetition of unconscious gender discrimination and create a fairer and more positive justice for girls.