Weekly Notes: Walsh Act, NYC sues NY, and finally a nominee for…Bureau of Justice Assistance

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***There is still no nominee to lead the Office of Juvenile Justice and Delinquency Prevention. Everything we have heard points to Massachusetts JJ boss Jane Tewksbury as the choice of the Justice Department, and she got some good ink this week with a Boston Globe story about how the Bay State is doing everything right. Tewksbury still needs to have the blessing of the White House staff, of course, so the waiting game continues.

Perhaps an encouraging sign: Obama nominated someone for the other vacant presidentially appointed position at the Office of Justice Programs. Denise E. O’Donnell is the pick to lead the Bureau of Justice Assistance, which has the vague mission of helping state and local governments with policy, programs and planning. A fair chunk of BJA’s Justice Assistance Grants to states are steered toward juvenile justice-related ventures (many of them by Congressional earmarks, although those might be on hiatus this year).

O’Donnell most recently served as the New York State Deputy Secretary for Public Safety, which is an amalgamation of 11 homeland security and justice agencies with a combined budget of $4.7 billion. She was the U.S. Attorney for the Western District of New York under former president Bill Clinton.

It’s hard to gauge with whom most juvenile advocates are more angry: the administration for not getting an OJJDP administrator confirmed, or Rep. George Miller (D-Calif.) for not even submitting a bill to reauthorize the Juvenile Justice and Delinquency Prevention Act while he had the chairmanship of the House Education and Labor Committee.

*** We wrote earlier this month about a extension of sorts that will be offered to states on implementing the Adam Walsh Act. You can read the whole piece here, but this is the gist: lots of states will not be in compliance with the law by July, and will lose 10 percent of their state block grant (“Byrne Grants”) from BJA as a penalty. But the legislation allows states to apply to use that penalized money for Walsh Act implementation efforts.

Rep. Lamar Smith (R-Texas) is expected to hold a hearing on why states are not implementing Walsh, and Linda Baldwin – director of the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) – will likely testify at any such hearing. Baldwin summed up the main concerns her office heard from states at a recent meeting: short-term costs of start-up, long-term costs of stepped-up monitoring, potential for costly litigation, and inclusion of juveniles on the national sex offender registry.

It seems to JJ Today that the offer Justice is making to the states flips Lamar Smith’s question around. If you can use your penalty money to pay for the work in 2011 instead of spending state money to do it now, why would you implement anytime soon?

Heard this from a Walsh Act observer, too: with the Republican-controlled House pushing hard to cut spending in 2011, BJA’s Byrne Grant program may soon get slashed or eliminated. That prospect, the observer said, would have to make states wonder how big a deal 10 percent of a dwindling pie really is?

***The Big Apple suing the Big Tree? This could get interesting.

Both New York State and New York City are trying to reform the way their respective juvenile justice systems function. The two are currently tied at the hip in one aspect: the city commits some of its juveniles to state-run facilities, most of which are nowhere near the city.

JJ reform is as much about re-prioritizing budgets as it is about anything else, because to effect change often requires a change in who is being paid to do the work. New York City believes it’s asking the state to do far less but is being asked to pay more.

Here’s the situation:

The state Office of Child and Family Services is required to share the cost of incarcerating juveniles with its counties, and each year OCFS sets a per diem rate that the counties must pay. So the rate, in theory, should represent the counties’ portion of the cost of incarcerating its juveniles in state facilities.

The number of juveniles in state facilities has dropped over the past decade from 2,300 to 700, and much of the decline is because of a decrease in juveniles sent from New York City.

The lawsuit, filed by city attorney Michael Cardozo in the state supreme court, alleges that despite the plummeting number of juveniles sent to OCFS, the per diem rate is as high as ever.

“OCFS regulation mandates that the per diem rates must be based upon the services actually provided in the preceding calendar year,” the lawsuit states. Instead, the “per diem rates charge localities not only for the actual cost of caring for youth, but for the cost of maintaining an irrationally large number of empty beds.”

To some extent, the lawsuit states, the rates “are set based on the cost of maintaining facilities that are entirely vacant or being phased out.”

Bottom line, OCFS has to give a year’s notice before it can close a facility, and until then cannot stop paying the staff of those facilities. So until January, OCFS is required to staff those facilities pretty much as if they were full of juveniles, even though at least one (the Tryon facility) is now completely devoid of wards.

The city’s position, as conveyed in this lawsuit: not our problem. It maintains it should only pay for the costs associated with what is provided.  

The key phrase in the lawsuit quote above, by the way, is “irrationally large.” It is common practice for a system to have more beds than it typically uses, but OCFS is now maintaining more empty beds than full ones. In addition, that is largely by their own design: OCFS Commissioner Gladys Carrion sent a letter to juvenile judges last year asking them not to place juveniles in state facilities.