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State Advisors to Federal Juvenile Justice Office Briefed on Reforms

Federal Advisory Committee on Juvenile Justice meeting in Washington, D.C.

WASHINGTON, D.C. – Thirteen advocates and professionals from around the country who serve as advisors to the federal office for juvenile justice met for two days last week in Washington, D.C., to share information on reforms and funding at the state and federal levels.

The Federal Advisory Committee on Juvenile Justice, which normally meets online every few months, gathered face-to-face for the first time in a year. Its last online meeting occurred Aug. 10. 

Some of the reforms the committee discussed lie within the federal Office of Juvenile Justice and Delinquency Prevention itself. Melodee Hanes, the acting office administrator, told committee members on the opening day of the meeting that a structural reorganization of her office, which has been in the works for months, would be announced soon. The office is also close to releasing its program plan for next year, she said.

The associate administrator for budget and planning, Janet Chiancone, described to the committee a “mixed” outlook for federal funding for juvenile justice in the 2013 fiscal year. Federal money for programs administered by the federal juvenile justice office has steadily fallen from $461.5 million in fiscal year 2009 to $277 million in fiscal year 2012, a 41 percent decline, she said.

Although the 2013 fiscal year began Oct. 1, a gridlocked Congress has yet to reach a budget deal. The proposed House budget for 2013 further slashes funds for OJJDP programs to $214 million, while the Senate version increases funding from last year’s level for the OJJDP to $299.5 million, she said. Both chambers are in recess until after the presidential election.

On Friday, committee members were briefed on changes in federal and state legislation on juvenile justice in recent years, trends that speakers said were driven by falling rates of juvenile crime, declining youth incarceration rates, the availability of better research and a shift away from treating children like adults under the law.

Friday’s speakers included Nancy Gannon Hornberger, executive director of the Washington-D.C.-

Bart Lubow

based Coalition for Juvenile Justice – a network of citizens, advocates and professionals from every state who advise their local governments on juvenile justice issues and monitor their adherence to federal guidelines -- and Bart Lubow, director of the juvenile justice strategy group for the Annie E. Casey Foundation, a Baltimore-based nonprofit that has played a key role in funding reform initiatives around the country.

Sarah Brown, a senior researcher at the National Conference of State Legislatures, a bipartisan group of state legislators and their staff, described her recent report on trends in state legislation on juvenile justice in the last 10 years.

Speaking from Colorado via videoconference, Brown pointed to three separate rulings since 2005 by the U.S. Supreme Court that have adjusted federal standards for juvenile sentencing by abolishing the death penalty, life sentences without parole for non-homicides, and mandatory life sentences without parole for juveniles. These rulings reflect the impact of new research on adolescent development and highlight how many states are shifting toward treating juvenile offenders differently than adults, she said.

Between 2001 and 2011, 20 states passed laws to expand the jurisdiction of juvenile courts, such as by raising the age limit for juvenile offenses, she said. Other state trends include the passage of legislation improving young people’s access to sound legal defense, reallocating funds from correctional facilities to community-based alternatives, and focusing on young people’s mental health needs.

At least 10 states have passed laws to address racial disparities in the detention and incarceration of youth in the last 10 years, Brown said. And more than half of all states have passed laws aimed at supporting young people once they are released from detention or confinement.

Hornberger, who has lobbied Congress for system reform for 25 years, provided historical perspective on the trends affecting federal policy changes and provided recommendations for future legislation, including the long-overdue reauthorization of a sweeping federal bill on juvenile justice that was first passed by Congress in 1974.

“Generally, Congress has regarded juvenile justice and delinquency prevention to be a limited role,” Hornberger said. However, the 1970s brought a significant shift in the way people thought about the detention and incarceration of youth, their treatment as status offenders, their placement in adult jails, and their separation from adult offenders by sight and sound, she said.

The resulting federal legislation, the sweeping Juvenile Justice and Delinquency Prevention Act of 1974, marked “a sea change” that forced states to meet federal standards on how to treat youth within the justice system, Hornberger said. Subsequent reauthorizations of the Act in the 1980s and 1990s added more requirements for states, including new rules asking states to explore racial disparities in their confinement of youth.

Last reauthorized 10 years ago, the Juvenile Justice and Delinquency Prevention Act was due for reauthorization again in 2007 but has languished in Congress. Although a U.S. Senate committee has twice approved the reauthorization in recent years, the bills did not make it to the Senate floor. The House of Representatives has not acted on a reauthorization bill nor any legislation to do with juvenile justice in the last six years, Hornberger said.

Hornberger remains stoic. The 2002 reauthorization took six years to push through, she said. “It’s always been a long haul to get this Act reauthorized.”

In general, federal policy on juvenile justice has traditionally swung like a pendulum, with equilibrium rarely in the middle, she said. “Members of Congress are consistently going back and forth between punitive and rehabilitative approaches.”

Policy swings are frequently affected by changes in leadership, whether in the White House, on congressional committees, or within the Office of Juvenile Justice and Delinquency Prevention itself, she said.

Congressional legislation still demonstrates a trend toward criminalizing normal adolescent behavior, such as underage drinking or sexting, Hornberger said. And federal legislators are still wrestling with the choices of institutionalized care versus family and community-based solutions, she said.

“There have been trends in time where national policy has really spurred state reforms,” like in the 1970s, Hornberger said. But these days, national policy is playing catch-up with reforms initiated by national foundations and some states, she added.

While federal trends in legislation and policy so far appear promising, the legislative progress is fragile, she warned -- especially in critical areas like the consideration of adolescent development and racial and ethnic disparities.

Speaking after Hornberger, Lubow gave a spirited presentation that made clear he too thought there was lots of room for improvement.

For every 100,000 young people in the United States, 336 are locked up, the highest rate in the developed world, he said. South Africa is in second place, at nearly one-fifth the rate of the United States. This could not be explained by disparities in juvenile crime, he said.

“We lock kids up in this country for a lot of minor stuff. In fact, we lock them up for things that we do not lock adults up for,” Lubow said. “We do that, frankly, because adults are bullies. When we get frustrated with kids who do not follow our rules, we throw them into detention centers.”

What would happen, he asked, if judges and law enforcement could not fall back upon incarcerating kids when they were angered and frustrated by their behavior? “What positions, what creativity, what alternatives would we come up with?” he asked.

Necessary innovations include limiting the types of young offenders who get incarcerated, increasing non-residential community alternatives to incarceration, and changing the financial incentives for local governments to keep their children within their own system and not the state’s, Lubow said.

Sometimes reforms only happen after someone takes off a shoe and bangs it on the table, Lubow told the committee.

Photos by Kaukab Jhumra Smith

The Age of the Child

When I first began practicing in juvenile delinquency court in North Carolina eight years ago, I was shocked to discover that the maximum age of jurisdiction is 15.

This means if you are 16 or 17 and charged with a criminal offense, you are automatically prosecuted in adult criminal court. There are no exceptions, no possibility of waiving the rule, and no second chances. So, when a 10th grader pushes another student in the hallway of a school that has a zero-tolerance policy, the 16-year-old will face misdemeanor assault charges in criminal district court.  Likewise, a 17-year-old prosecuted for stealing a bike from a neighbor’s garage would face charges of breaking and entering as well as larceny.

Once in adult court, one of two general outcomes will result -- both of which are costly and counterproductive. Either these adolescents end up with criminal records that will likely follow them forever, harming their opportunities for higher education and gainful employment, or they will be given a “pass” because of their status as young offenders, in which case no one will take the time to address what caused the conduct. Under the first scenario, the criminal justice system has labeled and stigmatized a teenager without justification, and under the second, it has sent the message that the misbehavior is -- quite literally -- inconsequential.

Regardless, neither youth will have an opportunity to benefit from the resources and intensive supervision available in juvenile court, including psychological evaluations, drug and alcohol treatment and family counseling. Equally important, the parents of these teens will not be under the court’s jurisdiction and, therefore, will have no formal obligation to monitor and support their child during the pendency of the case or while the youth is on probation.

North Carolina has long been in the minority on this issue; the state is currently only one of two to set the maximum age of juvenile court jurisdiction at 15. Ten other states have set it at 16, while the vast majority -- 38 states -- have set it at 17. I have been involved over the years in an unsuccessful statewide campaign to raise the maximum age from 15 to 17 in North Carolina, speaking before the Legislature, writing academic articles on the law and publishing commentary in support of reform.

Although proposed legislation to raise the age was approved by a state House Judiciary committee, it languished in the House Appropriations Committee and is now in the hands of an “implementation commission,” all of which means that North Carolina’s 16- and 17- year-olds -- no matter the circumstances of the offense -- continue to be prosecuted in adult criminal court.

Given this perspective, I was heartened by the June report of the National Conference of State Legislatures that a “major trend” in juvenile justice policy in the past decade has been to expand the reach of the juvenile court by increasing the upper age of jurisdiction.

In 2007, for example, Connecticut raised the maximum age from 15 to 17, moving more than 10,000 new cases from criminal to juvenile court annually and returning about $3 in benefits for every $1 in costs; the Rhode Island Legislature rejected the governor’s recommendation to drop the maximum age of juvenile court jurisdiction from 17 to 16; and Missouri expanded juvenile court jurisdiction by including all those 18 and younger who are “status offenders” (alleged to be truant, runaways, or beyond the control of their parents). Similar reforms have been passed in Colorado, Illinois, Mississippi and Oklahoma.

Yet, ironies continue to abound. In August, New York Gov. Andrew Cuomo signed a bill requiring those under 18 to have parental consent before they may pierce any body part other than their ears. Not only that, but consent must be given by the parent in writing at the time of the piercing and in the presence of the shop owner or technician. The bill was drafted in response to health and safety concerns, including research showing that 20 percent of all body piercings result in infection.  Such a law makes sense, of course, but it was passed in the only other state besides North Carolina that considers all 16- and 17- year-olds to be adults whenever they are charged with a criminal offense.

So, how to explain a scenario in which a parent’s written, in person consent is required before a 16-year-old can get her belly button pierced but the same youth can be criminally prosecuted as an adult if she steals a magazine from the local drug store?

It is, most likely, the function of political expedience.  Sixteen- and 17- year-olds who are charged with crimes do not comprise a powerful special interest group. The majority are children of color; they live in low-income neighborhoods, and their parents (for the most part) do not vote. In contrast, a significant number of 16- and 17-year-olds who get body piercings are white and from families of means. Their parents lobbied for the New York bill; the governor delivered.

I was not surprised to learn that North Carolina has a similar bill on the books. My hope is that a law to raise the age of juvenile court jurisdiction is not far behind.

Report Finds States Pulling Back from Tough Laws of ’80s, ’90s (Watch the Video)

By Natalie Krebs and Eric Ferkenhoff

Keynote speaker Robert Schwartz / Photo by Gideon Resnick of The Chicago Bureau

CHICAGO-Fears that a generation of menacing adolescents would stalk cities and kill at will never came to pass, and it appears states have gotten the message. Legislators are now relaxing harsh laws against minors enacted in the late 1980s and 1990s, according to a report out Tuesday.

The study found children lack the mental capacity to commit crimes as adults. States have also raised the age at which juveniles may transfer to adult courts, and they now recognize most minors involved in crimes have some type of mental illness.

But the racial disparities plaguing the juvenile justice system were among the most telling findings, with statistics heavily skewed against blacks and Hispanics. The National Conference of State Legislatures (NCSL) study reported, “minority youth come into contact with the juvenile justice system at every stage at a higher rate than their white counterparts.”

In response to this imbalance, 10 states – including Illinois – enacted disproportionate minority contact legislation between 2001 and 2011, the years covered in the report.

This echoes a study by the same group in 2009, in which the introduction states:

“African- Americans, Hispanics, Asians, Pacific Islanders and Native Americans comprise a combined one-third of the nation’s youth population. Yet they account for over two-thirds of the youth in secure juvenile facilities.”

Tuesday’s report – released during the NCSL's meeting in Chicago and funded by the John D. And Catherine T. MacArthur Foundation – goes on to say that research “suggests that minority youth receive harsher treatment than their white counterparts at nearly every stage of the juvenile justice process.”

MacArthur Foundation Luncheon at the NCSL, with Robert Schwartz from The Chicago Bureau on Vimeo.

The start of such tough juvenile sentences largely stemmed from the violence of the 1980s and 1990s, when powerful street gangs were looking to control territory in Chicago and other cities across the country.

Stories about youth like Yummy Sandifer – an 11-year-old boy hunted by police for gunning down a 14-year-old girl and later killed by teen members of his own gang – made the cover of Time magazine. Biographers wrote books about ‘Little B,’ and authorities arrested young men and women at alarming rates for abandoning, killing, maiming and neglecting children.

It was a frightening period, and lawmakers were scared into action. State legislators passed laws that treated young children – just 12 and 13 in some cases – as adults, which automatically transferred their cases to adult court based on the nature of their crimes.

But in recent years, the courts have discussed adolescent development literature, according to the executive director of Pennsylvania’s Juvenile Law Center, Robert Schwartz.

“[They’re] recognizing adolescent’s impetuous and ill-considered actions and decisions,” Schwartz said. “Their vulnerability to negative influences and outside pressures, including peer pressures, and their capacity for change. Those differences, at the word of experts, make juveniles less guilty by reason of adolescence. Youth isn’t a defense, but it is a mitigator.”

Cities and states are giving a nod to this, with some passing laws that loosen the grip on teens and minors while others revisit the issue.

But for many officials, it’s more than just making decisions that aim to benefit children; for some, it’s just as much about costs which are much higher for incarceration than, for example, some treatments.

At the same time, it’s not about making excuses for youth violence and other crimes; they must be held accountable – just at the age they are, according those at the event Tuesday.

For its part, The MacArthur Foundation has started programs in 35 jurisdictions in 15 states. The idea is to build on rehabilitative services much more than punishment for crimes committed when, according to research, young brains were so underdeveloped they couldn’t grasp the gravity of the crime.

The problem, according to many experts, is there is no consistency in the system. Fifty states; 50 systems of juvenile justice. Few argue for an overall federal law, but some sameness in the legal community could help in organizing records and tracking children as they mature through the system.

The report does credit moves by the United States Supreme Court in moving states to action and away from reactive policies that punish more than help juveniles.

For example, in 2005, the death penalty was taken off the books for juveniles. Five years later, life without parole was erased for all minors convicted for crimes less severe than murder.

Then this year, in June, the high court ruled that mandatory life without parole for minors was unjust even in the case of murder, siding with arguments that a child’s brain is not developed to the point where adult decisions can be made, thought through and acted upon.

Along the way, the court cited MacArthur Research Network studies about the nature of adolescents. In a word, they’re impulsive, and should not be held to the same standard as actual adults even if the crime is fitting for tough penalties. (Here, in Illinois, the state raised the age from 17 to 18 for juveniles to be treated as adults for misdemeanor crimes.)

The Supreme Court’s rulings prompted action on the state level – which, to some degree, seemed as budget-minded as it was a recognition of a child’s mental state.

“Research also shows that moving 16- and 17-year-old youth out of the adult system into the juvenile system will return about $3 in benefits for every $1 in cost,” the report found.

But states did make their own moves. Arizona was out front, passing a law in 2001, the first year studied in the report, that said juveniles must be placed in residential facilities if “the juvenile has psychological and mental health needs and requires the court to periodically review the progress of the treatment given.”

Even traditionally non-progressive states have made seemingly bold moves.

Consider Georgia, which has recently been debating a wholesale overhaul of its juvenile system.

In 2006, the state began mandating full mental health evaluations of juveniles deemed not competent, meaning the minors be exposed to community-based treatments and other rehabilitative services before detention in a secure facility is even considered.

“The legislative trends evidenced during the past decade,” according to the report’s findings, “reflect a new understanding of adolescent development and the value of cost-benefit analysis of existing data-driven research."

Future Uncertain for Child Sex Bill

State Senator Renee Unterman of Buford already has the distinction of being the only female Republican in a male-dominated Senate, but she really became a standout during the last legislative session when she introduced a bill that asserted that young prostitutes in Georgia should be deemed victims, not criminals.

In fact, she set off a firestorm of controversy with SB304, which declared that boys and girls under the age of 16 shouldn’t be charged with prostitution, but instead diverted to treatment or therapy. Child welfare advocates championed the move as a step in the right direction for sexually exploited young people in Georgia. Opponents, however, accused Unterman, of attempting to “decriminalize” prostitution. The age of sexual consent in Georgia only seemed to complicate the issue further. Sen. Unterman spoke to JJIE’s Chandra R. Thomas about the latest on the controversial measure.

Let’s begin with a recap of what happened with your bill.

The bill died because it did not get a hearing before the judiciary committee. So, the bill is dead. I’ve got to start all over in January with a new bill. I have not made up my mind if I will reintroduce it.

Any other updates to share on it?

I didn’t have much success on the state level but I am making some headway on the national front. I recently got a similar, larger measure passed regarding a variety of sex crimes at the National Conference of State Legislatures. It includes a lot of things like human trafficking, forced slavery and the sexual exploitation of children. It went through for all of the 50 states. It’s the first time a national policy got adopted by elected officials in the state legislature nationwide.  It took me a year to do it.

What does this nationwide measure entail?

It’s a policy that can be adopted into law by the legislators in their individual states. They can change it up to address specific needs in their state, so it’s essentially a template that lawmakers can use to strengthen laws addressing human trafficking.

You faced a lot of opposition for your state bill, what was that like?

When it was introduced, that particular bill had a lot of opposition from the religious right. My contention was that a child under the age of 16 [who is selling sex] is a victim, not a criminal, who needs treatment. The Christian conservatives feel that they should be locked up.

What was your response?

I tried to change it (the bill) so that the conservatives would like it, but it never got a hearing. Unfortunately our juvenile code is so complicated. The juvenile code is so messed up in Georgia. It’s being rewritten right now. One of the main issues of contention is when is a child a victim and when is a child a criminal?

What do you think?

I believe that when a child is 12 or 13 years old, that the rest of their life should not be ruined if they end up in jail. If so, they should be sent to a juvenile detention center where their record can be expunged when they’re older.

What kind of positive reaction did you receive regarding the bill?

It’s been very positive. In a couple of weeks Fox News in D.C. will be taping an interview here for a documentary featuring my bill. The Washington Post has written a story on [the bill]. It is really bringing the issue to the forefront for Americans.

What inspired you to write the bill?

I had a preacher to come and see me in Atlanta. He told me what was happening. He said just down the street from the state capitol this was going on. He said children were getting off the bus at the Greyhound station and literally getting picked up by pimps. I wanted to do something about it.

Do you agree that the fact that 16 is the age of sexual consent in Georgia only seems to complicate this matter further?

Yes. It is state law that a child under the age of 16 cannot consent to sex. It’s just a very difficult issue here in Georgia due to our Juvenile Code. It’s very complicated.

What do you plan to do moving forward?

I haven’t started deciding yet if it will be reintroduced. Even if I don’t get something passed it raises awareness. This is a really important here in Georgia because Atlanta is a known hub for child prostitution.

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JJIE.org staff writer Chandra R. Thomas is an award-winning multimedia journalist who has worked for Atlanta Magazine and Fox 5 News in Atlanta. The former Rosalynn Carter Mental Health Journalism Fellow and Kiplinger Public Affairs Journalism Fellow may be reached at cthom141@kennesaw.edu.