An Open Letter to U.S. Senator Tom Cotton

Judge Steven TeskeDear Senator Cotton:

I am writing in regards to the concerns you recently expressed on the floor of the U.S. Senate about removing the Valid Court Order Exception from the Juvenile Justice Delinquency Prevention Act (JJDPA).

I have read what media outlets have quoted you saying: “I am concerned that the bill eliminates completely the ability for judges to order secure confinement for a short time in instances where a status offender flagrantly violates the judge’s prior order for him to, say, enter into rehabilitation, counseling, or take part in other treatment services. In such narrow circumstances, it may be prudent.”

I have heard through the grapevine — which I am very cognizant as a judge that such hearsay may be false, innuendo, or if grounded in truth its original form is oftentimes lost in translation or embellished, exaggerated, and sometimes mutilated beyond recognition as it goes from vine to vine — that you are also concerned it may “violate” a judge’s inherent right to enforce his or her own orders.

Notwithstanding the likelihood the latter is merely the product of someone’s selective hearing or from a dream they can’t separate from reality, I will in an abundance of caution discuss this notion of “violation” and “inherent powers,” and also because some do hold this notion to be true and maybe, just maybe, my response may resonate in some way with them.

Before I delve into your concern, allow me to lay some foundation about my connections to your great and beautiful state of Arkansas to establish, I hope, some credibility regarding my understanding of your juvenile justice system and the excellent leadership all around.

I have traveled many times in my professional capacity to your state.

In fact, your former governor, Mike Beebe, honored me by bestowing the “Arkansas Traveler” declaration. My many travels to Arkansas have included keynotes, training for juvenile justice employees, technical assistance to local communities specific to reducing the use of detention in school related cases and for status offenders, and most recently to testify on two separate occasions before your Legislature regarding reforms — the Juvenile Justice Task Force convened by Gov. Asa Hutchinson and the state Senate Committee on Children and Youth.

I had the pleasure to sit down with Gov. Hutchinson and break bread one evening to discuss, amongst a clean joke or story here and there, juvenile justice reform; the most effective approaches, and the devilish details of advancing community safety while simultaneously saving millions of taxpayer’s dollars using programs and practices that appear soft on crime, but are in fact right on crime.

Did I say “right on crime?”

What a coincidence because Gov. Hutchinson is a signatory to the Statement of Principles of the Right on Crime organization that promotes a conservative approach to criminal justice. I strongly encourage you to read these principles and better yet, I implore you to read the conservative position on juvenile justice.

I am hopeful you will turn away with a different perspective on what is the “conservative” approach to adult and juvenile justice, and as these pages of conservative thinking propound, the over-criminalization of children is the antithesis of the most basic principles of conservative thought: Public Safety, Right-Sizing Government, Fiscal Discipline, Victim Support, Personal Responsibility, Government Accountability, Family Preservation, and Free Enterprise.

A conservative approach must be grounded in practical approaches for which the pillars of strength include empirical evidence that points to what works, and shuns that which doesn’t because the “doesn’t” not only waste taxpayer dollars, but compromises community safety.

Here’s the rub: The notion that conservative thinking on criminal justice is derived from a “Get Tough” stance is a myth. Unfortunately, conservative values that underscore what really works in criminal and juvenile justice are too often displaced by the misinformed or lost in the political rhetoric of “Get Tough” messaging to garner votes on campaign trails and in legislative chambers and hallways.

The truth be told, when true conservative principles are smartly applied to the intricate and complex issues of crime prevention and recidivist reduction, the “Get Tough” approach takes a back seat to community-based programming for one very practical reason: Inappropriate use of incarceration exacerbates crime.

The “Get Tough” rhetoric in all its political sexiness is a great vote catcher, but in so doing it compromises public safety, wastes taxpayer dollars, and reduces economic mobility.

No one is saying incarceration is never appropriate. Incarceration is justified when youth are at a high risk of harming others, but the undisputed fact is that approximately 70 percent of incarcerated youth are non-violent.

This fact is troubling considering that studies show that incarcerating lower-risk youth, like status offenders, increases recidivism, and that facilitates an increase in crime. Just the act of arresting a student on school campus doubles the odds she or he will drop out of school and increases by four times the chances the boy or girl will appear in court. Imagine the impact on status offenders who aren’t delinquent.

Take, for example, studies conducted in Arkansas in which it was found that “the experience of incarceration is the most significant factor in increasing the odds of recidivism.” It was no surprise that 60 percent of incarcerated Arkansas youth re-offended within three years given that two-thirds of those youth were confined for non-violent offenses.

If it’s any consolation, my state of Georgia found similar outcomes when our governor (also a Republican) created the Criminal Justice Reform Council with 65 percent of incarcerated youth re-offending within three years. The saddest part of this juvenile justice debacle was that it cost the taxpayers $90,000 annually for each kid incarcerated.

Conservatively speaking… not a good thing!

What’s worse is knowing there exists safer community-based alternatives that effectively reduce recidivism and promote public safety.

We needed to rethink juvenile justice to get the biggest bang for the taxpayer buck.

Georgia’s conservative approach of eliminating the VCO exception and reducing the incarceration of non-violent and low-risk youth will save the State upwards of $85 million of which a portion of these cost savings are re-directed into a reinvestment program for juvenile justice.

For the first time in my nearly two decades on the bench I am receiving funding for evidence-based programs such as Functional family Therapy, Multi-Systemic Therapy, Cognitive Restructuring, and more.

Many judges once skeptical of reducing their discretion to incarcerate are now benefitting from programs that work. We have come to learn that it’s not the discretion to incarcerate that matters, but the discretion to choose from an array of community-based programs.

Even before my governor, Nathan Deal, initiated state-wide reforms, I set forth reform policies in my county beginning in 2001 that resulted in an 86 percent decrease in our average daily detention population, a 72 percent decline in commitments, and a 91 percent reduction in arrests on school campuses.

Despite what appears to be “soft on crime,” our juvenile arrests decreased 71 percent.

Why? We replaced incarceration of status offenders and low-risk youth with community based programs proven effective.

I think I can speak with confidence on behalf of many judges that we appreciate your concern that this bill will deprive us of our ability to enforce our orders. We always appreciate a legislative voice in support of judicial discretion, especially in matters involving the enforcement of our orders.

Notwithstanding our appreciation, I would be remiss if I didn’t point out that this bill is without constitutional authority to mandate judicial discretion at the state level. This bill merely seeks to influence States to refrain from incarcerating status offenders by using Congress’ power of the purse. Given your impressive legal background, I am sure that is what you meant, but as you know, semantics can make or break just about anything.

The irony of this discussion is that we are debating an issue for which an overwhelming majority of States agree that the VCO exception is more harmful than helpful—my conservative State of Georgia included.

In fact, some States have thumbed their nose at Congress and ignored the four core protections of the JJDPA while on the other hand, states like Georgia did not wait for Congress to remove the VCO exception and pre-emptively removed that discretion from judges.

Judges look to their legislature for discretion. There is nothing “inherent” about it if the legislature expressly speaks to it. In Georgia, I once had the discretion to lock-up a status offender. Now I don’t.

The legislature giveth, and the legislature taketh away.

When the removal of the VCO came before our Republican controlled Legislature, they found the evidence overwhelming. It passed unanimously!

Why? It was the conservative thing to do.

It saved taxpayer dollars for reinvestment into programs that work that in turn increases public safety and betters the economy. I think what resonated the most with my conservative colleagues is that a reduction in crime always translates into less victimization—less pain and suffering.

Speaking of victim support, status offenders don’t victimize anyone but themselves.

It’s never a good thing to incarcerate a victim, even if they make you mad.