Weekly Notes (Updated 4/11): OJJDP during a Gov’t Shutdown; OJJDP job and Senate confirmations; request to ban juveniles from adult lockup; and more

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UPDATE: Well, another last-minute deal averted a federal shutdown for now. The section immediately below was written in anticipation of one, and covers what happens at the Office of Juvenile Justice and Delinquency Prevention of a federal shutdown.

***After two near-misses, it looks like there will actually be a federal government shutdown, or a “funding hiatus” as some workers at government contracting companies have been instructed to call it. The money is just going on vacation; it needs a break!

What does a shutdown mean for the Office of Juvenile Justice and Delinquency Prevention? The agency failed to comment prior to publication time on how things would work during the shutdown, but one state juvenile justice leader told JJ Today that OJJDP held a conference call with states a few weeks ago to provide some details:

-There would be just two OJJDP staff manning the office as essential employees: Acting Administrator Jeff Slowikowski and Deputy Administrator for Programs Marilyn Roberts. All other OJJDP staff would be out until the government is open again.

That jibes with the memory of Shay Bilchik, who who served as administrator back in December of 1995, when the feds shut down for 27 days going into 1996.

“I remember being lonely,” said Bilchik. “I was manning the phones.”

-If a state or grantee has money coming to them from OJJDP, but the money has not been drawn down from the OJJDP account before the government shuts down, it would have to wait until the government re-opens before getting paid. Some states just take all of what is coming to them early in the fiscal year, and then refund any unspent dollars back to OJJDP later. Other states draw it down from the agency closer to the time it is actually going to be spent, and those states are the ones that could be affected by the shutdown.

“It was a really difficult time,” Bilchik recalls. “Staff felt vulnerable in the sense that is is was almost a statement that you are not essential. That the whole bureaucracy was not essential, but also personally, you can just go home.”

He couldn’t contact his staff to discuss work, Bilchik said, but he did make a lot of phone calls just to make sure staff was doing okay mentally and financially.  

In the event of a shutdown however, Office of Justice Programs spokeswoman Jessica Smith provided some information over e-mail about how OJP would function. From Smith:

I can’t speak directly for OJJDP, but here’s information on the Office of Justice Programs:

"42 of 688 employees on-board are excepted including 6 Presidentially Appointed authorized positions, which are not subject to furlough by statute.

Overall, I can tell you that: In the event of a government shutdown, the Department of Justice’s critical national security, law enforcement, and prison operations – operations that are necessary to safely protect life and property – will continue.  However, the Department will be forced to stop or significantly curtail an array of different activities and services that will have a national impact, including most civil litigation, community outreach to victims of crime, research, and the processing of grants."

***Day number 809 without a nominee from the Obama Administration to serve as administrator of the Office of Juvenile Justice and Delinquency Prevention. When the administration decides on an appointee, according to David Baumann of Main Justice, it could result in a quick movement from nominee to administrator.

According to Baumann’s March 30 article, Senate leadership from both parties made a gentlemen’s agreement at the beginning of the 112th Congress that, among other things, would mean certain presidential nominees would “no longer have to be confirmed.”

Legislation offered last week by Sens. Joe Lieberman (I-Conn.), Chuck Schumer (D-N.Y.), Lamar Alexander (R-Tenn.) and Susan Collins (R-Maine) would permanently exempt about 200 nominees from Senate confirmation. A breakdown of the exempted nominees is listed in this article from Canada Views (not sure why Canada cares about this, but we’re glad they do).  

Among the slots to which this would apply: OJJDP administrator.

Among some of the old guard of juvenile advocates – many of whom fought for OJJDP to exist, survive and matter – there is a sense that removing the confirmation requirement from the OJJDP will downgrade the entire federal role in juvenile justice. There are two sides to this coin:

Confirmed: Requiring Senate confirmation elevates the level of the OJJDP as a whole. It is an agency that Republican administrations have targeted for elimination in the past. All of the confirmed people at divisions of the Office of Justice Programs answer to the confirmed person that heads OJP (right now, it’s Laurie Robinson), and she, of course, answers to Attorney General Eric Holder. But because OJJDP is Senate-confirmed, there is some expectation that the person will have authority over what statements the agency makes and how it spends its discretionary money.

The primary downside is the confirmation process itself, and how brutal it has become. It took the Bush administration two years to get an OJJDP administrator confirmed and, as mentioned, we are now past the 800-day mark with the Obama administration without so much as a nominee.

Not confirmed: It would be much easier to get somebody into the slot early in an administration without requiring  Senate confirmation. The downside is that less prominent candidates would be attracted to a political slot with a lower profile, where they would almost certainly be a worker bee for the Senate-confirmed OJP appointee. On the other hand, if the White House wanted someone dynamic in the slot, it could put them in without the political theater that sometimes accompanies these appointments.

For example: let’s say folks at the administration and Justice wanted Vincent Schiraldi to lead OJJDP. He is a person who had a lot of support from the field, but more than one Beltway veteran told us that Schiraldi would have had a tough go of it during the confirmation process because he had a Washington Post columnist crusading against reforms of the system during his last two years heady the agency in Washington, D.C.

Did Schiraldi do a great job reforming D.C.? It would be fair to debate his legacy. But his experience there, and his time leading the Justice Policy Institute, certainly renders him a qualified candidate to lead OJJDP. In that hypothetical case, the nominee could have been put to work sooner without Senate confirmation.

***The Campaign for Youth Justice got 1,300 organizations to sign on to a letter urging the Department of Justice to ban the placement of juveniles in adult jails and prisons. The plan would require state systems to keep juveniles in juvenile facilities until they turn 18.

The campaign’s proposed ban comes in reference to rules regarding the Prison Rape Elimination Act, which was signed into law by President Bush in 2003 to address sexual violence behind bars. The administration has published proposed final rules for the act, and officials are now considering public comments it received about those rules.

It would be tough for a federal agency to actually ban that practice, although CFYJ Director of Research and Policy Neelum Arya said she is researching whether the Constitution would support the federal government imposing such a ban.

If the Justice Department were to act right now, it would have to tie enough federal money to the penalty for locking juveniles up in adult facilities. In other words: “you can lock juveniles up, but if you do we are withholding X percent of your federal justice money.”

Which pot of money would be involved and how much of that pot would a state lose for noncompliance? That is not addressed in the letter and it would be up to Justice officials to decide. Just a guess: If Justice wanted to do this, it would have to exact a pretty steep penalty on the states because it would cost a lot of money for some states to get in line with such a directive.

Take Maryland for example. The Baltimore juvenile detention center often has 100 youth with little or no extra space for more. So if Maryland would decide to move all its juveniles back into juvenile facilities, either the state or the city would have to build more juvenile detention space or make an extremely drastic shift, allowing to wait at home for adjudication or trial. The former would cost millions (know any states with any “millions” lying around right now). The latter is very tough to pull off politically, even assuming that it is the wisest course of action.

So if Justice holds out a 5 percent penalty on some small funding stream, a state in Maryland’s shoes might do the math and say: “Keep it.” This is one major reason why dozens of states are not going to adhere to the Adam Walsh Act by the July deadline: the penalty for not complying is lower than the costs involved in complying.

We don’t have any good data showing what states jail a high number of juveniles while they wait for adult trials; if you have some please send it to JJToday. As far as actual imprisonment of juveniles goes, recent numbers from the Bureau of Prisons shows there are ten states that account for about 70 percent of juveniles in adult prison: Florida, Connecticut, North Carolina, New York, Arizona, Texas, Michigan, Alabama, Nevada and Illinois.

North Carolina and New York make the list because both subject all 16- and 17-year-olds to the adult criminal system for any crime; Connecticut only recently upped its age threshold.

***The Interstate Commission for Juveniles (ICJ) recently published a Bench Book for Judges & Court Personnel. The commission is responsible for the transfer of supervision for juvenile offenders from one state to another, and for the return of juveniles who have absconded to another state.

The book includes an analysis of the compact’s legal foundation, describes sentencing considerations, establishes a process for returning juveniles who have run away from home and explains the liability and immunity considerations involved in the process.

Good timing, because a new iteration of the compact goes into effect soon, and every state has legislation in the pipeline to enact the new version. Well,  every state except Georgia.