Amid Pandemic, Federal Guidance Has Been No ‘Wholesale Release’ of Juveniles

Last week, Youth Services Insider looked at the fresh round of numbers from the Annie E. Casey Foundation’s juvenile detention surveys, which found that during the coronavirus pandemic, admissions to those facilities continue to be low while releases from them have slowed considerably

That youth are being released less during this time is of consternation to the many juvenile justice advocates who have been pushing for widespread releases from detention and incarceration facilities, where close proximity and in some cases unsanitary conditions offer prime circumstances for the spread of COVID-19. But it is actually in line with the advice of the top federal agency in this area at the Department of Justice. 

OJJDP’s May 29 guidance cautioned against releasing youth as a result of the coronavirus.

The Office of Juvenile Justice and Delinquency Prevention (OJJDP) issued a guidance memo to state officials and agencies in late May suggesting that sending youth home because of the pandemic was unnecessary. 

“Even in the presence of COVID-19, the juvenile justice system has an obligation to protect the public and the juveniles in its care,” the memo said. “The relatively small number of coronavirus cases reported in juvenile facilities does not support the wholesale release of juvenile offenders into communities.”

Moreover, it argues, they might be safer in juvenile facilities than in the community. “Facilities are well-equipped to help youth practice social distancing, good hygiene and other positive health habits that can maintain their well-being and reduce the risk of contracting COVID-19,” the guidance said. Los Angeles probation leaders made a similar argument in mid-May when legal advocates sued in state court for the release of youth in county facilities. 

“Probation’s juvenile facilities may be one of the safest places for youth to shelter-in-place,” the department stated to the court, “because it is COVID-19 free.” A week earlier, the department had confirmed that teens in two county facilities had tested positive, as had nine staff.

The memo cites figures from “early May 2020” that 229 youth and 352 staff had tested positive for COVID-19. The numbers were not obtained internally by the agency though – it cited the work of Josh Rovner, senior advocacy associate for The Sentencing Project, who has done yeoman’s work piecing together an estimate from media searches, leads sent his way and inquiries to state and local agencies. 

Rovner said the numbers OJJDP cited were wrong at the time – the agency used a lower total than was true upon release of the memo on May 29 – and the total has definitely escalated in the weeks since Memorial Day weekend. As of yesterday, Rovner has tallied 1,059 incarcerated youth and 1,151 staff with positive tests – combined, that is more confirmed cases than there are in Hawaii, Vermont, Alaska, Montana or Wyoming. 

To date, no incarcerated youth is known to have died from the coronavirus, but at least three staff have died, according to Rovner’s research. 

Rovner called the agency’s use of his figures “preposterous,” and said it “should be conducting its own research, surveying states and counties about the prevalence of COVID-19 in their facilities, and urging preventative measures, particularly release, to bend the curve.” 

OJJDP told Youth Services Insider in an email that the guidance was issued at the request of three Senate Judiciary Committee members – Joni Ernst (R-Iowa), Chuck Grassley (R-Iowa) and Sheldon Whitehouse (D-R.I.). 

In addition, the federal guidance says that “states are in the best position to determine what COVID-19 risk reduction strategies are appropriate for their court systems, and most states have begun to implement them.” Guidance from the CDC, state and local regulations, and emergency orders “have already transformed operations in juvenile facilities.”

The rising number of cases inside facilities has not changed the federal agency’s position. 

“The considerations for a state are appropriate for any numbers of cases,” said Justice Department spokesperson Tannyr Watkins, in the June email to Youth Services Insider

The same week that OJJDP issued its guidance, a group of 16 Democratic senators sent the agency’s administrator, Caren Harp, a letter asking for more information about the nationwide response to coronavirus. 

The senators asked for a response by June 12, but the agency has not yet responded to the letter, according to a spokesperson for Sen. Ron Wyden (D-Ore.).

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