Note: This story was corrected on June 29. See comments below article for more information.
Juvenile Justice and Delinquency Prevention Act monitors issued seven findings of noncompliance to states in 2009, more than in any year since 2000. All of them pertained to the two most serious requirements, and most were in the three states that are frequent compliance offenders: Mississippi, South Carolina and Washington.
In recent years, most states consistently have stayed faithful to the tenets of the act, which is long overdue for reauthorization. But the carrots and sticks of JJDPA appear to have no effect on the small number of states who are outside the norm.
Four aspects of juvenile justice systems must be maintained by states for them to be considered compliant participants in the JJDPA. States that are completely compliant with the act are given the full share of their formula funds from the Office of Juvenile Justice and Delinquency Prevention (OJJDP), an amount that is based on how much Congress appropriates each year and the size of each state’s youth population.
OJJDP can withhold 20 percent of the formula funds destined for a state for each finding of noncompliance. Since 2002, that penalty has been applied in the fiscal year after the finding of noncompliance. So a state that is out of compliance with one of the four core requirements in 2009, the finding of that would occur in 2010 and would lose 20 percent of its funding for 2011.
The four core requirements are:
Deinstitutionalization of Status Offenders: Juvenile judges cannot incarcerate juveniles who are found to have committed status offenses, a litany of actions that would not be considered crimes if the offenders were adults (truancy, incorrigibility, running away, etc.).
Jail Removal: Incarcerated juveniles cannot be locked up or held in adult jails or prisons, with rare exceptions.
Sight and Sound Separation: 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: States must attempt to assess and address differences in the ways minority youth are treated by the juvenile justice system.
Compliance monitors at state juvenile justice agencies issue a compliance report once a year to OJJDP’s State Relations and Assistance Division. A division compliance specialist is assigned to each region, and that person works with OJJDP Compliance Coordinator Elissa Rumsey to determine the compliance status of states in that specific region. Every five years, OJJDP conducts an audit to make sure the compliance information is gathered correctly.
Compliance records are public information, but OJJDP makes little effort to publicize them in a timely fashion; they are supposed to be included in the appendix of annual reports issued by the agency, but those reports may or may not be issued. OJJDP has published six annual reports since 2000, so compliance information for 2001, 2004 and 2007 is not readily available to the public.
In 2009, four states were found to be out of compliance with the status offender requirements: Arkansas, Mississippi, North Carolina and Washington. Three states were out of compliance on jail removal: Arkansas, Mississippi and South Carolina.
No state was out of compliance with sight and sound separation or disproportionate minority contact in 2009. The former requirement only applies to the treatment of juveniles in the rare instances that are not covered by jail removal. The latter requirement deals with an issue that has historically plagued juvenile justice, but the requirement itself has long been criticized because of how easy it is to meet.
The findings of states out of compliance come as Congress works slowly toward reauthorization of the JJDPA. The current version of the bill on the Senate side – which the Senate Judiciary Committee approved last year – would phase out the valid court order exception, the one loophole judges can now use to detain status offenders and remain JJDPA compliant.
Newcomers to noncompliance
Last year was the first time Arkansas has been out of compliance this decade, but concern over the state’s system is clearly mounting. One child advocate in the state, Dee Ann Newell of the National Partnership for Children of Incarcerated Parents, said the juvenile justice system is the “shame of the state.”
The Oakland, Calif.-based National Center for Youth Law recently received sizable grants from Atlantic Philanthropies and the Public Welfare Foundation to work on reform in Arkansas and in Wyoming, which is the only state that does not participate in the JJDPA. The center's efforts in both states are led by veteran juvenile justice attorney Pat Arthur.
Juvenile justice stakeholders in North Carolina were surprised to find their state out of compliance on status offenders in 2009, because the number of detained status offenders had gone down from previous years, said State Advisory Group Chairwoman Sandra Reid.
“We’re doing our best now … to come up with a strategic plan” to get back into compliance, Reid said. “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 state judges are free to lock up anyone 16 or over who is arrested for underage drinking. They are not adults when it comes to drinking, but they are adults when it comes to crime.
Youth Today tallied noncompliance findings since 2000 on status offenders and jail removal, using the annual reports and information for 2009 provided by OJJDP.
There have been 38 findings of noncompliance since 2000. Of those, 23 have been issued to three states: Mississippi, South Carolina and Washington.
Two of those states have specific impediments to address if they wish to become compliant. Washington passed legislation called Becca’s Law in 1995, which created secure residential centers that law enforcement can use to hold runaway youth. The centers can hold youths for up to five days while attempting to assess them and reunify them with their families.
Because the centers securely detain youths who are guilty only of running away (a status offense), their use is a perpetual violation of the status offender requirement.
South Carolina has been out of compliance with the jail removal standard since 2005, and Department of Juvenile Justice Director Bill Byars said it all comes down to one place: Greenville County, the most populous county in the state.
The closest detention center is about two hours away from the county, Byars said, so the county will only transport a juvenile if the intention is to keep him or her for a considerable amount of time.
If it is only going to be a day or two, the county holds the juvenile in a wing of the adult jail, separate from the adults incarcerated there. This practice frequently violates the jail removal requirement, which allows the secure detention of juveniles in adult facilities for only six hours.
Greenville’s practice costs the state’s Department of Juvenile Justice about $250,000 each year.
“I would love for them to come into compliance,” Byars said, but there is little he can do about it. “It’s not a state-run facility.”
Mississippi appears to have more widespread problems than the other two noncompliant states. By most standards, it is the poorest state, and yet it has passed up at least half of its federal formula dollars for years by failing to comply with JJDPA. Mississippi has been noncompliant on both jail removal and status offenders since 2005. In 2005 and 2006, it was also out of compliance on disproportionate minority contact, making it the only state since 2002 to fail that requirement.
Mississippi’s compliance monitor, Zach Pattie, has impressed OJJDP leadership with recent reports from the state on its status and plans for improvement. But “it will be a few years” before the state is actually found compliant on status offenders or jail removal, Pattie said.