Judgment Day Looms for Juvenile Judges

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It’s disorder in the court for the 2,000-member National Council of Juvenile and Family Court Judges (NCJFCJ), headquartered in Reno, Nev. After 2- 1/2 contentious years on the job, Executive Director David Mitchell is on his way out.

Judges have a richly earned reputation for juvenile behavior when it comes to managing anything larger than a courtroom, where rule by dictate is standard management practice. The recent history of NCJFCJ – with a staff of 80 in Reno and 35 at its affiliated National Center for Juvenile Justice (NCJJ) in Pittsburgh, and a combined budget of $14.3 million in 2002 – does little to dispel that image.

In 1999 Lou McHardy, a former St. Louis juvenile court administrator, retired as executive director of NCJFCJ after a successful 28 years on the job. One essential element of McHardy’s success, says a chorus of fans, was Jim Toner, the deputy he hired in 1972. At that time the NCJFCJ had a staff of five. Since then, Toner has been the maestro conducting NCJFCJ’s well-regarded training events, which number 195 annually.

But when McHardy retired, he also left behind a bad debt: David Funk, a former Nevada bank loan officer who became executive director, but whose cultural mismatch with staff and the NCJFCJ’s 30-member board of judges was painful for all. Funk was sacked in 2001.

The board again looked past Toner as a candidate and hired Mitchell, a Baltimore Circuit Court judge, for the top post. He’s a former juvenile court judge who was usually counted among the good guys in the decades-long struggle to improve Maryland’s tortured juvenile justice system.

The 59-year-old politically progressive judge – who once told an interviewer, “I view law … as a vehicle of positive social change” – wasn’t a good philosophical fit. Mitchell, says one veteran observer, is “kind of a renegade.” The NCJFCJ, on the other hand, is dominated by elected or appointed judges from small to midsize counties.

Ohio judges have been particularly influential and resistant to change, both statewide and nationally. NCJFCJ’s president is Toledo, Ohio, Judge James A. Ray, 64. Ray, however, is atypical. He broke with his Ohio colleagues to support Reclaim Ohio, which began in 1994 to pay counties to keep their delinquents in local programs. In Ray’s Lucas County, commitments of youth to the Ohio Department of Youth Services have dropped from 350 in 1989 to 80 last year.

By last summer, organizational consultants were hard at work arbitrating Mitchell’s tense relationship with NCJFCJ stakeholders. Mitchell’s tenure was characterized by one outside but close observer as “ineffective.” In that judgment of Mitchell there is a hung jury. Ray calls Mitchell “a man of profound integrity,” while acknowledging that he is “a little quirky.” Tucson Juvenile Court Judge Stephen Rubin, a member of the NCJFCJ board of trustees, found Mitchell to be “a dynamic leader” on whose watch “the organization has done very well.”

No quibbling about that. In 1998 the NCJFCJ reported an income of just under $8 million, more than $6 million of it from government sources. By 2002, revenue totaled $14.3 million, with $12.2 in the form of federal government grants and cooperative agreements, most from various subagencies of the U.S. Office of Justice Programs (OJP).

In January, with Mitchell’s three-year contract set to expire in November, it was time for an Alford Plea: Mitchell would not seek a new contract, and the “good old boys faction” of the board wouldn’t fire him. But when Mitchell announced his departure in March, he surprised many in NCJFCJ by saying he would stay on the job – and the payroll – until Nov. 4.

What does he cost the NCJFCJ? It’s hard to say. While federal law requires nonprofits to release their federal tax returns, the group’s most recent completed returns are for 2001. Mitchell served only part of that year. Those returns, combined with current information about top salaries at NCJFCJ, point to an annual salary for Mitchell of about $160,000.

Several calls to Mitchell through his Reno office drew a “no comment.” In an essay published in the group’s spring 2004 issue of Juvenile and Family Justice Today, Mitchell wrote, “It has been a joy for me to aid in the guidance of this organization for three years. Its goals and mission will have my continued allegiance.”

Now the search is on for a successor, with one staffer admitting, “The board knows it’s not such a great job.”

By the June 1 application deadline, more than 30 candidates had volunteered for the voir dire, which is expected to yield a handful of finalists. The new executive director is scheduled to be announced at the group’s 67th annual conference, July 18-21 in Portland, Ore. But, cautions Ray, it’s possible that “maybe nobody” will be hired by then.

They need not search for Dean Toner. He announced that he’ll retire in February 2005. Says one admirer, “He has the best Rolodex in the business.”

That leaves one insider in the running: Mary Mentaberry, project director of the NCJFCJ’s Permanency Planning for Children Department. The department and Mentaberry have won considerable, but not universal, praise. Those who have worked with her closely use terms like “an absolute crackerjack.” But Mentaberry is not a judge or a lawyer. (Nor were McHardy or Funk.) She is an up-through-the-ranks work horse with what one West Coast observer calls “tremendously powerful expertise.” Nose Knows knows better than to jury tamper or even contact Mentaberry, an injudicious act that could cripple her chances of landing the job.

Politically Bent

Whoever lands the job is in for a challenge. Over the past decades, the NCJFCJ’s leadership has curried close ties with national political leaders, with a steep tilt toward the GOP. The group’s obsession with opposing the decriminalization of status offenders – the key early reform of the 1974 Juvenile Justice and Delinquency Prevention Act, which established the Justice Department’s Office of Juvenile Justice and Delinquency Prevention (OJJ) – cast it as an outsider during the Carter administration.

Denied its perceived fair share of OJJ largess, in 1982 the NCJFCJ drew up an enemies list of OJJ-funded groups that included the American Bar Association, the National Legal Aid and Defenders Association and a progressive former Denver juvenile court judge, Ted Rubin. NCJFCJ deemed all as less worthy of support than itself. Bypassing OJJ, the group turned to conservatives in Congress, winning a noncompetitive earmark grant in the mid-1980s. That success breached the anti-earmark firewall that until then had protected OJJ’s annual discretionary appropriation. The grant is designed to fund innovations and promising practices in the juvenile justice field.

That once-lucrative legislative maneuver by the juvenile court judges has come back to injudiciously bite the NCJFCJ in its judicial rear end.

Over the next two decades, the percentage of OJJ national discretionary funds earmarked by Congress grew helter-skelter. The stagnant size of the money pie simply couldn’t keep pace with the number of local and national groups clamoring for a slice of the pork pie. Now those earmarks effectively divvy up the agency’s fisca l 2004 discretionary spending among more than 100 groups.

The NCJFCJ has employed Tom Madden, a former general counsel of the Office of Justice Programs’ (OJP) predecessor agency, on its earmark mission. Madden, a law partner in Venable, Baetjer, Howard and Civiletti, has lobbied on behalf of NCJFCJ for a quarter-century. In 2003, U.S. Senate records show, Madden earned more than $10,000 for unspecified services to NCJFCJ. Internal Revenue Service records show lobbying expenses for NCJFCJ in 2002 of $17,670. This is peanuts by K Street standards and indicative of the NCJFCJ lobbying doldrums on Capitol Hill. Despite Madden’s lobbying, on Mitchell’s watch the NCJFCJ’s annual earmark slipped from $3 million to this year’s $1.75 million, a 42 percent cut. Ray attributes the drop to the decline in OJJ’s overall spending levels.

In the 1990s era of super-predator hysteria, state legislatures largely enacted the conservative juvenile justice agenda. When the Juvenile Justice Act was reauthorized in 1992 and 2002, conservatives hoped to eliminate its mandated liberal reform goals. In testimony before the 2002 reauthorization, Cincinnati Judge David Grossman, speaking on behalf of the NCJFCJ, basically blamed the rise in serious juvenile crime on judges’ inability to lock up truants and runaways because of the act’s provisions for deinstitutionalizing status offenders.

With the judges having cast their lot with congressional Republicans, few Capitol Hill Democrats have reason to worry about the NCJFCJ’s declining earmark. One major player who has been pounding the halls of Congress on behalf of progressive juvenile justice policies says of the NCJFCJ: “They’ve never been a part of any” coalition or letter-signing campaign on pertinent issues.

NCJFCJ president Ray pronounces the go-it-alone modus operandi a thing of the past. The group’s “attitude has completely changed” says Ray, citing recent cooperative efforts with the Child Welfare League of America (run by Clinton-era OJJ Administrator Shay Bilchek), the Coalition on Juvenile Justice, Seattle-based National CASA and the 750-member National Juvenile Court Services Association, an NCJFCJ affiliate whose president is Alvin Cohn, a Montgomery County, Maryland, court manager.

That view of NCJFCJ as a positive ally for youth isn’t shared by many outsiders. A former NCJFCJ board member says, “They didn’t speak out on time” on the key issues of transferring juveniles to adult courts and on the overrepresentation of minorities in the youth corrections system. One California juvenile justice policy expert says of the NCJFCJ, “They are always five steps behind.” Hired gun Madden declined to offer a more positive view, saying only, “I don’t comment on clients.”

Reflecting on Capitol Hill events over the past decade, one former Clinton-era official laments the NCJFCJ’s decline in influence and prestige, saying, “People [on Capitol Hill] bought their silence.”

In absentia

Silence of a different kind was on stage at the NCJFCJ’s largest-ever training event, in Las Vegas in late March. It was co-sponsored by the National District Attorneys Association.

What better platform for J. Robert Flores, President Bush’s appointee to administer OJJ, to articulate the administration’s juvenile crime reduction strategy? Frequent flier Flores, who has traveled from Turkey to Hawaii on the OJJ job, was invited to address a plenary session of about 1,600 people.

“The OJJDP Report,” as the 10 a.m. session was billed, is a model of oratorical brevity. The assemblage sat in vain while Willie Smith, deputy adminis- trator of Nevada’s Youth Correctional Services, stalled the proceeding while anxiously awaiting Flores’ arrival. The audience, says Smith diplomatically, was “somewhat disappointed” that the session “didn’t actually happen.”
One retired OJJ official in attendance was “flabbergasted.” Says an NCJFCJ staffer from Reno, “What an insult!” Says a Pittsburgh NCJJ staffer, “I was amazed and disgusted.”

Not so Judge Ray, the NCJFCJ president. “I wasn’t offended,” he says.

But perhaps these learned juvenile justice professionals were better off with an impromptu extended coffee break. At lunch, Flores was given five minutes to speak over clattering silverware. He used it to report that, never mind, he didn’t really have anything to say, anyway. That is the opinion of Janet Bennett, a juvenile probation officer in Brownwood, Texas, who says, “I don’t have a clue what he said.” Flores gets a slightly better grade from another Texan, Ennise Henderson, a juvenile caseworker in Grand Prairie, who offers, “I wasn’t moved by it. Not enough effort.”

Fortunately, this singular non-event in the bizarre 30-year history of OJJ was captured on audiotape. For just $6.50, tapes of session JJ-4 (the no-show tape) and JJ-5 (the “why-show?” tape from lunch) can be ordered from the NCJFCJ for your easy listening pleasure as you ponder the prospect of four more years of Flores as the administrator of OJJ.

So where was the earmark-loving, pauper-thy-neighbor-promoting NCJFCJ when the unqualified Flores went before the U.S. Senate’s Judiciary Committee for his confirmation hearing in 2002? In absentia, too.

In more than 20 interviews for this column, two things stand out. First is the paradox of an organization that performs magnificently on the staff level and ineptly on national leadership. Second, even the NCJFCJ’s harshest critics wish it well, hoping for the nation’s 4,000 full- and part-time juvenile and family court judges to play a positive leadership role in national affairs. Says Judge Ray plaintively, “We are becoming an organization that collaborates.”

Perhaps at the upcoming Portland confab, dubbed “Make the Connection,” the NCJFCJ will join Ray in making the connection between joining in collaborative efforts with others in the youth field and being respected by others for pursuing the common good. Contact: NCJFCJ (775) 784-6000.