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Advocates Focus on Conference Committee After JJDPA Reauthorization Passes Senate

WASHINGTON — Juvenile justice reform advocates are turning their attention to a House and Senate conference committee after a key bill, a decade-plus in the making, passed yet another legislative hurdle.

The Senate passed a reauthorization of the Juvenile Justice Delinquency and Prevention Act (S 860) on Tuesday by a voice vote. The act hadn't been reauthorized since 2002 and was badly in need of an update, juvenile justice advocates have long argued.

The bill now heads to a conference committee to be reconciled with its House version, HR 1809. The main difference is that the House version completely phases out 1984 provisions that allow minors to be locked up for status offenses — running away from home, skipping school, etc. The Senate kept language that would allow a minor to be locked up if his or her status offense violated a valid court order.  Sen. Tom Cotton, R-Arkansas, a longtime obstacle to Senate passage, had insisted on the court order provisions.

Still, with nearly 60,000 young people in juvenile facilities, many reform advocates seemed grateful just to get this far and were cautiously optimistic about final passage. "We are glad to see Congress coming together to take this important action," said Naomi Smoot, executive director of the Coalition for Juvenile Justice, in a statement. "It is our hope that the final legislation will include a phase-out of the valid court order exception, and bring an end to the incarceration of children who are in need of services, not jail time."

The Senate bill's main sponsors were Chuck Grassley, R-Iowa, and Sheldon Whitehouse, D-Rhode Island. Both hailed the legislation as "a significant step" toward reform.

"Youngsters who encounter the juvenile justice system should be treated safely, fairly and in a manner that encourages greater respect for the law," Grassley said in a statement. "The federal juvenile justice program helps states achieve these fundamental goals, but the program hasn’t been updated in more than a decade."

In his own statement, Whitehouse said the bill "will help kids in the system to turn things around, return home, and stay out of trouble."

"It helps to stop practices that do more harm than good, like confining young people with adults or putting them in solitary confinement," Whitehouse added.

Among other things, the Senate bill:

  • Requires states that receive federal grants to commit to "core principles," including segregation of young detainees from adults and the identification and reduction of racial disparities in juvenile detention;
  • "Encourages" authorities to be more vigilant at screening children who might have been sexually trafficked or who suffer from mental illness or drug or alcohol abuse; and
  • Encourages grantees to phase out the shackling of pregnant girls, support continuing education for detainees and "promote greater separation of juvenile offenders" from adult detainees.

The legislation would set aside $159 million in federal funds for fiscal 2017, followed by a 1.5 percent increase per year through 2021.

Senate passage has stalled for years, mostly over concerns about the court order exception to juvenile lockup. Cotton has long stood in the way of reauthorizations over the issue. This year, when he convinced Grassley and Whitehouse not to remove the court order exception, Kentucky Republican Sen. Rand Paul put a hold on the bill. In the end, Rand agreed to drop his objections and the legislation passed.

Some juvenile justice advocates are hopeful that the court order language will be removed in conference. The House bill would require states to phase out the exception in three years.

As it stands, half the states have either banned the practice or not made use of it. Nonetheless, more than 7,000 young people were locked up for status offenses against a valid court order in a year.

Cotton has increasingly become isolated in his opposition to waiving the court order exception. In July, the National Council of Juvenile and Family Court Judges, which successfully lobbied for the exception in the 1980s, reversed itself, saying that it now "supports the development of consultation resources for those courts that have been using the valid court order exception to guide them in reforming their policies, programs, and practices regarding youth engaged in status offense behaviors."

Sen. Cotton Blocks Move to Pass JJDPA Again

WASHINGTON — A long-shot attempt to pass key juvenile justice legislation this year failed Wednesday when a lone senator once more objected to the bill.

Senate leaders tried to move a bipartisan reauthorization of the Juvenile Justice Delinquency and Prevention Act (HR 5963) using a fast-track procedure that requires the support of all senators.

For more information about evidence-based practices, go to JJIE Resource Hub | Evidence-Based Practices

But Sen. Tom Cotton, R-Arkansas, who has opposed the reauthorization throughout the year, would not consent because of a provision that would limit judges’ authority to lock up some young offenders.

The JJDPA sets the core safety standards for juveniles that states must follow in order to qualify for federal grants. It also aims to prevent delinquency and curb racial and ethnic disparities in juvenile justice systems.

One of those core protections prohibits the detention of juveniles for so-called status offenses, behaviors such as truancy or running away that are only considered crimes because of a youth’s age. The reauthorization would phase out the valid court order exception that does allow youth to be detained for status offenses if they violate a valid court order issued by a judge.

If “a juvenile flouts the authority of the judge, that judge needs some mechanism to enforce his orders. That is no longer a status offense, that is contempt of court,” Cotton said.

The bill that was under consideration would allow states to apply for hardship extensions from the phaseout of the valid court order exception. The House passed its version of the long-awaited reauthorization in October.

The JJDPA has not been reauthorized since 2002. Since then, a growing body of research has pointed toward new evidence-based policies that would benefit adolescents and should be included in the law, supporters say.

“What we heard from juvenile justice practitioners around the country is that a lot of the policies that had been in place for dealing with juvenile offenders were stale and ineffective, that there were better ways to do business than were currently being supported,” said Sen. Sheldon Whitehouse, D-Rhode Island, who has championed the reauthorization in the Senate along with Judiciary Chairman Charles E. Grassley, R-Iowa.

The Act4JJ Coalition, which represents more than 180 national youth development and juvenile justice organizations, said it was “profoundly disappointed that one senator can stop the passage of this critically important bill.”

The coalition’s co-chair, Marcy Mistrett, also CEO of the Campaign for Youth Justice, said in a release, “More than half the counties in Arkansas don’t even use the valid court order exception anymore; only five are responsible for more than half the detention of status offenders on a violation of a court order. Five counties should not drive federal policy for the entire country.”

The action on the Senate floor was a repeat of an earlier attempt in February to pass the Senate’s version of the JJDPA reauthorization. Since then, advocates and lawmakers have urged Cotton to change his mind.

Cotton said he would consider tweaks to the valid court order phase-out, such as a minimum age for detaining status offenders, but those ideas are unlikely to find favor with supporters of reform.

This story has been updated.

Advocates Hope for JJDPA Action Post-Election

 

U.S. Capitol Building

WASHINGTON — Advocates are hopeful a reauthorization of the key federal legislation that protects juveniles in state and local custody will be on the agenda when lawmakers return after Tuesday’s election.

A lame duck session is scheduled to begin next week, and lawmakers will have to contend with must-pass items, such as a budget deal to fund the federal government.

But supporters of dozens of other issues also will be lobbying hard for their priorities to make the cut before the legislative session expires. The list includes an update to the Juvenile Justice Delinquency and Prevention Act, a law that sets standards for the treatment of juveniles that states follow to qualify for federal funding.

The House passed a reauthorization bill, the Supporting Youth Opportunity and Preventing Delinquency Act (HR 5963), by a vote of 382-29 in September. Now, supporters will be watching the Senate closely to see if the bill can reach the floor there.

“There should be no more excuses. This needs to get done,” said Marcy Mistrett, co-chair of the Act4JJ Coalition, which represents more than 180 national youth development and juvenile justice organizations, in an emailed statement.

Mistrett pointed to the strong, bipartisan House vote, the backing of a wide variety of stakeholders, the evidence-based policies included in the bill and strong support in the Senate as evidence for why the bill should move forward.

“There is no reason this law can't pass in the lame duck. Everything is aligned,” said Mistrett, who also is CEO of the Campaign for Youth Justice.

A Senate version of the reauthorization (S 1169) stalled early in 2016 after Sen. Tom Cotton, R-Arkansas, objected to a provision that would eliminate judges’ ability to send juveniles to lockup for status offenses.

The JJDPA prohibits the use of lockup for status offenses — actions such as truancy or running away from home that are only considered offenses because of the juvenile’s age — unless a judge issues a valid court order.

A spokeswoman for Cotton said he is concerned that the reauthorization proposals would eliminate judges’ ability to order secure confinement “in instances where a status offender openly flouts the judge’s order for him to enter rehabilitation, counseling, or take part in other treatment and services.”

“In such circumstances it is prudent to allow states to determine if their judges — often in consultation with the parents and attorneys involved — should have the discretion to order secure confinement as a last-resort option to ensure that the juvenile receives the help he needs,” she said.

Though the House and Senate bills differ slightly, senators championing the bill have indicated they will support the lower chamber’s version.

However, because of Cotton’s objection the bill cannot pass by a fast-track procedure that requires the unanimous consent of all senators. Instead it would have to move to the floor as a stand-alone bill or be attached to another piece of legislation.

Details about if and how the bill would move are not expected to become clear until the election results are in.

The JJDPA has not been updated in 14 years. During that time, best practices in the juvenile justice field have shifted significantly — and need to be incorporated into the law, supporters say.

Among its provisions, the House JJDPA reauthorization would update core protections in the law, give states new tools to prevent delinquency and gang involvement, and provide guidance on curbing racial and ethnic disparities in the system.

House Passes Reauthorization of JJDPA; Focus Returns to Senate

bac5a9ce-7a70-49bb-9eef-adc8ae3c4873WASHINGTON — The House voted today to update the key federal law that aims to prevent delinquency and protect juveniles in state and local custody.

The House passed the Supporting Youth Opportunity and Preventing Delinquency Act (HR 5963) by 382-29, just two weeks after the long-sought bipartisan bill was introduced.

The legislation is a reauthorization of the Juvenile Justice and Delinquency Prevention Act, a law that sets standards for the treatment of juveniles that states follow to qualify for federal funding.

The bill would update core protections in the law, give states new tools to prevent delinquency and gang involvement, and provide guidance on curbing racial and ethnic disparities in the system.

This “is about more than improving the juvenile justice system. It’s about helping vulnerable kids realize they have an opportunity to succeed in life and giving them the support they need to seize that opportunity,” said Rep. Carlos Curbelo, R-Florida, a lead sponsor of the bill.

“This act … is a major step in the right direction towards reforming our juvenile justice system,” said Rep. Tony Cárdenas, D-California. “I am particularly grateful that the bill includes my community-based gang intervention bill, to help gang-involved youth.”

The swift passage of the House legislation means all eyes will be back on the Senate, where lawmakers have limited days left on the legislative calendar to act on the House bill or find a way forward for a Senate version of the bill (S 1169), which is very similar to the House version.

A spokeswoman for Senate Judiciary Chairman Chuck Grassley, R-Iowa, a lead sponsor in the Senate, said he is seeking input from lawmakers on the differences between the two pieces of legislation. Since the bills are so similar, Grassley is optimistic the House bill can pass in the Senate, she said.

The Senate reauthorization has wide bipartisan support but stalled earlier this year when Sen. Tom Cotton, R-Arkansas, objected to a provision that would end what’s known as the valid court order exception for status offenders.

The JJDPA prohibits the detention of minors for status offenses, behaviors such as truancy or running away that are only considered offenses when committed by minors, unless a judge issues a court order.

The House bill has won the support of juvenile justice reform advocates who have long sought a reauthorization of the bill, which hasn’t been updated since 2002.

“Premised on research-based understandings of juvenile justice and delinquency prevention, H.R. 5963 reaffirms a national commitment to the rehabilitative purpose of the juvenile justice system; one that supports developmentally appropriate practices that treat as many youth as possible in their communities,” said the ACT4JJ Campaign, a coalition of youth advocates, in a letter voicing the organization’s support for the bill.

The advocates did draw attention to one of the more significant policy differences between the House and the Senate bills: the way each end the valid court exception. Both would phase out the exception over three years, but the House bill allows states to apply for one-year hardship extensions, which would be approved or denied by the federal Office of Juvenile Justice and Delinquency Prevention.

“Though we prefer the Senate’s approach to the phase out, which does not include an annual hardship exception, the House bill is an improvement over current law that sends a clear message to states and will help keep greater numbers of youth from being unnecessarily detained,” the letter said.

The bill also has the support of Fight Crime: Invest in Kids, a national law enforcement organization.

“This bipartisan reauthorization of the Juvenile Justice and Delinquency Prevention Act (JJDPA) supports evidence-based programs that can prevent youth from engaging in criminal activity or rehabilitate youth who are starting to offend. These proven programs provide a critical support for law enforcement, as well as an investment in those young people,” the group said in a letter to lawmakers.

House Lawmakers Introduce JJDPA Reauthorization

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WASHINGTON — A bipartisan group of House lawmakers introduced long-awaited legislation today that would strengthen the key federal law protecting youth in the juvenile justice system.

The Supporting Youth Opportunity and Preventing Delinquency Act (HR 5963) aims to help local and state officials better address the needs of youth by preventing their involvement with the juvenile system, protecting them in custody and helping them transition back into the community.

The provisions are part of an overall proposed reauthorization of the Juvenile Justice and Delinquency and Prevention Act. The law sets the core requirements for the treatment of juveniles that states must follow to receive federal funding.

“At the federal level, we must continue to incentivize a focus on evidence-based prevention and intervention initiatives which reduce delinquency and save money. Making sure we get juveniles in the system or at risk of delinquency off the wrong track and back in school on the way to college or a career is one of the most common sense, cost-effective actions we can take to improve our communities,” said Rep. Bobby Scott, D-Virginia, ranking member of the House Education and Workforce Committee and a lead sponsor of the bill, in a news release.

Advocates welcomed the bill and what it could mean for juvenile justice reform on Capitol Hill. While Senate lawmakers introduced bipartisan JJDPA reauthorization legislation last year, the House had yet to do the same.

“It’s a solid, strong bill. Primarily we’re happy that the House has turned its attention to the JJDPA and that they’ve done so in a bipartisan way,” said Marie Williams, executive director of the Coalition for Juvenile Justice.

And the bill could boost a bipartisan Senate JJDPA reauthorization bill (S 1169) that stalled earlier this year.

Scott introduced the bill with lead co-sponsor Rep. Carlos Curbelo, R-Florida. Other original sponsors of the bill are Education and Workforce Chairman John Kline, R-Minnesota, and Reps. Susan Davis, D-California, Earl L. “Buddy” Carter, R-Georgia, and Frederica Wilson, D-Florida.

“Many children are born into circumstances out of their control and believe the only path forward is one of crime or delinquency,” Curbelo said in a news release. “The purpose of this legislation is to help those children understand there is a better path forward and success is within their reach.”

The committee plans to consider the legislation on Wednesday.

The JJDPA has not been updated in nearly 15 years, a time of significant changes in the juvenile justice field that’s yielded new best practices that reformers say need to be incorporated into the law.

The bill includes provisions that would:

  • eliminate a loophole that allows youth to be detained for status offenses, behaviors such as running away or truancy that are only considered an offense because of a youth’s age;
  • strengthen requirements that juveniles be kept separate from adults in facilities; and
  • provide greater flexibility in prevention grant programs.

“I think this is a strong signal to the Senate that the House is also prioritizing it,” said Marcy Mistrett, chief executive officer of the Campaign for Youth Justice.

Even if a JJDPA reauthorization is not finished by the end of the year, the attention is important, the bill’s supporters said.

“The momentum around it in this Congress would certainly not hurt,” Williams said.

One significant difference between the House and Senate bills is the structure of the phase-out of what’s called the “valid court order” exemption for status offenders. While JJDPA prohibits the detention of status offenders, they may be detained if a judge issues a valid court order.

Under the Senate bill, a three-year phase-out would be followed by one year when states could ask for a hardship exemption. The House bill would allow states to ask for the exemption beyond the one-year mark.

“We would have hoped the House version would recognize — especially given the emphasis on evidence in the bill — that confining status offenders is not evidence-based,” Williams said.

The Senate bill had stalled because Sen. Tom Cotton, R-Arkansas, objected to ending the loophole, meaning the bill could not pass under a fast-track procedure.

Cotton Out of Step on Justice Reform, Out of Line in Blocking JJDPA

Naomi Head ShotWith less than 100 days remaining on the 114th Congress’ legislative calendar, time is running out for Congress to come together to protect our children and our communities.

Passage of S 1169, a bill to reauthorize the Juvenile Justice and Delinquency Prevention Act (JJDPA) should be a no-brainer. The legislation includes common-sense updates like stopping the shackling of incarcerated girls while they are giving birth, and eliminating exceptions that currently permit our children to be locked up for behaviors like skipping school.

The bill, which was first passed more than 40 years ago with broad support from Republicans, Democrats and an array of child-serving and community organizations, is up for reauthorization now, and would incorporate a decade’s worth of new research into the existing law.

The broad support the JJDPA had in the 1970s still exists today. Nearly 5,000 law enforcement officers from across the country have signed on in support, as have the National Council of Juvenile and Family Court Judges, the National District Attorneys Association, 44 faith-based organizations and more than 100 national and state-based child advocacy organizations.

In February, the legislation was sent to the Senate for consideration. The bill’s sponsors, Sen. Charles E. Grassley, R-Iowa, and Sen. Sheldon Whitehouse, D-Rhode Island, were confident that it would prove uncontroversial. The pair submitted the bill for approval through a process known as unanimous consent.

Much as it sounds, unanimous consent requires that all members of the Senate agree to a legislative proposal in order for it to earn approval. Ninety-nine senators supported the bill’s passage. One senator alone objected to S 1169 — Sen. Tom Cotton, R-Arkansas, who has also opposed the Senate’s criminal justice reform proposal, S 2123.

In particular, Sen. Cotton said he disliked S 1169’s phaseout of the so-called valid court order (VCO) exception. The VCO exception was added to the JJDPA in the 1980s. The measure permits judges to incarcerate children in need of services for behaviors such as missing curfew, running away from home and skipping school, if the behavior violates a previous order from the court. S 1169 requires states to stop using the VCO exception within three years of the law’s passage.

This morning, Cotton spoke before a group at the Hudson Institute in Washington, District of Columbia, about how reducing incarceration can, according to him, decrease community safety and increase recidivism. According to Sen. Cotton, “if anything we have an underincarceration problem.”

[Related: Advocates Still Hopeful for Action on Stalled JJDPA Reauthorization]

This assertion is patently false and runs contrary to voluminous research that has led policymakers on both sides of the aisle to recognize the social and financial benefits of community-based alternatives for low-level offenses, and to push for reform of the adult criminal justice system, reducing our nation’s reliance on incarceration. The reality is that incarceration is a costly undertaking, both socially and financially.

In the juvenile justice system, the decision to incarcerate can carry even more far-reaching consequences. Placing a child in a juvenile prison increases their risk for physical and sexual assault.

Sen. Cotton’s own state has had a particularly damning track record. Half the children in Arkansas’ juvenile prisons are there for noncriminal behaviors. A 2014 report from the Arkansas Disability Rights Center found that children were not segregated by offense, were subjected to assault by staff and were in some cases held far longer than their offense merited.

In a report from the Bureau of Justice Statistics, the most recent year for which data is available, Arkansas’ Juvenile Assessment and Treatment Center was among the top 10 facilities with the highest rates of sexual victimization of youth.

Incarcerating children has also been shown to increase the likelihood that they will come back into contact with the juvenile justice system, eventually wind up in the deep end of the system and later are more likely come into contact with the criminal justice system as adults. These risks come with an average price tag of more than $200 per day per child.

Facts such as these have led many conservatives to see that incarceration’s dangers — particularly for the young — far outweigh its once-perceived benefits. “[T]here's been a mountain of research over the last few decades that has shown that different alternatives to prison work, whether it's problem-solving courts, electronic monitoring, treatment diversions for the mentally ill, we've had huge advances in risk assessment instruments that can better match offenders with the right programs,” conservative political analyst Marc Levin told NPR in a 2012 interview. Levin is also policy director at Right on Crime.

Arkansas juvenile justice professionals agree. Steve Nawojczyk, who was the director of youth services for the city of North Little Rock for seven years, told news reporters in an interview earlier this month that “Putting kids in jail is not the solution. Some kids need to go to jail, there are some very bad kids. We need to, in Arkansas, do a better job of assessment on the front end; we need to be sure that children, when they are in jail, that they get the proper mental health services.”

Services such as these, that juvenile justice professionals in Arkansas know to be key to really helping our children, are included in S 1169. The bill promotes trauma-informed care such as mental health and drug treatment programs, and provides for mental health screenings for children who encounter the juvenile justice system. Measures that, unlike incarceration, are supported by research. The time is now to listen to the research and reauthorize the JJDPA.

Naomi Smoot is senior policy associate at the Coalition for Juvenile Justice.

More related articles:

Arkansas Senator Holding Up JJDPA May Be Listening to Wrong Counties

An Open Letter to U.S. Senator Tom Cotton

Lawmakers Hope to Bring JJDPA to Senate Floor Again

Advocates Still Hopeful for Action on Stalled JJDPA Reauthorization

cotton
Sen. Tom Cotton

WASHINGTON — Juvenile justice reformers still hope to see action this year on key legislation that stalled in the Senate several months ago.

Advocates continue to urge Sen. Tom Cotton, R-Arkansas, to lift his hold on a bill, S 1169, that would reauthorize the Juvenile Justice Delinquency and Prevention Act, the primary source of protections for youth in custody.

Cotton objects to a provision that would phase out judges’ ability to send juveniles to lockup for status offenses but said he would seek a compromise that allows the bill to move forward.

We are still feeling hopeful there will be a resolution,” said Naomi Smoot, senior policy associate at the Coalition For Juvenile Justice.

The current version of the JJDPA prohibits the detention of juveniles for status offenses, behaviors such as truancy or running away from home, except in one case — if a juvenile violates a valid court order issued by a judge. The reauthorization would phase out the exception, meaning states would have to comply or risk losing federal grants.

Senate Judiciary Chairman Charles E. Grassley, R-Iowa, who has championed the bill, continues to work with Cotton to find a resolution, said a spokeswoman for Grassley.

The timeline for action is tight because Congress will adjourn for much of the year beginning in July.

If the bill does not pass via a fast-track procedure known as unanimous consent, then it could have a full floor vote if Majority Leader Mitch McConnell, R-Kentucky, places it on the schedule.  Consideration on the floor opens the door to amendments and a potentially long slog as senators debate the measure.

“We want to exhaust every possibility before moving it to the floor,” said Marcy Mistrett, CEO of the Campaign for Youth Justice.

Smoot and Mistrett agreed there’s much to be encouraged about, including strong support for passing the reauthorization from groups across the country.

“We’ve been really pleased with the great outpouring from folks across the country … It’s been wonderful to see the commitment our community has to this,” Smoot said.

Mistrett said she’s also encouraged by a spending bill passed by the Senate Appropriations Committee last week that increases funding for some juvenile justice programs.

The message is getting through, she said, pointing to language in a committee report that called sections of the JJDPA “the backbone of programs assisting State and local agencies to prevent juvenile delinquency and ensure that youth who are in contact with the juvenile justice system are treated fairly.”

“In this really conservative, lean time, if appropriators are saying this is important, it’s just ludicrous we can’t get Congress to pass it,” she said.

House lawmakers have yet to introduce companion legislation to S 1169 but are expected to do so.

Smoot said supporters hope both the House and Senate bills can move before the summer recess begins.

“It definitely is a tight calendar, but we think that it can be done,” she said.

Arkansas Senator Holding Up JJDPA May Be Listening to Wrong Counties

Judge Steven TeskeSince writing my open letter to Sen. Tom Cotton regarding his opposition to removing the valid court order (VCO) exception of the Juvenile Justice Delinquency Prevention Act, many have weighed in, trying to sway the senator to change his position. Many have thrown every ounce of research showing that detention of youth for status offenses is harmful, not only to the youth, but to public safety.

Despite the evidence being dumped on the Republican senator from Arkansas, he refuses to budge. This is confounding to all legal experts. For example, take the excellent column by Yasmin Vafa, who expressed her frustration in the comment, “It is difficult to understand why Sen. Cotton would be in favor of a policy that those of us who work with children and families every day, and whose role it is to protect the public, ensure justice for victims and rehabilitate children, so vehemently oppose.”

As I write this, I am sitting at the Coalition for Juvenile Justice annual conference listening to people ask, “What are we to do with Senator Cotton?” The answer doesn’t change much — continue hammering him with the evidence. After all, he is an attorney who graduated from Harvard Law School and has an appreciation for “the evidence.”

True, but the senator isn’t practicing law. He is not litigating a case and required by a trial judge, like me, to abide by the rules of evidence.

The senator is practicing politics because that is what politicians do.

Maybe we should cut the senator some slack because he is likely not calling the shots. We make the assumption that he is calling the shots because he votes on the Senate floor, but politicians don’t always vote in support of the evidence, they vote in support of their constituents’ interests. My advice to the legal experts trying to persuade the senator is to shift their strategy to those constituents who have the senator’s ear.

This scenario reminds me of Napoleon Bonaparte’s observation that “In politics stupidity is not a handicap.”

Legal experts remain stupefied by the senator’s refusal to acknowledge the overwhelming evidence of the destructive impact of incarceration on youth and on public safety. A few of these experts have confided in me their postulation that the senator lacks the acumen to discern the status offender evidence.

I am not convinced of this. On the contrary I am convinced the senator “gets” the research and may, in the privacy of his cerebral residence, agree with the legal experts. The senator’s credentials is evidence sufficient for me that he can discern the most complex of evidence, and his intellect impresses on me that he knows when to ignore the evidence and risk the appearance of stupidity to satiate the interests of his constituents.

After all, isn’t it the goal of every politician to enhance their odds of re-election, which sometimes forces a politician to take positions against the best practice, even if it creates more harm? I wouldn’t be surprised if the senator wished this constituent situation wasn’t plaguing him. It’s quite possible that the senator wants to vote to remove the VCO exception, no matter what he has said or will continue to say.

The legal experts should be asking who these constituents whispering in the senator’s ear are. I also would want to know if their influence is by majority or by position. So, let’s take a look at the who and what.

My friends in Arkansas have advised me that some judges have reached out to the senator expressing their support of the senator’s position against removal of the VCO. I have read a letter written by an Arkansas juvenile court judge to the senator opposing the removal of the VCO. It describes a circumstance in court involving a child accused of molestation. The parties agreed that the circumstances warranted a negotiated plea to a minor offense. The judge accepted, and the charge was reduced to a status offense. The judge proffered this example in support of the VCO exception to show the need for detention should the child violate the order because the original act was a delinquent offense.

[Related: An Open Letter to U.S. Senator Tom Cotton]

Although I appreciate the consideration provided to this child, this has to be the poorest example in support of the VCO exception I have ever heard. Georgia, like many other states, also allows a judge to treat a delinquent act as a status act if the judge concludes that the delinquent act is incidental to status conduct such as unruly and truant behaviors, thus concluding the child is not delinquent and subject to detention. In other words, we separate the trees from the forest, and quite frankly, so does the Arkansas juvenile code, except that in Arkansas youth with status offenses can be incarcerated.

This example is like painting black stripes on a white horse and calling it a zebra. The reasons for eliminating the VCO exception strictly applies to true status offenders, not kids who have committed serious delinquent acts and by a stroke of a judge’s pen are magically called a status offender. If a judge wants to retain the discretion to detain, then he or she should reduce it to a lesser included offense or other offense similar in nature to the original act that is a misdemeanor.

But I can't believe the senator, with his Harvard Law School education, is falling for this straw man argument that would be obliterated with the wind.

I keep coming back to the practice of politics, that unfortunately stupidity is not a handicap — diluting effective legislation by compromising away its heart and soul to accommodate constituents back home. What stupid things politicians must do to satisfy their constituents.

At first blush, it’s no surprise the senator is opposing the VCO exception because his state is one of the top offenders of incarcerating youth for status offenses.

But has the senator looked at his state’s data on which counties incarcerate the most status kids? Of the 75 counties in Arkansas, 27 do not incarcerate status kids despite the allowance to do so. The remaining 48 counties together incarcerate approximately 1,000 status kids (the juvenile court judges dispute this number and claim it’s about 500).

Regardless, the top five offending counties together incarcerate 468 status youth, which represents nearly half of all incarcerated status youth. This means the remaining offending counties on average incarcerate only 12 status youth annually.

The numbers clearly show that most judges in Arkansas work diligently not to incarcerate status youth, and who knows, if the truth be told, they probably would prefer being told not to incarcerate these youth. I know because I see these dynamics play out all across the country among judges, including in my own state.

If the practice of law demands adherence to the rules of evidence, it would follow that the practice of politics demands adherence to the rule of constituency representation. So who is the constituency the senator is representing? The band of five who incarcerate most of the status kids, or the 27 who do not and the remaining 43 who on average incarcerate only 12 annually?

I suggest the tail is wagging the dog in Arkansas.

Before leaving the CJJ conference, I spoke to my longtime friend Jerry Walsh, who is the chair of the Arkansas State Advisory Group, made up of members appointed by the governor. The senator would do well to speak to him about the realities in Arkansas, not the band of five.

When youth who have committed no crime are incarcerated and suffer abuse inside Arkansas detention centers, like the 10-year-old sexually assaulted by an adult sex offender at Miller County Juvenile Detention Center, something drastic must be done.

I choose the lesser of two evils — risking a child doing harm to self over introducing a child to institutional abuses and the delinquency training that resides inside. I prefer not to create more delinquents to victimize others.
Public safety must come first over our proclivity to protect a runaway or punish a truant because neither victimizes others.

More related articles:

Lawmakers Hope to Bring JJDPA to Senate Floor Again

House Committee Hears Strong Calls for JJDPA Reauthorization

 

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.

Lawmakers Hope to Bring JJDPA to Senate Floor Again

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Sen. Tom Cotton and Sen. Charles E. Grassley

WASHINGTON — Key legislation that would strengthen protections for youth in the juvenile justice system still has a chance in the Senate.

A bipartisan bill (S 1169) to reauthorize the Juvenile Justice and Delinquency Protection Act stalled on the Senate floor last week when Sen. Tom Cotton, R-Arkansas, objected to a provision that would limit judges’ ability to send juveniles to lockup for status offenses.

The bill was considered under a fast-track procedure that clears the way for passage unless a lawmaker objects.

Sen. Charles E. Grassley, R-Iowa, chairman of the Senate Judiciary Committee, now is seeking a way to address Cotton’s concerns and move the bill to the floor once more.

“Chairman Grassley is going to continue to work with Senator Cotton to see if the issue can be resolved in hopes of passing something soon,” said Beth Levine, a spokeswoman for Grassley, in an email.

[Related: House Committee Hears Strong Calls for JJDPA Reauthorization]

The reauthorization is a top priority for juvenile justice advocates, who are urging swift action on the bill. In a year with a tight legislative calendar, they want to see the Senate pass the bill sooner rather than later so that action can move to the House, where lawmakers have yet to consider a similar measure.

JJDPA sets federal standards and provides funding for juvenile justice programs in state and local jurisdictions. The update reflects a growing body of best practices for how youth in the juvenile justice system should be treated, say the law’s supporters.

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The JJDPA prohibits the detention of juveniles for status offenses, behaviors such as truancy or running away from home, except in one case — if a juvenile violates a valid court order issued by a judge. The reauthorization would phase out the exception, meaning states would have to comply or risk losing federal grants.

Cotton objected to a prohibition on the practice.

“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,” he said on the Senate floor.

Most of the instances when juveniles are detained for status offenses occur in just a few states. In fiscal year 2014, when 7,466 juveniles were detained under the exception, 2,705 were held in Washington state, 1,048 in Kentucky and 747 in Arkansas, according to federal data. Many states did not use the exception at all.

Naomi Smoot, senior policy associate at the Coalition For Juvenile Justice, said detaining status offenders is a misguided practice that can worsen a juvenile’s situation rather than improving it.

Juveniles may face dangerous situations in detention, including the risk of physical and sexual violence, she said. Detention also doesn’t get at the root cause of status offenses, such as if a child is not attending school because of bullying or an undiagnosed special education need, she said.

“It’s a costly practice and it doesn’t have the benefits that people think it does for the kids behind bars,” she said.

More related articles: 

Giving Inmates with Life Sentences 2nd Chance Is Right Thing to Do

Georgia’s Gov. Nathan Deal: ‘The Ultimate Criminal Justice Reform’