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U.S. Supreme Court Questions If Juvenile Killers Should be Given Second Chance

The U.S. Supreme Court heard arguments today in the cases of two offenders, sentenced at a young age to die in prison, and may choose to further limit such sentences for minors.

Kuntrell Jackson of Arkansas and Evan Miller of Alabama were both 14 years old when they were convicted of a homicide, and both were sentenced to life sentences without the possibility of parole (LWOP). For more on the background of their cases, click here.

A juvenile's "deficits in maturity and judgment and decision-making are not crime specific," said Bryan Stevenson, who represented both offenders. "All children are encumbered by the same barriers."

Stevenson argued that this was the inevitable conclusion to be drawn from the court’s other two recent cases on juvenile sentencing, Roper v Simmons and Graham v Florida.

Roper’s ban on the death penalty implicitly “acknowledged a difference in murder” between juveniles from adults in murder cases, Stevenson argued, and Graham’s abolition of LWOP sentences for juveniles convicted of non-homicides distinguished the two when it came to an opportunity for parole.

In each case, the state’s sentencing structure mandated an LWOP sentence for the crimes of which the two teens were convicted. Stevenson, representing both offenders, attempted a balancing act between challenging the entire practice of juvenile LWOP sentencing and specifically attacking the mandatory sentencing structures that lead to many of those sentences.

Stevenson, the director of the Montgomery, Ala.-based Equal Justice Initiative, made it clear that his preference was for a categorical ban on LWOP sentences for any offender under the age of 18. Justice Samuel Alito wondered why such a ban should assist someone who is “17 years, 10 months” with “great maturity.”

Justice Antonin Scalia asked Stevenson what could reasonably replace LWOP for juveniles, suggesting the hypothetical sentence of 50 years without the possibility of parole?

"If this Court were to say we ban life without parole for these kinds of offenders, it would be somewhat problematic to suggest that we're going to get  as close to death as possible and then facilitate some kind of review," Stevenson replied.

That is already an issue that has arisen in the aftermath of the Graham case, with some Florida judges using sentences of more than 50 or 60 years to replace the LWOP sentences handed down to juvenile non-homicide offenders.

Stevenson told Justice Ruth Bader Ginsburg that an opinion that only rolled back the mandatory imposition of LWOP on juveniles “would not satisfy me.” But pressed by Justices Kennedy and Sonia Sotomayor on what other than a categorical ban might suffice, Stevenson suggested a bifurcated decision that would split adolescents into two groups: 14 and under, and 15 to 17.

Stevenson suggested an outright LWOP ban for the teens under 15, and a requirement that LWOP for older teens could not be part of a mandatory sentencing scheme; that such a sentence would have to be subject to individual review.

Alabama Solicitor General John Neiman argued that the court should not extend past the Graham ruling on LWOP because "Graham's culpability is twice diminished: once because he was a juvenile and once because he had not committed murder," Miller, he said, is entitled only to protection from the death penalty as a juvenile.

Neiman told the court he knows of no studies that show juvenile offenders are more amenable to rehabilitation in adult correctional settings than adults are, a point that Stevenson later disputed.

The prospect for rehabilitation is an ancillary point, Neiman argued. “Retribution is the primary goal. Society doesn’t want to roll the dice on convicted murderers.”

The arguments of Stevenson and Neiman appeared stymied at times by a lack of hard data. Justices asked for, and did not receive, figures on how many juveniles received LWOP within a mandatory scheme and how many had been offered a plea before conviction.

No number was offered on the latter during arguments; Stevenson pointed out that approximately 85 percent of all juvenile LWOP sentences occurred in states where there were mandatory sentences for homicides, and Justice Stephen Breyer mentioned an estimate that 71 of the 79 LWOP offenders under 15 had received the sentence because it was mandatory.

Justice Scalia queried as to how Stevenson could argue a national consensus against sentencing juveniles to life without parole when “something like 39 states allow it?”

Stevenson then made an argument that drew quick retort from conservative justices on the bench: That most state legislators set no threshold on what age a juvenile can be transferred to adult court, which means they have not really addressed it and are perhaps even unaware that juveniles are subject to mandatory LWOP sentences.

Challenges to his assertion dominated the rest of Stevenson’s time. “If a state allows for it,” asked Chief Justice Roberts, “have they not addressed it?”

Justice Anthony Kennedy, who wrote the majority opinions in Graham and Roper, also questioned Stevenson’s logic on that count.

With 2,300 juvenile LWOP inmates, “it’s difficult to suggest the legislators aren’t aware” juveniles are receiving the sentences, said Justice Kennedy, who wrote the majority opinions in Graham and Roper. [The estimated number of inmates is actually 2,570, according to the according to The Campaign for the Fair Sentencing of Youth].

“If states don’t realize” that their juveniles can receive LWOP sentences,” Justice Alito asked, “why don’t you call them?”

Marsha Levick, deputy director of the Juvenile Law Center in Philadelphia, supported Stevenson’s position, saying that many states didn’t “give consideration to the consequences” when they toughened transfer laws in the 1990s.

In Pennsylvania, she said, “we changed our laws in 1995 and the [mandatory] sentencing schemes were already in place.”

During the hour of argument on Jackson v Hobbs, the court did not appear to take much interest in the main difference in the cases, which is that Jackson did not directly cause the death of a victim and Miller did.

The justices went straight into questions when Stevenson stood up on Jackson’s behalf, preventing him from differentiating the case from Miller, and the questions to he and Arkansas Assistant Attorney General Kent Holt focused on mandatory sentencing.

“Why couldn’t a judge have discretion at sentencing?” Kennedy asked of Holt, to which Holt pointed out that in Arkansas, the decision of a prosecutor to subject a juvenile to adult court and LWOP sentences is reviewable. [This is not the case in all states; some allow prosecutors to directly file cases in adult court].

"Isn't the life without parole special enough for an adolescent that you have to let him at least make any mitigating arguments he wants?" asked Justice Breyer, suggesting that LWOP for juveniles might warrant at least the same level of review that a death penalty sentence would for adults.

“That’s not a view that I know has been expressed,” Holt replied.

A group of former juvenile judges from around the country wrote the court in support of Miller and Jackson, arguing that they saw similar teens turn their lives around after being convicted of heinous crimes, including murder.

“Based on decades of experience sentencing juvenile offenders, [we] simply do not believe it is possible to tell which youths will change and which will not at the time of their initial sentencing,” the judges wrote in an amicus brief.

“Notwithstanding this unpredictability,” the brief adds, the judges “believe that individualized consideration is essential at the initial sentencing stage.”

The American Psychological Association (APA) argued in a brief supporting Hobbs and Jackson that younger teens are particularly susceptible to the terrible decision-making that leads to a homicide.

“Older adolescents (aged 16-17) often have logical reasoning skills that approximate those of adults, but nonetheless lack the adult capacities to exercise self-restraint, to weigh risk and reward appropriately, and to envision the future,” the APA brief stated. “Younger adolescents are thus doubly disadvantaged, because they typically lack not only those social and emotional skills but basic cognitive capabilities as well.”

The State of Michigan filed an amicus brief joined by 18 other states urging the court not to interfere with the state’s discretion to use LWOP sentences for all homicide convicts.

“This Court should not casually set aside state sovereignty and sentencing authority, particularly in a controversial area that is still subject to considerable national dialogue and debate.

Reform of juvenile sentencing should be done through democratic, not judicial, channels, the brief argues.

“Depriving American citizens of the opportunity to have a public debate comes at a high cost,” the brief stated. “If this Court holds that LWOP sentences for teenage murderers is unconstitutional, society will not have the opportunity to reach this Court’s understanding of ‘justice’ through public exchanges of information and discussion.”

John DiIulio, a former Princeton professor and faith-based leader in the George W. Bush Administration, predicted a wave of young “super-predators” in the mid-1990s, a prediction that prompted researcher James Alan Fox of Northeastern University to suggest that states include harsher sentences for violent young offenders.

Both signed onto an amicus brief in support of Miller and Jackson, and the brief specifically acknowledged their reticence for earlier forecasts.

“The prediction of a juvenile super-predator epidemic turned out to be wrong; in fact, there was no super-predator generation,” the brief stated. “Professor DiIulio, the original proponent of the juvenile super-predator notion and a signatory to this brief, has repudiated the idea and expressed regret, acknowledging that the prediction was never fulfilled.

“Professor James Fox, who urged that Professor DiIulio’s predictions should drive changes in sentencing laws, also has repudiated the notion of the super-predator and is a signatory to this brief.”

A Look at Youth-Related Spending in Obama’s 2013 Budget

This story originally appeared on YouthToday.

President Barack Obama unveiled his 2013 budget proposal today, which calls for $3.8 trillion in spending and projects a $901 billion deficit for the year. It was quickly met with resistance from Republican leadership.

“The President’s budget falls exceptionally short in many critical areas – including a lack of any substantive proposal for mandatory and entitlement spending reform,” said House Appropriations Committee Chairman Hal Rogers (R-Ky.), in a statement issued this morning.

Rogers promised to “go line by line through the President’s budget, prioritize programs, and make decisions on the appropriate investment of discretionary funds.”

Juvenile Justice

The president would fund the Office of Justice Programs at $1.7 billion in 2013, down from $2.7 billion in 2011 and $2 billion in 2012. The budget would increase spending on the juvenile justice and delinquency prevention programs at the Office of Juvenile Justice and Delinquency Prevention, a division of OJP.

Formula grants to states (Title II): $70 million
2012 appropriation: $40 million

Delinquency prevention grants: $40 million
2012 appropriation: $20 million

Block grants to states (JABG): $30 million
2012 appropriation: $30 million

Mentoring programs: $58 million
2012 appropriation: $78 million

Community-Based Violence Prevention: $25 million
2012 appropriation: $8 million

Other notable items from the Department of Justice proposal:

-A $20 million “evidence-based competitive demonstration program” for juvenile justice reform. This, of course, is the concept that the administration proposed for nearly all juvenile justice funding in 2012.

-Moving the Missing and Exploited Children program funding ($67 million proposed) from OJJDP into the Crime Victims Fund.

-There is $80 million included for the Second Chance Act, which aims to assist states with reentry services for adult and juvenile offenders. There is $20 million set aside within that proposal for “Pay for Success” projects, which is the administration’s term for social impact bonds.

-Obama does not include spending for OJJDP’s Victims of Child Abuse program, or for the Court Appointed Special Advocates program, but does include $23 million for the Defending Childhoodinitiative, created by Attorney General Eric Holder to address the trauma experienced by children who are exposed directly or indirectly to violence.

Education and Labor

The big change for 2013 is Obama’s proposed Community College Initiative, an $8 billion venture that would be carried out jointly by the Department of Education and Labor. This is the project referred to earlier this month in the State of the Union, which is aimed at helping community colleges develop worker-training programs for nearby companies with jobs they cannot fill because the potential employee pool lacks critical skills.

The Education budget also proposes a freeze on interest rates for federal Stafford Loans. The rate is scheduled to double from 3.4 percent to 6.8 percent in July. Obama includes a long-term plan to expand the Perkins Loan program from $1 billion to $8 billion, raising the interest rate on those loans from 5 percent to 6.8 percent and restructuring the program to prevent colleges and universities from increasing tuition costs.

Obama includes $824.4 million for Department of Labor youth activities under the Workforce Investment Act, $80 million for YouthBuild programs, and another $80 million for reintegration of ex-offenders, which is down from $109 million in 2011. The budget would fund the Workforce Innovation Fund at $50 million, down from $125 million in 2012.

Other notable items from the Department of Education:

-$850 million for Race to the Top and $100 million for Promise Neighborhoods in the Education budget.

-Level funding of $1.15 billion for after-school programs through the 21st Century Community Learning Centers.

-The budget would maintain the maximum Pell Grant award at $4,860, but raise it to $5,635 for the 2014-2015 school years.

Health and Family Services

The president’s budget for HHS does not reflect many changes to funding for the Administration for Children and Families, which oversees the majority of family, foster care and adoption services. It does propose $350 million for the Community Services Block Grant, which was funded at $677 million in 2012, but this is not the first budget proposal in which Obama has expressed an interest in cutting back the program.

The expansion of the Maternal, Infant, and Early Childhood Home Visiting Programs was included in the controversial Affordable Care Act, and is slated for an increase from $350 million this year to $400 million in 2013.

The Department of Agriculture budget includes $19.7 billion for Child Nutrition Programs, which is $1.5 billion over the 2012 appropriation. The Women, Infants & Children Program would receive $7 billion, a $400 million increase from 2012.

The Agriculture budget also includes an increase from $264 million to $325 million for theAgriculture and Food Research Initiative, which offers competitive grants for number of potential subjects, including childhood obesity.

Other notable items:

-Within the level-funding proposal of $2.3 billion for the Child Care and Development Block Grant, the president includes $1 million for toll-free hotline and website that parents can use to access local child care services.

-Funds Head Start at $8.1 billion, slightly more than it received in 2012 and significantly more than Obama has requested in the past. The proposal also “supports the implementation of new regulations to strengthen Head Start by requiring low-performing grantees to compete for continued funding,” a process that is actually already underway.

-In the endnotes of the HHS budget appendix, there is mention of a program to reduce pregnancy among youth in foster care. It would consist of competitive grants or contracts, made available in September of 2013, and would be funded by the certain unspent funds from previous fiscal years.

-Within the budget of the Office of National Drug Control Policy, there is $20 million proposed for a drug prevention media program and $88.6 million for the Drug-Free Communities Support Program, which provides small grants to seed local community drug-free coalitions.

Service Learning

Obama proposes $760.5 million for the Corporation for National and Community Service. This includes more or less level funding for AmeriCorps grants ($345 million), the trust that pays out AmeriCorps education stipends ($208.7 million), and the National Civilian Community Corps ($30.1 million).

The budget includes $53.2 million for the Social Innovation Fund. It does not address CNCS’ Foster Grandparents program, which was appropriated about $110 million by Congress in 2011 and 2012.

To see federal spending figures on youth services in 2012, click here. To access the agency-level details for the president's 2013 budget, click here.

Photo by Flickr | rachaelvoorhees

A Q&A With H. Ted Rubin, Tireless Advocate and Chronicler of Youth

The oldest kids in the system when H. Ted Rubin was a Colorado juvenile judge are now 57 years old. But Rubin has never the left the field; he has been a researcher, advocate, and most notably, reporter and author since he left the bench in 1971.

His sixth book, “Juvenile Justice: Policies, Practices, and Programs Volume II,” was just released by Civic Research Institute, for whom Rubin also serves as a regular contributor to the excellent Juvenile Justice Update.

The tome spoons out updates for readers on all aspects of juvenile justice from the front door of the system to deep-end placements, mixing citation of news and research with the author’s opinions on issues and trends. It is part reference and part editorial, a book only a guy with Rubin’s breadth of experience could write with credibility.

Youth Today sat down with Rubin, who was in Washington, D.C. for the annual conference of the John D. & Catherine T. MacArthur Foundation’s Models for Change initiative.

Youth Today: The first volume of “Policies Practices, and Programs” was written in 2003. What would say are the biggest changes to the juvenile justice landscape since you wrote it?

H. Ted Rubin: We’re in a really good time of making great progress when it comes to dealing with kids who break a law, or who cause problems at school. There’s a long way to go.”

There are two foundations, MacArthur and Casey, that have helped that along sizably.

YT: Is there any aspect in which you feel the field has regressed since your first volume?

HTR:  The termination of people working with kids in the system and in private nonprofits. And where we’ve not made nearly enough headway is DMC [disproportionate minority contact]. That’s really a purpose of Casey and MacArthur. And it’s Congress that said states have to evaluate DMC and implement a plan.

YT: Do you view DMC as a reason to solve problems or a problem to solve?

HTR: “DMC is a separate thing. It’s not just a police function, but that’s some of it.  [Columbia University researcher] Jeff Fagan talks about changing the reward structure of police so that they could be rewarded for steering a kid to the Boys & Girls Club. Right now, it’s making arrests. And the easiest arrests are minority youths, and schools further that.”

YT: David Simon (former journalist and creator of “The Wire”] spoke at the conference yesterday and argued that the justice system won’t get past its obsession with drug-related cases until “they can't find 12 Americans to put a 13th in jail”…in other words, jury nullification. Your thoughts?

HTR:  I can’t see that happening for a long time. I was a judge from 1965 to 1971, at the end I was just beginning to see drug cases. Alcohol possession was a small fine, no probation involved. Glue-sniffing was a huge problem with Hispanic kids.”

YT: You rip the Office of Juvenile Justice and Delinquency Prevention a little in the book for not doing anything to push the delinquency guidelines the office helped create through funding to the National Council of Juvenile and Family Court Judges. What do you think OJJDP should do in relation to the NCJFCJ guidelines?

HTR:  “They should fund a model court or two to adopt the guidelines and help them implement them. These were good guidelines, I have no idea why they didn’t do it.”

YT: You have a whole chapter on peer contagion. Is there a place at all for group homes in juvenile justice; is the peer contagion aspect of that setting too much to overcome a quality staff and program?

HTR: We should be going more toward one-on-one.  But I do like the idea of work crews where court kids can take care of a park, and get money from city or county so they are able to pay off restitution. Payback, Inc. in St. Louis is one, they enable kids to do their restitution by working it off.

YT: If you could see one single change happen nationwide before you’re done working in juvenile justice, what would it be?

HTR: Progress on DMC. When you get a record, even an informal one, the next time it’s formal. So I just want lowering commitments of minority kids.

 

The above interview was published in Youth Today on Dec. 7, 2011

Photo: Juvenilelaw.net

Congress Makes Further Cuts to Juvenile Justice Funding

House and Senate appropriations leaders finalized a “minibus” spending package that further reduces the relevance of the Office of Juvenile Justice and Delinquency Prevention, and possibly jeopardizes the office’s connection with state governments.

The bill - which funds the Departments of Agriculture, Commerce, Justice, and Housing and Urban Development – trims the allocation from an already-reduced $275 million in fiscal 2011 to $262.5 million for fiscal 2012.

The minibus package contains another continuing resolution allowing the government to operate through December 16.

The structure of the juvenile justice funding comes from the Senate Appropriations Committee’s bill, which drastically reduced funding but kept some for each program of the Juvenile Justice and Delinquency Prevention Act.

Under the agreement reached by appropriations confereees, the funding levels for OJJDP’s biggest programs, which include state formula grants, mentoring and missing and exploited children, more closely mirror what was proposed by the House appropriators.

These are the funding levels, by fiscal year, for the office's major programs:

Title II Formula Grants to States
2012: $40 million
2011: $62 million
2010: $75 million

Title V Grants (Delinquency Prevention)
2012: $20 million
2011: $54 million
2010: $65 million

Juvenile Accountability Block Grants (JABG)
2012: $30 million
2011: $45.65 million
2010: $55 million

Mentoring
2012: $78 million
2011: $83 million
2010: $100 million

Missing and Exploited Children
2012: $65 million
2011: $58.1 million
2010: $70 million

Victims of Child Abuse
2012: $18 million
2011: $18.68 million
2010: $22.5 million

Community-Based Violence Prevention
2012: $8 million
2011: $8.3 million
2010: $10 million

Prospects on what will happen with the formula funds are complicated. The funds are allocated to the states in exchange for their compliance with four core standards of juvenile justice operations: not detaining or incarcerating status offenders; keeping all juveniles out of adult jails, and separating them by sight and sound from adult detainees in the rare exceptions when jail is allowable; and addressing disproportionate minority contact in the system.

Title II funds are dispersed based on the under-18 population in each state, but nearly half the states receive the “minimum allocation” of $600,000. OJJDP can lower that minimum if the total amount for Title II drops below $75 million.

Last fiscal year, the department chose to keep the $600,000 allocation, and make the states with larger youth populations absorb 36 percent cuts.

If the department maintains the minimum allocation again in 2012, the more populous states would receive an even larger cut and some states have said they might consider opting out of participation in the JJDPA.

On the other hand, if they lower the minimum allocation, some juvenile justice advocates believe some of the smaller states will almost certainly opt out.

The entire Title V appropriation in the bill is consumed by tribal youth programs, Enforcement of Underage Drinking Laws (EUDL), and gang prevention, which means that no money will go to state advisory groups (SAG) to use for delinquency prevention projects.

President Barack Obama initially proposed a massive overhaul of juvenile justice spending for 2012, which would have combined the 2010 totals for formula grants and JABG, reduced it by $10 million, and created a $120 million Juvenile Justice System Incentive Grants program.

After the plan drew sharp criticism from some juvenile justice advocates and state juvenile justice leaders, the administration backed off the plan and pushed for $80 million in formula grants and $30 million for JABG, along with a new $10 million incentive grant competition.

Appropriators also provided $10 million for Attorney General Eric Holder’s Defending Childhood Initiative, which seeks to assist children who have witnessed or experienced violence. Among the other Justice appropriations that could end up going toward serving juvenile offenders:

-$63 million for the Second Chance Act, which assists adult and juvenile offenders reentering the community after incarceration, and had been zeroed out completely from the Senate’s appropriations bill.

-$20 million for sex offender management assistance under the Adam Walsh Act

-$15 million for “competitive grants to improve the functioning of the criminal justice system, to prevent or combat juvenile delinquency, and to assist victims of crime.”

The Department of Agriculture appropriations in the minibus agrement include $18.2 billion for Child Nutrition, more than a billion over the appropriation for 2010, and $6.6 billion for Women, Infants and Children (WIC), a $700 million decrease from the 2010 figure.

Click here to view documents related to the minibus agreement.

Photo credit: Will Palmer/Flickr

Casey Foundation Effort Aims to Half Incarceration of Juveniles

The Annie E. Casey Foundation is commencing a new juvenile justice initiative aimed at reducing juvenile incarceration by 50 percent in 10 years, beginning with the release of a report that makes the case for such a drastic reduction.

“An avalanche of research has emerged over the past three decades about what works and doesn’t work in combating juvenile crime,” stated the report “No Place for Kids,” written by freelance reporter Richard Mendel for the Baltimore-based foundation. “We now have overwhelming evidence showing that wholesale incarceration of juvenile offenders is a counterproductive public policy.”

Bart Lubow, Casey's director of programs for high-risk youth, said the foundation will begin work next year with a series of states where officials want to make policy shifts that will affect their reliance on youth correctional facilities.

“The report marks the launch of an extended period of work intended to limit youth incarceration and replace it with a dispositional system that will work better and  produce better results,” Lubow said in an interview with Youth Today.

The foundation will employ a strategy similar to the one it used for the Juvenile Detention Alternatives Initiative (JDAI), which uses the development of a risk assessment to help states, counties and cities reduce their reliance on juvenile detention centers, where some youths are held before facing a judge.

As with JDAI, Lubow said, Casey will begin with intensive work in a handful of counties and, once functional models have been developed, provide technical assistance as statewide reform becomes possible.

Among the focal points of the project, he said, will be “changes that narrow the pipeline of cases coming into court, … improving community-based options,” and ensuring that “the right kids are in the right programs.”

A number of states, most notably California and Texas, have drastically reduced the number of juveniles confined in large state facilities in the past five years. Closure of some facilities has followed in both states, and neither experienced an uptick in juvenile arrests as they relied on less incarceration.

“That was done in the absence of genuine national consensus,” Lubow said. “Part of what we hope to do is give some coherence” to the push for less incarceration.

Today’s report pieces together established research to explain why some states should rethink the extent to which they use secure confinement. It focuses on five main points:

Safety: Fifty-seven lawsuits against juvenile justice systems in the U.S. have resulted in court-ordered action, and 52 included allegations of “systemic problems with violence, physical or sexual abuse by facility staff and/or the excessive use of isolation or restraint.” In 46 of the lawsuits, plaintiffs alleged an excessive reliance on isolation and restraints to control juvenile populations.

Effectiveness: Recidivism calculations vary from state to state. The report charts available recidivism figures from two dozen states, and some of the figures are dismal. A New York study of incarcerated boys found that 83 percent had been re-arrested for a felony offense within three years of release; three-year measures of returns to correctional custody in six states yielded recidivism rates between 16 percent and 62 percent.

Misuse: While the public and most lawmakers presume that incarceration is used for the most serious juvenile offenders, just 26 percent of the 150,000 juveniles placed in residential programs during 2007 committed a violent index offense.

Better, Cheaper Alternatives: Evidence-based programs such as Multisystemic Therapy and Functional Family Therapy have emerged as more effective and less expensive alternatives for juveniles, the report stated. In Florida, a redirection initiative that sent nearly 3,000 juveniles to such programs instead of secure or residential confinement yielded $41.6 million in savings.

The average cost of incarcerating a youth is about $80,000 per year, according to an estimate by the American Correctional Association.

Lack of Services: Drawing mostly from responses to the Justice Department’s 2010 Survey of Youth in Residential Placement, the report stated that most facilities fail to provide adequate education programs, mental health treatments and substance abuse interventions.

“You hear about all of this in different strands: the ineffectiveness of institutionalization and declining numbers in some states,” said Vincent Schiraldi, the commissioner of probation for New York City, who had read the report. “This report makes you see the sum of the parts, so it’s added value in that sense.”

The report recommends the priorities Lubow mentioned for Casey’s forthcoming initiative, specifically, limiting the universe of charges for which incarceration can be an option, and realigning the financial structure of juvenile justice systems such that more funding flows to community-based alternatives. The report also recommends that states with large prison-like secure buildings replace them with smaller ones designed for treatment.

Lubow said Casey has no intention of pushing a specific threshold of offenses for which incarceration is an option in any state.

“That’s not our role, nor do I think any [system] would put much stock in our opinion,” Lubow said. “What we are saying is: Right now, we have gone way to the extreme in terms of locking up low-risk and high-need cases.”

This story originally appeared in Youth Today.

Photo credit: Richard Ross

Senate Committee Approves Funding to OJJDP, With Cuts

The Senate Appropriations Committee approved a spending bill this afternoon that would fund the Office of Juvenile Justice and Delinquency Prevention Programs at $251 million, approximately $24 million below the diminished budget that the agency faced this fiscal year after a last-minute spending deal.

The committee broke up the $251 million in spending this way:

-$60 million for the missing and exploited children programs.

-$55 million for mentoring grants.

-$45 million for state formula grants, given to states on the condition that they adhere to basic standards in regard to the detainment of juveniles, and address racial disparities in the system.

-$30 million for Juvenile Accountability Block Grants (JABG), which go to state juvenile justice planning agencies based on the size of a state’s youth population.

-$20 million for the Victims of Child Abuse Programs.

-$15 million for tribal youth

-$10 million for alcohol-abuse prevention

-$8 million for gang and youth violence prevention

-$8 million for the Community-Based Violence Prevention Initiative, a project conceived by the Obama administration in 2009.

Those specific lines may be important if and when there is a conference involving the  Senate and House funding legislation, because the House Appropriations Committee approved a funding bill in August that would spend just over $200 million on Office of Juvenile Justice and Delinquency Prevention programs, but eliminates most federal funding for actual juvenile justice activities.The bill is expected to receive a vote from the full House soon.

The House committee cut juvenile justice demonstration grants, Juvenile Accountability Block Grants (JABG) and Title V Local Delinquency Prevention Grants out of its 2012 bill. House appropriators also reduced state formula grants from $75 million in 2010 to $40 million for 2012. But its bill included $10 million more than the Senate for missing and exploited children programs ($70 million) and $28 million more for mentoring ($83 million).

The appropriations vote came after national juvenile justice advocates teamed up on a lobbying campaign where organizations and leaders from the home states of appropriations committee members wrote letters to the senators, asking for: $80 million in state formula grants, $65 million for delinquency prevention programs, and $55 million for JABG.

Although the Senate committee included smaller amounts than that for each program, it kept each of them alive.

The committee report lays out $33 million for “Title V – Delinquency Prevention Incentive Grants,” which are supposed to be distributed by state advisory groups. But the committee instead designated all of the funding for tribal youth, alcohol prevention and youth violence prevention.

Overall Department of Justice funding is set at $26.9 billion in the Senate bill, a decrease of $482 million from 2011. It includes $232 million for the Community Oriented Policing Services (COPS) program, which is eliminated in the House version, and a $307 million increase in funding for Bureau of Prisons salaries and expenses.

The Senate recommended $489 million for juvenile justice programs in fiscal 2011, a $66 million increase from fiscal 2010. But a last-minute deal to avert a federal government shutdown slashed the OJJDP budget, cutting the total appropriation for juvenile justice activities to $275 million, a $148 million drop from fiscal 2010.

Among the other youth-related spending recommendations approved by Senate Appropriations today:

-Elimination of Second Chance Act funding: “In order to pay for a nearly half a billion increase” for federal prison costs, the committee wrote in its report, it “regrettably provides no funds for the Second Chance Act.”

The act, a bipartisan bill signed by President George W. Bush in 2008 and funded at $100 million the past two years, funds efforts to help adult and juvenile offenders returning to the community after a period of incarceration.

The House included $70 milllion for Second Chance Act programs.

Sen. Patrick Leahy (D-Vt.), who chairs the Senate Judiciary Committee, reiterated his  concern over the cut, which he expressed at yesterday’s subcommittee markup of Justice spending.

“As anybody in law enforcement knows, the vast majority of people you lock up, someday are going to come out,” said Leahy, a former state’s attorney in Vermont. “And it costs a lot more money when they go back in.”

Leahy declined to offer an amendment restoring some of the funding, but may seek to include it when the bill comes up for consideration by the full Senate.

-Reduction in Research, Evaluation and Statistics: The recommendation includes $121 million for such work at Justice, most of which is carried out by the Bureau of Justice Statistics and the National Institute of Justice. Last year’s appropriations included $234 million for research and evaluation.

-Protection  of  Walsh Act implementation: The committee recommends $395 million for Byrne Justice Assistance Grants (JAG), the pot of money from which a state out of compliance with the Adam Walsh Act would lose 10 percent. Among other things, the Walsh Act requires states to establish a sex offender registry that adheres to certain national standards, including the addition of certain juvenile offenders.

Only 14 states have complied with the act so far, with many other states voicing financial and philosophical concerns about implementing a compliant registry.

With a $395 million mark in the Senate and $347 million from the House, it is a virtual certainty that JAG funds will be approved this year while other discretionary funds to the states face cuts or elimination. This could raise the relative value of the 10 percent JAG penalty.

The committee also included a separate $23 million pot to help states with Walsh Act implementation.

Continuation of the National Forum on Youth Violence Prevention: The committee included $3 million for this initiative, started by the Obama administration, to help cities engaged in plans to reduce gang or youth violence to share best practices and challenges with each other.

Consolidation of youth programs at OVW: The committee recommendation creates a $10 million “Consolidated Youth-Oriented Program” at the Office on Violence Against Women. This would combine four of OVW’s current youth projects, all centered around services for youth who have experienced or witnessed violence, and shave $2 million off of the fiscal 2011 appropriations total for them.

This article originally appeared in Youth Today.

House Approps May Gut Spending on Juvenile Justice and Delinquency Prevention Act

U.S. House of RepresentativesThe House subcommittee that oversees Justice Department funding produced an appropriations bill this week that would slash activities authorized by the Juvenile Justice and Delinquency Prevention Act in 2012.

The draft bill, marked up by the House Appropriations Committee’s Subcommittee on Commerce, Justice and State (CJS), would not fund demonstration grants, Juvenile Accountability Block Grants (JABG) or Title V Local Delinquency Prevention Grants. In 2010, the last year Congress actually passed an appropriations package, those three streams totaled $231 million.

The bill would also drop state formula grants - given to states on the condition that they adhere to basic standards in regard to the detainment of juveniles, and address racial disparities in the system - from $75 million in 2010 to $40 million.

The full appropriations committee will vote on the proposed funding levels for Justice on Wednesday, July 13, according to a memo published by the Coalition for Juvenile Justice on its website.

Many in the juvenile justice field have been unhappy with the way that the funding streams now on the chopping block were spent. Title V grants were intended to be given to state advisory groups to develop efforts to prevent juvenile crime; in recent years they were almost entirely allocated by Congress to enforcement of underage drinking laws, tribal areas and gang intervention.

Demonstration grants, which once funded coordinated efforts at research and pilot testing of juvenile justice strategies, became an earmark trough for congressmen.

President Barack Obama originally proposed in his 2012 budget to eliminate formula and JABG funding in favor of a Race to the Top-style incentive grant program, where conforming to basic standards was only a state’s ticket into the competition for big system improvement grants.

After a steady stream of criticism from advocates, the administration revised its budget proposal with most of the grants intact with only a small carve-out for its incentive grant concept.

The CJS subcommittee, which is chaired by Rep. Frank Wolf (R-Va.), does not propose to use savings from the formula grants or JABG for a new incentive program.

The subcommittee proposes $83 million for mentoring activities, which is $17 million less than 2010 appropriations.

Senate Passes Bill Stripping Confirmation Requirement for Juvenile Justice Positions

This article originally appeared on YouthToday.org.

The Senate passed by a 79-20 margin today the Presidential Appointment Efficiency and Streamlining Act of 2011, which would remove the Senate confirmation requirement for hundreds of executive branch positions, including two of the top federal jobs related to child welfare and juvenile justice.

S. 679 was never referred out of the Committee on Homeland Security and Governmental Affairs. The bill was introduced in late March by a bipartisan group of senators and blessed with the support of both Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.).

Chief among the youth-related positions affected by the bill are Administrator of the Office of Juvenile Justice and Delinquency Prevention (OJJDP), an agency within the Office of Justice Programs at the Department of Justice, and Commissioner of the Administration for Children, Youth and Families (ACYF), which is part of the Administration for Children and Families at the Department of Health and Human Services.

The ACYF job is currently held by Bryan Samuels. Samuels led Chicago’s child welfare system before becoming a top aide to Education Secretary Arne Duncan when he was CEO of Chicago Public Schools. ACYF manages the Children’s Bureau, which provides federal funding to states for foster care services and also measures the performance of state child welfare services.

The Obama administration has yet to nominate a person to serve as OJJDP administrator; the office is currently led by Acting Administrator Jeff Slowikowski. OJJDP funds state efforts to ensure federal juvenile justice standards are being met, state advisory groups, demonstration projects, and missing and exploited children’s programs.

“As a candidate for the job, you don't understand what it means to the field and the constituencies to have that direct oversight [of a] committee in the U.S. Congress, so the field can weigh in in a very powerful way regarding who gets that position,” said former OJJDP Administrator Shay Bilchik, who opposes the change. “Once it becomes simply a political appointment you lose that visibility and that transparency.”

Conservative think tank The Heritage Foundation also opposes the bill. Heritage’s David Addington, in an April opinion paper, wrote that “the sponsors of S. 679 have identified a valid problem, but proposed the wrong solution.”

“The Congress should not reduce the number of Senate-confirmed appointments as a means of dealing with its cumbersome and inefficient internal process for considering nominations,” Addington said. “Doing so gives away Senate influence over a number of significant appointments, does nothing to improve the Senate process, and still leaves nominees whose offices require nominations mired in the Senate process.”

The bill has the support of the Aspen Institute Commission to Reform the Appointments Process.

“S. 679 will make it possible for a new administration to fill very early in its first year about 70 communications and operations positions that new department heads need working with them to get off to a fast start and to communicate and work effectively,” the commission said in an opinion piece published this week in Youth Today and Roll Call.

Some other key youth-related positions that would no longer require a Senate confirmation vote:

Department of Education:

Assistant Secretary for Legislation and Congressional Affairs, Department of Education
Commissioner – Rehabilitation Services Administration
Commissioner – Education Statistics
Members (15), National Board of Education Sciences

Department of Health and Human Services:

Commissioner, Administration for Native Americans

Corporation for National and Community Service

Managing Directors (two positions)

Department of Justice

Director, Bureau of Justice Statistics
Director, Bureau of Justice Assistance
Director, National Institute of Justice
Deputy Director, National Drug Control Policy
Deputy Director, Demand Reduction, National Drug Control Policy
Director, Office for Victims of Crime

 

Supreme Court Gives Juveniles Protection in Police Interrogations

[This article was reprinted with permission from YouthToday]

The U.S. Supreme Court ruled today in a 5-4 decision that said a police officer must take a child’s age into consideration when determining whether to issue a Miranda warning to a juvenile suspect.

The case, J.D.B.v. North Carolina is the latest in a string of cases in which the high court has applied protection to certain groups of juveniles. The court banned the juvenile death penalty in the 2005 Roper v. Simmons case, and last year ruled in Graham v. Florida that life without parole sentences were unconstitutional for juveniles convicted of any crime other than homicide.

“This represents the court’s settled commitment to its view that kids are different,” said Marsha Levick, deputy director and co-founder of the Philadelphia-based Juvenile Law Center. “It’s just a further shoring up of that direction they’ve been moving in for last several years.”

Justice Sonia Sotomayor, writing for the majority, said, “So long as the child’s age was known to the officer, or would have been objectively apparent to a reasonable officer,” law enforcement and the courts must factor age into a decision to give a Miranda warning to a juvenile suspect.

“Neither officers nor courts can reasonably evaluate the effect of objective circumstances that, by their nature, are specific to children without accounting for the age of the child subjected to those circumstances,” wrote Sotomayor, joined in her opinion by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

“This does not mean that a child’s age will be a determinative, or even a significant, factor in every case, but it is a reality that courts cannot ignore.”

Dissenters in the case – Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas – expressed fear that the decision would be the first of many to obscure Miranda guidelines past their usefulness.

The justices heard oral arguments in March in the case, which involved a 13-year-old boy who was questioned by police at his school in connection with two home burglaries. The teen was questioned in a closed (but not locked) room, in the presence of a police investigator, a police officer who was assigned to the school and an assistant principal.

J.D.B. initially denied being involved in the break-ins, and was advised by his assistant principal to “do the right thing.” J.D.B. was then told by the investigator that the case would be going to court, and that he might be detained before trial, at which point the boy confessed to the crimes.

The investigator then told J.D.B. that he did not have to answer further questions and was free to leave. The teen continued to answer questions until the end of the school day, and then went home.

It is the first time since the Miranda v. Arizona ruling established the current custody analysis in 1966 that the high court has mandated the consideration of a factor specific to the individual in question. The Miranda process historically only requires officers (and courts upon review) to consider specific circumstances such as where questioning occurred, how long it lasted or whether any physical restrain was used to keep a suspect in a certain place.

The majority cited a number of previous cases to bolster its argument that age is a factor worthy of distinguishing from other potential considerations about an individual.

“A child’s age differs from other personal characteristics that, even when known to police, have no objectively discernible relationship to a reasonable person’s understanding of his freedom of action,” Sotomayor wrote.

Sotomayor’s opinion cited Haley v. Ohio’s finding that in the specific context of police interrogation, events that “would leave a man cold and unimpressed can overawe and overwhelm a” teen, and quotes from the Roper v. Simmons case that ended the juvenile death penalty: juveniles “are more vulnerable or susceptible to . . . outside pressures” than adults.

Alito’s dissent

Writing for the dissenting justices, Justice Samuel Alito voiced concern that the decision in J.D.B.could lead to a “fundamental transformation of the Miranda custody test – from a clear, easily applied prophylactic rule into a highly fact-intensive standard resembling the voluntariness test that the Miranda Court found to be unsatisfactory.

“I have little doubt that today’s decision will soon be cited by defendants – and perhaps by prosecutors as well – for the proposition that all manner of other individual characteristics should be treated like age and taken into account in the Miranda custody calculus,” Alito wrote. “Indeed, there are already lower court decisions that take this approach.”

More specific to the case at hand, Alito argued that juveniles are already protected in school by Miranda’s requirement that setting be a factor.

“The Miranda custody rule has always taken into account the setting in which questioning occurs, and accounting for the school setting in such cases will address many of these problems,” he wrote.

And juveniles are protected in general, Alito said, by the ability of judges to assess the voluntariness of their communication with police under the Fifth and 14th Amendments.

“If Miranda’s rigid, one-size-fits-all standards fail to account for the unique needs of juveniles, the response should be to rigorously apply the constitutional rule against coercion to ensure that the rights of minors are protected,” Alito wrote. “There is no need to run Miranda off the rails.”

During the oral arguments in March, Alito challenged J.D.B.’s attorney Barbara Blackman on whether or where a bright line should be drawn as to what age range must be specially considered by law enforcement. Alito expressed wariness over using the case of a 13-year-old who may not have understood that he could walk away from questioning to mandate protection for older teens.

“Sympathetic cases can make bad law,” Alito said during the oral arguments. “So take the same set of facts and let's hypothesize that this is a 15-year-old. Would the 15-year-old appreciate that he could go? Or make him a street-wise 17-year-old.”

He returned to this line of discussion in his dissent.

“Most juveniles who are subjected to police interrogation are teenagers nearing the age of majority. These defendants’ reactions to police pressure are unlikely to be much different from the reaction of a typical 18-year-old in similar circumstances. A one-size-fits-all Miranda custody rule thus provides a roughly reasonable fit for these defendants.”

The majority was not persuaded by that argument.

“Though the State and the dissent worry about gradations among children of different ages, that concern cannot justify ignoring a child’s age altogether,” Sotomayor said. “Not once have we excluded from the custody analysis a circumstance that we determined was relevant and objective, simply to make the fault line between custodial and noncustodial ‘brighter.’ "