Judges Switch Stand on Incarcerating Status Offenders

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The National Council of Juvenile and Family Court Judges, which led the charge in the late 1970s to enable judges to lock up certain status offenders, may now serve as the catalyst to end the practice.

The council’s board of trustees, which recently gained greater authority to voice positions on behalf of NCJFCJ members, voted March 14 to support elimination of the valid court order (VCO) exception, which permits judges to incarcerate juvenile status offenders who have violated a judge’s order not to commit future offenses.

The board’s decision “came after careful consideration, debate and reflection,” NCJFCJ President Douglas Johnson said in a statement sent to Youth Today immediately after the vote.

,Some juvenile justice experts believe the council’s endorsement tilts the field toward revocation of the exception, if and when Congress reauthorizes the Juvenile Justice and Delinquency Prevention Act of 1974.

“When legislators look for key constituents” on juvenile justice, “they look at law enforcement, prosecutors and judges and say, ‘Guide us,’ ” said Shay Bilchik, former administrator of the Office of Juvenile Justice and Delinquency Prevention (OJJDP).

What it means

Status offenders are juveniles charged with offenses that would not be considered crimes if they were adults. Status offenses include truancy, possessing tobacco or alcohol, running away from home and violating municipal curfew laws.

One of the four core requirements of the Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA) is that states eliminate the incarceration of such offenders. The only valid exemption to the requirement is the so-called VCO exception, which was added to the law in 1980. It allows incarceration of a status offender on a subsequent offense if the youth was under a court order not to reoffend and violated that order.

For example, a youth who came before a judge for truancy might receive a court order from the judge instructing him not to miss school again during the current school year. If the youth is picked up for truancy again, he would have violated the court order. Under the core requirement guidelines, the judge could not lock up the youth for the act of truancy, but could lock him for violating the court order to not be truant.

Some states have their own laws governing their courts’ treatment of status offenders, and despite the federal guidelines, there is no legal proscription on locking up status offenders on their first offense. If states are found out of compliance with the federal requirement to prevent the detention of status offenders, they face a cut to their formula grants from OJJDP. For example, Mississippi was found out of compliance with the status offender standards in 2006, and lost one-fourth of its formula grant from OJJDP as a result.

It is difficult to determine exactly how many status offenders are locked up for first offenses or because of VCO exceptions. States are supposed to report status offenders in placement under the “technical violations” category in the Census of Juveniles in Residential Placement.

The number of youths sent to some form of residential placement for technical violations in 2006 was 15,316. Though many of the technical violations involve VCO exceptions, according to juvenile justice experts, the specific numbers are not available.

At least some states reported placement of status offenders separately. The 2006 census reported that judges detained, committed or diverted 4,717 status offenders to some form of residential placement, including secure facilities and group homes or shelters.

But it is unclear if those are placements for first-time offenses, in violation of the federal guidelines, or VCO exception placements reported under the incorrect line.

How it happened

The JJDPA, authored by former Indiana Sen. Birch Bayh (D), was passed in 1974 and prohibited judges from incarcerating youths who came before the court for actions that would not be considered crimes if they were committed by adults.

Some juvenile judges did not like the limitations on their options, and believed that housing status offenders in locked facilities is sometimes necessary for their own protection.

It was the judges council that led a move in the late 1970s to insert the valid court order exception into the JJDPA.

“It was all them,” said Robbie Callaway, then a juvenile justice advocate for the National Youth Work Alliance, one of a handful of groups that opposed the insertion of an exception. “They were the 800-pound gorilla.”

The exception was anathema to the intent of the act’s author, said Don Murray, the longtime legislative director for justice at the National Association of Counties.

“The trouble over status offenders was the reason why Birch Bayh got this act introduced: He was concerned that status offenders were being mixed with delinquent kids,” Murray said. “It didn’t make any sense to us that [the exception] should be placed into the act.”

In 1980, the council prevailed, and a VCO exception was added to the JJDPA. It never stopped serving as a source of contention between judges and juvenile justice officials, or within the ranks of the NCJFCJ.

At a meeting of the NCJFCJ in the early 1980s, former OJJDP Administrator Ira Schwartz got into an argument about the exception with a judge that became so heated Schwartz feared it might end in fisticuffs.

“He got so angry, I thought he was going to hit me,” Schwartz told Youth Today for an October 2009 story that profiled his tenure at OJJDP. “I was momentarily tempted to throw him off the balcony. That’s how hot the debate was.”

Reversing course

The Senate Judiciary Committee passed a bill to reauthorize the JJDPA in 2008 that included a requirement that states phase out the use of the VCO exception over the course of three years.

At the time, NCJFCJ remained neutral on the issue, even though the exception was hotly debated at the council’s annual conference.

The Senate committee passed essentially the same bill again in December 2009, amidst far more open criticism of the exception.

“Valid court orders are morally wrong and fiscally wrong,” Brian Huff, a juvenile judge from Birmingham, Ala., told a congressional hearing last month.

Meanwhile, for the first time NCJFCJ formalized the process by which it takes positions on legislative and policy issues. Under the new procedures, if the council is asked by members or other organizations to take sides on a policy or law, the council delegates a committee made up of board members and general members to vet the issue.

That committee reports to the board of trustees. Positions that are supported by two-thirds of the council’s 30 trustees become official; any vote below that threshold must be submitted to the general membership for a vote.

“Before, it wasn’t clear whether the board could speak for the organization,” said Judge Michael Nash, presiding judge of the Los Angeles County Juvenile Court and treasurer of the board of trustees for NCJFCJ. “As a member of the board for a number of years, I was never clear on that.”

Only two of the 30 trustees voted against supporting elimination of the VCO exception at the March 14 meeting, said Nash.

The action on reauthorizing JJDPA is now squarely in the court of the House Committee on Education and Labor, chaired by Rep. George Miller (D-Calif.).

The council’s decision to support the phase-out “definitely does” increase the odds that it will be included in the House version of the JJDPA reauthorization, said Miriam Rollin, vice president of Fight Crime: Invest in Kids.

  • Nancy Gannon Hornberger

    Thank you, John, and Youth Today for this very important overview of the issue.  My organization, the Coalition for Juvenile Justice — composed principally of JJDPA state advisory groups — supports the removal of the VCO exception to the DSO core requirement and applauds the change in position by the National Council. CJJ is also committed to work with judges, the SAGs, the Council and the states to “get ahead of the curve” to make these changes viable and meet the needs of status youth with family- and community-linked services and supports.   –Nancy Gannon Hornberger, CJJ

  • John M Rector

    this change in the position of the Council was in the category of “Hope springs eternal” until the revision on 3/14/10. Think of the tens of thousands of guiltless children victimized by the Child-Savers wrong-headed theories were subjected to the horrors of the “criminal JJ system” since the enactment of the JD Act in 1974. Thank God it seems as if the future may be brighter for  status offenders in the future.

    hen I was Birch Bayh’s Chief Counsel we  highlighted our concerns about the sytematic abuse of status offenders in many ways. For example, we would refer to a visit by the IRS to an adult regarding a possible criminal tax  code violation. The agent final told the target that there would be no charges filed. Yet she would be arrested and incarcerated because the government  was offendedby her status it did not like her lifestyle and her general failure to conform. Maybe at least fewer status offenders will be abused by the governments in the future. We saw the practices in the 60s/70s to be part of the cutting edge of gender discrimination. Little wonder since  Birch Bayh was  alsothe author of Title lX and the Equal Rights Amendment to the U.S. Constitution.

    thank you John


    John M Rector

    Counsel to Senator Birch Bayh 1971-77, OJJDP Adm./LEAA Assoc. Admin 1977-79