Weekly Notes: Walsh compliance more attractive with low approps?; new stats on incarcerated juveniles; and more

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***Day 900 of the Obama administration and still no nominee to serve as administrator of the Office of Juvenile Justice and Delinquency Prevention.

There is no need to go into depth about the 2012 juvenile justice spending news from the House side; you can click here, here, and here for all the Youth Today coverage of that.

It’s unclear if the administration still has Massachusetts Division of Youth Services (DYS) Director Jane Tewksbury in mind for the job. The better question really is: Could she possibly still have Justice in mind?

If she got the job tomorrow, Tewksbury would take over an agency that:

  • Will be lowered in stature if/when Senate confirmation is stripped from the administrator position.
  • Is slated by the House appropriators to receive a fraction of its usual budget, and what’s left would largely go to mentoring programs and efforts to serve missing and exploited children. Meanwhile, the Massachusetts Senate Ways and Means Committee proposed $130 million for DYS in 2012. Arguably that state agency could have a bigger juvenile justice scope in 2012 than OJJDP.  

And, depending on how the presidential election goes, she might have just one year on the job.

***If the 2012 appropriation for Justice looks anything like the bill moved by the House Appropriations Committee this week, will compliance with the Adam Walsh Act of 2006 become more attractive to states? That argument can be made.

Under the act, states are required to create a state sex offender registry that is substantially compliant with the parameters of the national one, which means among other things that they have to include juveniles convicted of certain offenses. A number of states have voiced concerns about including juvenile offenders on a registry, especially for the lengths of time mandated in the Walsh Act guidelines.

The deadline for states to comply with the act is July 27, after which any noncompliant state will be penalized 10 percent of its Byrne Justice Assistance Grant (JAG) funding, which comes in a block grant from the Bureau of Justice Assistance.

Right now, seven states are in compliance. The Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) told Youth Today that it expects to announce more compliant states before the deadline.   

The appropriations bill approved by the House committee allocated $357 million to JAG grants, a steep drop from the $519 million in JAG money for 2010.

Had JAG been eliminated, it would have removed any incentive for states to comply with the Walsh act; except, of course, the desire to have a functional national registry to track serious sex offenders. And if all other funding is held constant, the drop in JAG funding will diminish the importance of complying with the law, especially since the startup costs for establishing a compliant registry will be significant (D.C. officials, who said they will not comply with Walsh this year, estimated it would have cost $700,000 for year one).

But that’s not the case. Consider the number of big money pots that state justice systems and police departments will lose under the House Appropriations proposal: Juvenile Accountability Block Grants, Community Oriented Policing Services (COPS), and the Byrne Discretionary and Byrne Competitive Grants.

When you factor in the absence of those grants, 10 percent of a JAG becomes more important, especially with justice-related funds drying up at the state level.

Look for a lot of states to take the penalty, and then apply to use the penalty funds to work on becoming compliant in 2012, an option that will only be afforded to them this year. Then, if a downsized federal juvenile justice program is the new normal, the states will weigh carefully the costs and benefits of setting up a Walsh-compliant registry.

The big X-factor could be litigation. At the last meeting of the Federal Advisory Council on Juvenile Justice in December, the SMART Office briefed delegates on the Walsh Act.

Ohio FACJJ representative Yeura Venters, speaking to the group after the briefing, congratulated the many states that had not complied. Ohio had complied, he said, and was promptly buried in court costs to defend the law against constitutional challenges.

“The 10 percent [penalty] will pale in comparison to the litigation costs,” Venters told the group.

Ohio’s legal battle over Walsh stemmed from the most constitutionally questionable aspect of the law: entry of offenders who were convicted before Walsh was passed onto the state registry. The state supreme court ruled yesterday that the retroactive application of the Walsh Act requirements violates the state constitution.

Assuming SMART announces more compliant states in the next two weeks, it is unclear if states will gain compliance without including the retroactive aspect. States may not fear the prospect of lawsuits as much if they can gain substantial compliance without having to place names on the new registry retroactively.

***Time to catch up on what has been happening with the Racial Justice Initiative (RJI) of TimeBanks USA, which is experimenting with a legal theory on how to litigate racial disparities in the juvenile justice system. The effort is funded by some big names in youth services philanthropy: W.K. Kellogg Foundation, Atlantic Philanthropies and the Annie E. Casey Foundation.

In a nutshell, this is the theory: If a system is made aware of a racial injustice, and is apprised of cheaper alternatives to the status quo that alleviate the injustice, then the system can be sued if it chooses to be deliberately indifferent to those alternatives.

RJI will host a colloquium in Providence, R.I. called “Dismantling Structural Racism in Foster Care & Juvenile Delinquency Systems: Homes, Not Institutions – Justice for the Next Generation.”

The title suggests that RJI loves to use punctuation marks, and has widened its lens to look at how to litigate both child welfare and juvenile justice.

Topics will include: “documenting the injuries for young people, their families and the broader community,” “highlighting the social and economic costs of maintaining the status quo,” and “showcasing what works to secure just outcomes for young people, their families and the broader community.”

Click here for more information on the event.

*** OJJDP released selected findings from the 2008 Juvenile Residential Facility Census, which is compiled for the agency by the National Center on Juvenile Justice. The headline here is that the number of offenders housed in juvenile facilities declined 12 percent between 2006 and 2008, from 92,093 to 81,015.

There are also significantly fewer facilities than there were in 2006. In 2006, there were 3,034 that could hold juveniles, and 2,658 of them actually had a juvenile in custody at the time. The 2008 census polled 2,860 facilities (down 6 percent), and 2,458 of them with juvenile residents (down 8 percent).

There are 200 fewer facilities housing juveniles in 2008 than there were in 2006, and almost all of the difference is accounted for by a decline in private facilities. There were only 16 fewer public facilities.

Click here to read selected findings from the 2008 census.