South Struggles With JJDPA Compliance in ’09; What About the Rest of the Country?

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Five states and three U.S. territories were out of compliance last year with at least one of the four core requirements of the Juvenile Justice and Delinquency Prevention Act of 1974. That information is not regularly publicized by the Office of Juvenile Justice and Delinquency Prevention (OJJDP), but the office was kind enough to supply us with a 2009 compliance report.

One state leader told us it’s the highest number of noncompliant states – seven findings of noncompliance involving five states – in a long time.

“To have seven-plus is unheard of over the past 10 years,” he said.

A quick refresher, for those who do not follow these details:

There are four aspects of juvenile justice systems that must be maintained by states in order to be considered compliant participants in the JJDPA. If a state is out of compliance in any of those four areas, OJJDP can withhold formula funds to the state.

The four core requirements:

Deinstitutionalization of Status Offenders (DSO): Juvenile judges cannot incarcerate juveniles who are found to have committed status offenses, a litany of actions that would not be considered crimes if they were adults (truancy, incorrigibility, running away, etc).

Jail Removal (JR): Incarcerated juveniles cannot be locked up or held in adult jails or prisons, with a few rare exceptions.

Sight and Sound Separation (SEP): In the rare instances in which juveniles can be held in an adult facility, they must be kept out of sight and sound of adult inmates.

Disproportionate Minority Contact (DMC): The state must make efforts to assess and address differences in the way that minority youth are treated by the juvenile justice system.

Here are the states and territories, and the requirements for which they were of compliance:

Arkansas: DSO, JR

Mississippi: DSO, JR

North Carolina: DSO

South Carolina: JR

Washington: DSO

Virgin Islands: DSO

Puerto Rico: SEP, JR

American Samoa: DMC

You can add Wyoming to the list of states that do not comply with the requirements, too, because it chooses not to participate in the JJDPA and thus forgoes the federal formula grants every year.

A few thoughts on what this all means:

1) Congrats again to Mississippi for being the standard-bearer on juvenile justice incompetence. One of our first pieces when we started the JJ Today blog wondered aloud why Mississippi, the poorest state in the country by nearly any measurement, would jeopardize a steady stream of federal dollars by failing to live up to a few standards.

A JJ activist in the South once speculated to us that it was an anti-fed thing for the state: You don’t get to tell us how to handle our juveniles, keep your money if you want.

Why not just drop out of participation like Wyoming? At least that state is forthright in its opposition, and some of the federal allotment that would go to the state goes instead to a Wyoming nonprofit that pushes for improvements to the state system. Mississippi appears just to  go along for the ride, and get the federal money when it can do so without making much effort. Pretty weasel-ish.

But watch out Mississippi! Arkansas might soon give you a run for your money when it comes to the worst system. One child advocate in the state, Dee Ann Newell, told us that the juvenile justice system is the shame of the state. While conducting research for a still on-going JJ project, the state rejected our request for information because Youth Today is “not a citizen of Arkansas.” Que? It isn’t exactly the reaction of a state with nothing to hide.

The National Center for Youth Law’s Pat Arthur, a long-time pit bull on juvenile justice, has her sights set on Arkansas, and the center recently got sizable grants from Atlantic Philanthropies and the Public Welfare Foundation to work on reform in that state and Wyoming.

2) Compliance appears to be a larger issue for the Southern states than it is for the rest of the nation. Four of the five out-of-compliance states for 2009 are among the 10 states that make up the Southern region for OJJDP.

Mississippi, as mentioned, is a given to be out of compliance. It’s possible the rest of the southern  states out of compliance got worse all of a sudden, but it appears more likely that the compliance monitoring in the area improved.

In North Carolina, the state found itself out of compliance on DSO for 2009. State JJ people were surprised because the number of detained status offenders had gone down from previous years,  State Advisory Group Chair Sandra Reid said.

Is it good that the scrutiny was turned up?

“Certainly,” Reid said. “We’re doing our best now…to come up with a strategic plan” to get back into compliance. “We don’t want kids sitting in inappropriate places.”

She believes that, under greater scrutiny from OJJDP, the fact that the state’s age of majority is 16 might have factored into the noncompliance finding. “I’m not trying to say we don’t have kids under16 [in detention], it’s an issue,” said Reid. But part of the problem, she thinks, was that state judges are free to lock up anybody 16 or over who is arrested for underage drinking because they are not adults when it comes to drinking, but are adults when it comes to crime.

It will be interesting to see if proponents of  increasing the age of majority in North Carolina can use this finding of noncompliance as leverage next legislative session. It makes the argument fiscal instead of just moral: the state is jeopardizing federal funds by keeping the age of majority so low.

3) All monitoring may not be created equal. If the age of majority factored into North Carolina being out of compliance on DSO, why is New York not out of compliance? It basically has the same rules.

“That’s a great question,” Reid said.

It’s possible that the monitor for New York’s region found that despite the low age of majority,  judges were not locking up status offenders. Or, it could be that the monitor in that region chose not to factor in status offenders over 15 years old because of the law. If that was the case, it would mean that two monitors made different interpretations of the same basic factor.

“I do wonder if it is being interpreted the same way from monitor to monitor,” Reid said. “Does our monitor do it the same way as another region? Are we looking at this consistently across board?”

4) The problems in each of the five states are with the two most serious compliance issues, locking up status offenders and jail removal. It isn’t that sight/sound and DMC aren’t important, too. But jail removal prevents the use of adult jails for juveniles with a few exceptions, and the sight/sound requirement sets conditions for those exceptions.

Race is obviously a major issue within the framework of juvenile justice, but everyone knows that the DMC requirement as currently written is pretty toothless. States have gotten away with “studying” DMC instead of acting on it for decades now, so being DMC compliant is no big feather in the cap. Addressing DSO and jail removal do more for racial justice in the system than most of the things states do to satisfy DMC.

It’s a bad time to discover that a handful of states have judges placing status offenders in juvenile detention centers and secure facilities. Legislators are working on a reauthorization of the JJDPA that would phase out the valid court order exception, the one loophole judges can now use to detain status offenders and remain JJDPA compliant. But in Arkansas, Mississippi, North Carolina and Washington, some judges don’t even bother with the loophole.

Scott Burns, executive director of the National District Attorneys Association, submitted the following testimony for the record at last week’s House hearing on reauthorization of the JJPDA (emphasis is his own):

“One can always find an outrageous anecdote to try and make a point, in every jurisdiction I am aware of juveniles are not incarcerated or taken to detention for status offenses such as truancy or runaways; juveniles are not placed into general population with adult offenders.”

Unless Burns meant “nearly half the South” when he said “outrageous anecdote,” you have to think he’s overstating his case a little.