Update on Federal Legislation Affecting Detention ... - JDAI Helpdesk

Reauthorization of the
Juvenile Justice and
Delinquency Prevention Act
(JJDPA)
Mark Soler, Exec. Dir., Center for Children’s Law and Policy
Liz Ryan, CEO, Campaign for Youth Justice
Laura John, Law and Policy Analyst, W. Haywood Burns Inst.
Dana Shoenberg, Senior Staff Attorney, CCLP

JJDPA
• JJDPA authorizes federal funds to go to the
states for juvenile justice
• In exchange, expectation that states comply
with core requirements and write plans for
delinquency prevention and intervention
• The U.S. Justice Department’s Office of Juvenile
Justice and Delinquency Prevention (OJJDP) has
reporting and technical assistance
responsibilities
• Each state has an advisory group to guide plans
and decide how to allocate funds

Guiding Principles of JJDPA
• Juveniles are different
from adult offenders
• Juveniles are best served
in age-appropriate
facilities
• Status offenders should
not be detained except in
exceptional circumstances
• Youth of color should not
be over-represented in
the system

• Jail Removal
Four Core Protections
In Current Law
• Juveniles should not be placed in adult jails
• Applies pre and post-trial
• “Sight and Sound” Separation
• Applies to juveniles who are temporarily
placed in adult jails
• Must be separated from adult inmates by
“sight and sound”

Four Core Protections
In Current Law, cont.
• De-institutionalization of status
offenders (DSO)
• Status offenders cannot be locked up
unless they violate a valid court order
• Disproportionate Minority Contact
(DMC)
• States must “address” problem of overrepresentation

History of the Legislation
• First written in 1974; the original requirements
included:
• Deinstitutionalization of Status Offenders (DSO)
• Sight and Sound separation
• 1980 reauthorization added Jail Removal requirement
• 1992 reauthorization added Disproportionate Minority
Confinement (later, “Contact”) requirement
• Reauthorized without serious changes since then; Last
reauthorized in 2002
• Current reauthorization: S. 3155 introduced by
Senators Leahy (D-VT), Specter (R-PA), and Kohl (D-
WI); now has 8 co-sponsors.

Proposed Legislation: S. 3155
• Strengthens core requirements
• Sets appropriate funding levels and
provides stronger incentives for States to
comply and use best practices
• Includes new protections for incarcerated
youth
• Proposes more collaboration between
States and federal government (OJJDP)

Status of S. 3155
• Introduced June 18, 2008
• Considered and approved by Senate
Judiciary Committee July 31, 2008
• To become law:
• must pass through committees in both the
House and Senate;
• be approved by the full House and Senate;
• have any differences in the versions resolved
by conference committee.

Youth Charged as Adults

Risk to Youth in Adult Jails
• Current law recognizes the risks youth
face in adult jails
• Sexual assault
• 13% of rape victims but

Risk to Youth in Adult Jails, cont.
• More than half of youth tried as adults are sent
back to juvenile court or not convicted, but
have spent at least 1 month in adult jail
• CDC and OJJDP reports - youth tried as adults
are more likely to commit more crimes
• Conditions in adult jail amount to pre-trial
punishment

Jail Removal in S. 3155
• Extends the jail removal protection to all youth, even
youth charged as adults
• Youth charged as adults must be detained pre-trial in
a juvenile detention facility unless a judge determines
it is “in the interest of justice” to hold the youth in an
adult jail
• A judge must consider a variety of factors under the
interest of justice test, including age, the nature of
the alleged offense, and the availability of programs
for the youth
• This is a good first step toward removing all youth
from adult jails pre-trial

“Sight and Sound” in S. 3155
• S. 3155 extends “sight and sound” separation to
all youth, even youth charged as adults
• Youth charged as adults who are held in an
adult jail under the ‘interest of justice” test
must be sight and sound separated from
adults unless a judge determines it is in the
interest of justice to allow the youth to have
contact with adult inmates
• Again, a strong first step toward separating
youth charged as adults from adults in adult
jails

Procedural protections in S. 3155:
Jail Removal and Sight and Sound
Separation
• 30-Day Review: If a judge allows a youth
charged as an adult to be held in an adult jail or
allows sight and sound contact with adult
inmates, the judge must hold a hearing every 30
days to review whether it is still in the interest of
justice to hold the youth or allow contact.
• Maximum limit: Youth charged as adults can
only be held for a maximum of 180 days unless
a court determines there is a good cause for an
extension.

“Adult inmate” - S.3155
• Allows states to continue placing youth
convicted as adults in juvenile correctional
facilities until they reach the maximum
extended age of juvenile jurisdiction
without losing funding
• States are not punished for using humane,
age-appropriate juvenile facilities
• Allows states to place convicted youth in
juvenile correctional facilities until they “age
out”

S. 3155 Implications for JDAI sites
• Space cleared through successful JDAI
efforts may have a new and important use
• Sites will be able to serve adult-charged
youth in more appropriate, safe and
effective facilities

Status Offenders

Status Offenders in S. 3155
• Status offenses: truancy, breaking curfew,
disobeying parents, running away
• Current law: Status offenders can be
detained under the valid court order (VCO)
exception – i.e. a youth is truant, a judge
issues a valid court order requiring the youth
to attend school, the youth violates the
judge’s orders and skips school

Problems with Detaining Status
Offenders
• Detaining status offenders does not address
the root of the problem- it often exacerbates
problems
• Girls are disproportionately charged with
status offenses and punished more severely
than boys
• Community-based alternatives to detention
are more effective and less costly

S. 3155 and Status Offenders
• S. 3155 requires States to phase out the
VCO exception within three years unless a
State can show undue hardship
• States may apply to OJJDP for one-year
extensions for undue hardship

S. 3155 and Status Offenders
(cont.)
• In the interim, S. 3155 establishes
procedural safeguards for status offenders
including:
• A 7-day ceiling for detention of status
offenders
• Requires the court to:
• Identify the VCO violation; and
• Provide findings to show that there is no
appropriate less restrictive alternative
available.

S. 3155 Implications for JDAI sites
• Status offenders may be detained less
often and eventually phased out of
detention facility populations
• Need to reinforce that the seven-day
allowable detention for violation of a valid
court order should not encourage sites
that were not detaining youth under the
VCO exception to start using the exception

Reducing Racial and Ethnic
Disparities
Also Known As: DMC

Current state of DMC
• Youth of color are:
• Disproportionately represented in the juvenile
justice system of every State.
• Disproportionately represented in all stages of
the juvenile justice system… and the rates of
overrepresentation increase as youth go through
the system.
• More likely to be detained for low level offenses.
• More likely to receive out of home placements.
• More likely to be placed in adult jails.

Disproportionate Minority Contact:
The Facts
• African- American
Youth
• 16% of adolescent
population, but 38%
of incarcerated youth
• Twice as likely to be
detained in locked
facilities away from
home for drug
offences as whites
• Latino Youth
• Incarcerated twice as
frequently as whites
• Sentences are twice as
long for drug offences
as those of whites
• 1.5 times more likely
to be sent to adult jail
than whites

Current state of DMC
25
250
20
200 40
15
150 30
100 20
10 550
00
US Detention US Detention Rates for for Technical Drug Rates Offenses (2006) Violations (2006)
49
46
228
20
29
103 9
152
9
12
343
227
5
White Black Hispanic Native America Asian
Compared to White youth:
Rate of of Detention per 100,000 Youth
•Black youth are 5.3 6.6 4 times more more likely likely to to be be detained for for technical drug offenses. violations.
•Hispanic/Latino youth are more 32.5 times than as as likely twice likely to as to be likely be detained to be for detained. for drug technical offenses. violations.
•Native American youth are 3.5 3.8 times as as likely likely to to be be detained.
for for drug technical offenses. violations.
Source: Sickmund, Melissa, Sladky, T.J., and Kang, Wei. (2008) "Census of Juveniles in Residential Placement Databook." Online. Available:
http://www.ojjdp.ncjrs.gov/ojstatbb/cjrp/

History of DMC in the JJDPA
• 1974: Juvenile Justice Delinquency Prevention
Act (JJDPA) passes to put in place protections
for youth involved in the JJS.
• 1988: Juvenile Justice Delinquency Prevention
(JJDP) Act has required states that receive
formula grant program funding to determine
whether the proportion of juvenile minorities in
confinement exceeds their proportion of the
population and, if so, to develop corrective
strategies.

History of DMC in the JJDPA
• 1992: Congress elevated this issue to a “core
requirement” of the JJDPA
• 2002: OJJDP changed the requirement from
reporting the proportion of minority juveniles in
confinement to include the proportion of
minorities at each key point of contact in the
juvenile justice system.
• 2007-2008: JJDPA up for reauthorization.
Act4JJ advocating to strengthen requirement to
include specific guidance to State and localities

Current DMC Language
•“address juvenile delinquency prevention
efforts and system improvement efforts
designed to reduce, without establishing or
requiring numerical standards or quotas, the
disproportionate number of juvenile
members of minority groups who come
into contact with the juvenile justice
system.”

Problem with Current Statute
• No oversight of efforts
• Vague requirement to “address” DMC
• Lack of concrete direction for States
• Lack of measurable objectives
• Lack of guidance around data collection
• No requirement to map critical decision making
points
• No mandate to learn causes of disparities
• “Minority groups” distinction problematic
• No mandate for tracking and publicly reporting
efforts and progress

S. 3155
• ‘‘(15) implement policy, practice, and system improvement strategies at the
State, territorial, local, and tribal levels, as applicable, to identify and reduce racial
and ethnic disparities among youth who come into contact with the juvenile justice
sys tem, without establishing or requiring numerical standards or quotas, by—
• ‘‘(A) establishing coordinating bodies, composed of juvenile justice stakeholders
at the State, local, or tribal levels, to oversee and monitor efforts by States, units of local government,
and Indian tribes to reduce racial and ethnic disparities;
• ‘‘(B) identifying and analyzing key decision points in State, local, or tribal
juvenile justice systems to determine which points create racial and
ethnic disparities among youth who come into contact with the juvenile justice system;
• ‘‘(C) developing and implementing data collection and analysis
systems to identify where racial and ethnic disparities exist in the juvenile justice system and to
track and analyze such disparities;
• ‘‘(D) developing and implementing a work plan that includes
measurable objectives for policy, practice, or other system changes, based on the needs
identified in the data collection and analysis under subparagraphs (B) and (C); and
• ‘‘(E) publicly reporting, on an annual basis, the efforts made in
accordance with subparagraphs (B), (C), and (D);’’

S. 3155 Implications for JDAI sites
• Would bring the nation’s approach to DMC
in line with the approach prescribed by
JDAI and others
• Potential additional sources of funding for
JDAI DMC projects
• JDAI sites making significant DMC
progress will continue to be models for the
nation

Conditions of Confinement

History of Conditions of
Confinement in JJDPA
• The JJDPA has never addressed the
dangers faced by youth in juvenile
facilities

Why Add Conditions Provisions
to the JJDPA?
• Recent horrifying problems in juvenile
facilities around the country have captured
public attention
• Examples include:
• Lengthy shackling of girls in Mississippi
• Restraint deaths in Maryland and Tennessee
• Sexual misconduct and pepper spray
increases in Texas
• Physical abuse, excessive force and forced
medication in Ohio

Conditions of Confinement
Provisions in S. 3155
• Conditions focus in the JJDPA is aimed at:
• Eliminating use of dangerous practices,
unreasonable restraint and unreasonable
isolation;
• Gathering better data on states’ use of
isolation and restraints in juvenile facilities;
and
• Making more technical assistance available to
states to improve conditions

What are dangerous practices?
• S. 3155 defines dangerous practices as:
An act, procedure, or program that creates an
unreasonable risk of physical injury, pain, or
psychological harm to a juvenile subjected to
the act, procedure, or program.

Dangerous practices, cont.
• S. 3155 does not give examples, but our
examples would include, among others:
• hog-tying
• choking
• pepper spray
• use of belly belts or belly chains on pregnant
girls
• use of psychotropic meds without adherence
to proper medical standards.

Conditions in State Plans
• States would be expected to:
• Develop policies and procedures; and
• Provide training for staff to
• Eliminate use of dangerous practices,
unreasonable restraints and unreasonable
isolation
• Include development of effective behavior
management techniques

What practitioners know
• Facilities need adequate programming and
staffing as well to keep youth occupied
and safe, but this is an important start.

Other Conditions Provisions
• OJJDP must report a summary of data on
use of restraints and isolation on juveniles
held in secure detention and correctional
facilities
• OJJDP must coordinate technical
assistance to states and local governments
to promote methods for improving
conditions of juvenile confinement

JDAI Relevance
• Conditions reforms grounded in JDAI
facility conditions standards
• Additional help should be available to
localities to improve facility conditions
• Acknowledges the importance of
eliminating the most dangerous and
abusive practices, in keeping with JDAI
philosophy promoting safe and humane
institutions

Other Changes that Impact JDAI
• S. 3155 would require states to include in
their juvenile justice plans:
• Alternatives to detention including culturally
and linguistically competent community based
services
• Plans to reduce incarceration of youth waiting
for residential treatment placements
• Family engagement in design and delivery of
services
• Use of community-based services for at-risk
youth

National Poll Data
• CCLP national poll for Models for Change
found that:
• More than 70% of the public agree that
incarcerating youthful offenders without
rehabilitation is the same as giving up on
them.
• 9 out of 10 believe that “almost all youth
who commit crimes have the potential to
change.”

National Poll Data, cont.
• Eight in 10 people favor reallocating state
government funds from incarceration to
programs that provide help and skills to
enable youth to become productive citizens.
• More than eight in 10 said that providing
community-based programs and services –
including education, job skills, mentoring,
mental health treatment, counseling, and
community service – is an effective way to
rehabilitate youth .

Conclusion
• S. 3155 moves significantly toward the
goals research shows the public wants
• For more information go to the Act for JJ
website: www.act4jj.org

Contact Information
Mark Soler, Executive Director
Dana Shoenberg, Senior Staff Attorney
Center for Children’s Law and Policy
202-637-0377
msoler@cclp.org; dshoenberg@cclp.org
Liz Ryan, Chief Executive Officer
Campaign for Youth Justice
202-558-3580
lryan@campaign4youthjustice.org
Laura John, Law and Policy Analyst
W. Haywood Burns Institute
415-321-4100 x108
ljohn@burnsinstitute.org