The Criminal Justice Reform That Could Actually Reach Obama’s Desk

In a year of inaction, a bill that changes the way we treat juveniles makes some headway.

by Eli Hager, The Marshall Project

September 22, 2016

Even though the year began with strong bipartisan support for federal sentencing reform, no major changes to the criminal justice system have made it out of Congress thanks to a combination of legislative gridlock, election-year rhetoric about rising crime in some cities, and Republican reluctance to hand President Obama a major victory.

But on Thursday, the House of Representatives quietly—and overwhelmingly passed what might be the most significant justice reform measure to reach Obama in his tenure.

The bill is an update of the Juvenile Justice and Delinquency Prevention Act, which has been expired since 2007. It would withhold federal funding from states that hold minors in adult jails. Unlike previous versions of the law, the new bill would extend that protection to juveniles who have been charged with adult crimes but are still awaiting trial.

The legislation would also ban states from locking up minors for so-called status offenses—things that are crimes only because of the age of the offender, such as truancy or breaking curfew. The law also would extend to cases in which minors are charged with only a status offense but jailed for violating a court order connected to the case. That previously had been an exception.

“I’m delighted, but also optimistic,” said Rep. Bobby Scott (D-Va.), a lead sponsor of the bill. “Getting a law passed on justice issues—one that doesn’t go backward—has been a challenge, to say the least. But we ought to be able to conform the House and Senate versions and get this to the president” before his time in office runs out.

The Senate version of the bill has made it out of committee and has almost unanimous support. But it still faces an obstacle in Sen. Tom Cotton (R-Ark.), who has singlehandedly blocked the measure from being put to a quick voice vote. Cotton’s home state, Arkansas, locks up minors for running away and other status offenses at a disproportionately high rate, Mother Jones reported this week.

A spokeswoman said Cotton is concerned the proposed law would erode the power of the bench. “It is prudent to allow states to determine if their judges—often in consultation with the parents and attorneys involved—should have the discretion to order secure confinement as a last-resort option,” Cotton spokeswoman Caroline Rabbitt said.

Sens. Charles Grassley (R-Iowa) and Sheldon Whitehouse (D-R.I.), the lead proponents of the bill on the Senate side, have been trying for months to reach a compromise with Cotton. If their effort fails, it would fall to Majority Leader Mitch McConnell (R-Ky.) to take up precious floor time—in a season devoted to reaching a spending deal and funding the fight against the Zika virus—with a debate and vote on the legislation.

“Since it so closely resembles the Senate bill, Chairman Grassley is optimistic that it can be passed in the Senate,” said spokeswoman Beth Levine.

Either way, the bill’s passage through at least one chamber comes at a surprising time: right before the election. From the heated Republican primary race through his doomsday speech at the party’s national convention in July, Donald Trump has made the specter of rising crime a prominent issue in his campaign—and the chances of substantive criminal justice reform at the federal level have faltered accordingly.

But despite the status of many bills to reform the adult system, the juvenile bill still enjoys broad bipartisan support.

“It took this long more out of inertia than opposition,” Scott said. “We kept bringing it up—‘juvenile justice, juvenile justice’—and I think we just wore them down.”

As reforms go, the changes are not radical.

“This is the floor, the minimum of how we should treat children,” said Marcy Mistrett, the CEO of the Campaign for Youth Justice, which has been lobbying Congress to pass the bill since 2007.

The JJDPA law has existed in various forms since 1974 and provides federal grants to states on the condition they adhere to several “core principles” for detaining youth: not in adult facilities, not for status offenses, and not in ways that impact different racial groups differently. But over time, loopholes have been added to the legislation, all of which the new, reauthorized bill aims to close.

States that do not want to comply with the new law, should it pass, could choose to forgo a portion of their federal funding, a modest $92 million per year to be shared across the country—assuming Congress agrees to appropriate the money. The bill also does not contain a key goal for reformers of the juvenile system: restricting the use of solitary confinement in youth prisons.

But the bill would require states to collect new data on racial disparities at every stage of the juvenile system and to present the federal government with a concrete plan for how they will address those divides. It would also require states to ensure that academic credits and transcripts are transferred, in a timely fashion, between schools and juvenile-detention facilities, and that children get full credit toward graduation for any schoolwork they completed while incarcerated.

Finally, the legislation would ban the shackling of pregnant girls, provide funding for delinquency prevention and gang-intervention programs, and require states to report data on juvenile recidivism rates and other measures.



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4 Responses to “maybe”

  1. 1 Frank Manning
    September 24, 2016 at 5:00 pm

    The glacial pace of juvenile justice reform, and the tiny, often lurching, steps forward, try my patience to no end. At least this bill will finally eliminate one of my pet peeves about juvenile justice in my home state.

    Washington State is far more progressive than most U.S. states in dealing with juveniles who commit crimes. We recently closed one of our remaining locked juvenile rehabilitation facilities, and we no longer incarcerate kids who break the law in nonviolent ways. We rely heavily on community probation, and strive to keep as many of our troubled kids as possible in society and in their own homes (if they are safe and crime-free environments for the children). Yet we lead the nation in jailing kids for status offenses. This new federal bill will abolish that practice.

    Almost all of the kids who get sent to juvenile detention for status offenses in Washington are chronic truants who have been ordered by a court to go to school but willfully have not done so. They are actually jailed for contempt of court. It’s usually for three days, and standard practice is to make them write an essay for the judge on their experience and their future intents.

    Doesn’t sound too bad, right? But don’t forget the trauma. Virtually all of these kids have never committed a “real” crime. They are arrested, handcuffed, taken to detention. There they must undergo the humiliation of an intake strip search, and find themselves under the implied threat of state-sanctioned physical violence if they do not comply with every order from their jailers. Then they are housed in a unit with other offenders, many of whom have committed violent crimes such as assault and rape. A lot of the kids in juvie are members of street gangs, “baby gangbangers” who carry on their rivalries and beefs with other gangs right there in lockup. So our terrified little truants get to see gang wars waged only feet from them. How motivating is that!

    Is this really want we want to do to kids who skip school? This is yet another example of the good intentions that pave the road to hell. Our problem with status offenses won’t be solved until we repeal our idiotic truancy law known as Becca’s Bill. Here again we have sincere liberals stupidly attempting to use the blunt instrument of the law to correct what they perceive to be a “problem behavior” in children. They succeed only in inflicting even more massive damage on kids who so desperately need our help, understanding, and empathy.

  2. 2 Willow54
    September 25, 2016 at 6:53 am

    I’m with you Frank. When I hear these stories from the US it constantly amazes me how these stupid things can be allowed to happen. In the UK we have no such reaction to juvenile so-called status offences. I don’t even think there is such a term in UK juvenile circles. Truanting, for example, is always dealt with by the intervention of the school, in conjunction with parents. There would be no question here, of the child ever appearing in a court of law over truanting, and I cannot contemplate any situation here where a child could find themselves in jail over it. The worst that might happen would be the child being declared “vulnerable” and acquiring a social worker who would monitor and support them back into a regular pattern of attendance at school as well as encouraging the parents to take classes to improve their interaction with the child.

    As far as other so-called status offences, such as defying a court order to live with one parent in terms of a custody battle, once again this doesn’t exist in the UK. The child would never be jailed for wanting to live with the parent who hadn’t been favoured in the court custody order. Again, the worst that might happen would be that the child could be placed temporarily with a foster family while the matter returned to court for a different decision based on the child’s wishes and the ability of the parents to provide what the child protection social work department decided were the child’s needs and what was in their best interests.

    The thing that overwhelmingly frustrates me about all of this is that it seems the US politicians are more interested in maintaining face and scoring political points off one another than actually dealing with the issues, even when they seem to be easily solvable, and that is a travesty of justice any way you look at it.

  3. 3 Frank Manning
    September 25, 2016 at 4:18 pm

    Thanks again for your kind words, Willow. When you look over here and see the idiocies in our juvenile justice system, try not to lump us all into “the US.” Juvenile justice is a state and local matter—so it’s even worse, we have 50 separate sets of laws and rules for our kids. Some are amazingly progressive, others utterly barbaric.

    I wish you were right, but sadly my state’s truancy law did not result from “politicians more interested in maintaining face and scoring political points off one another.” It’s quite the opposite actually. Our Becca Bill is named for a young teenager who was very rebellious and often skipped school to hang out and party with older friends. Her parents tried everything to get her to attend school—bribes, punishments, even some therapy. In desperation they had her declared a “person in need of supervision”, similar to your “vulnerable child.” This triggered a respectable intervention by both social services and the school district. All to no avail. One day she ran away—and was later found raped and strangled. Her parents publicized her story, and a bipartisan group of legislators crafted what they thought would be a good way to make sure Becca’s tragedy would not befall any other family here. It was a noble effort and what they sincerely believed was a genuinely liberal enlightened approach to protecting adolescents from their own immature, often error prone, decision making. Jailing truants was seen as a last resort, an ultimate sanction, more to scare them into compliance than to actually lock them up. Many juvenile judges, however, jumped right to that last resort instead of going through the long process of social services supervision and harassment. Gotta clear them dockets, you know!

    Our lobbying efforts initially aimed at repealing the Becca Bill. But the legislators could not admit they may have made a mistake. So now we are focusing on eliminating the jailing option, taking that discretion away from the judges. This new federal bill before Congress will accomplish that same goal. Either way we should soon stop jailing truants in Washington State!

    I have seen firsthand the result of excess jailing of kids for status offenses. One girl I worked with at the reform school had been sent to juvenile detention at least once a month over three years for things like running away, drinking beer, smoking pot, riding in cars with boys. She was extremely intelligent—at a college reading level and doing pre-calculus at 15. She also obviously had a very troubled and difficult family life. When I asked her if she hated being sent to juvie, she replied “Nah, that’s my home away from home.” That simple response has haunted me ever since. How can any child possibly be so familiar and comfortable with a jail as to call it “home”?

  4. 4 Willow54
    September 26, 2016 at 4:08 am

    Thanks for the explanation of the systems there Frank. I guess it must seem to outsiders to be a total minefield when there are separate laws and outcomes in this fashion.

    I also get that some juveniles simply don’t always respond to the “soft” options in the way that adults would like. By no means does the UK pretend to have all the answers. We have similar intractable problems here too but we seem to spend more time exploring all the options that don’t involve locking juveniles up as opposed to the rush that you explained to “deal with the dockets” in the time honoured way.

    Yes, it is very sad when some young people have such low self esteem and such a sense of hopelessness that they would rather be incarcerated than face the realities of their world. A young lad who I dealt with a number of years ago also dumbfounded me in a similar way. A persistent truant living in a dysfunctional home blighted by poverty who had graduated to petty theft and burglary told me he wanted to be sent to the local juvenile detention centre because they took their inmates to a swimming pool once a week, the very same pool that was denied to him because neither he nor his family could afford to pay the entry price.

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