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Judges’ Council Support Elimination of Valid Court Order Exception

The board of the National Council of Juvenile and Family Court Judges (NCJFCJ) voted over the weekend to support elimination of the valid court order (VCO) exception to federal standards on status offenders.

The decision, which was voted on at a board of trustees’ meeting on March 14, is a major departure for the council, which remained neutral on the subject last year when the Senate Judiciary Committee approved a bill that would require states to phase out the exception over three years.

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

The use of a valid court order is, in theory, the only way for a judge to incarcerate status offenders, that is, 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.

If a youth faces a judge for such an offense, the judge can issue an order requiring the youth not to repeat the offending behavior or any other criminal activity. If the youth is arrested again, a judge can order incarceration in a juvenile facility because of violation of the court order.

The VCO exception has been a source of contention within the judges’ ranks for decades. Many judges believe it is necessary to use incarceration with status offenders, particularly runaways, to protect youths.

At a meeting of the NCJFCJ in the early 1980s, former Office of Juvenile Justice and Delinquency Prevention Administrator Ira Schwartz got into an argument about the exception with a judge that became so heated he 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.”

Other judges vehemently oppose the use of the exception. “Valid court orders are morally wrong and fiscally wrong,” Brian Huff, a juvenile judge from Birmingham, Ala, told a Congressional hearing on the practice last week.

The Juvenile Justice and Delinquency Prevention Act (JJDPA) requires that states prevent the detention of status offenders, or face a cut to its formula grants from the Office of Juvenile Justice and Delinquency Prevention. Still, in 2006 judges committed 3,635 status offenders to some form of residential placement, according to the Census of Juveniles in Residential Placement for that year. More than 700 of the status offenders were sent to secure lockups or boot camp/ranches. Judges detained 836 status offenders before they faced adjudication.

The number of youth placed in some form of residential placement for technical violations in 2006 was 15,316. Such technical violations usually included violation of a  court order stemming from a status offense.

Former OJJDP Administrator Shay Bilchik, speaking at a panel discussion held by Youth Today in November, pressed NCJFCJ Executive Director Mary Mentaberry – attending as a guest — on the VCO exception.

“I know this is an issue we struggle with,” Bilchik said, addressing Mentaberry from the podium. “But somehow we have to move to get rid of the VCO. We need to simply see it fade into the sunset. A new leader coming into OJJDP needs to have that conversation with the judges and others and Congress.”

President Barack Obama has yet to nominate an administrator to lead OJJDP, but a Senate bill to reauthorize the JJDPA, which the Senate Judiciary Committee passed in December 2009, would require states to phase out the use of VCO exception. The committee passed essentially the same bill in the summer of 2008, and at that time  NCJFCJ remained neutral on its elimination.

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.

Bilchik agreed. “When legislators look for key constituents” on juvenile justice, “they look at law enforcement, prosecutors and judges and say, ‘Guide us,’” Bilchik said.

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