When it comes to juvenile justice, the federal government’s growing interest in regulating standards, and its waning interest in rewarding states for meeting those standards, are two sides of a vise that could threaten to squeeze states out of participation in the Juvenile Justice and Delinquency Prevention Act (JJDPA).
That central component of JJPDA, as presently constituted, is an incentive program for living up to certain standards. All of the states and U.S. territories, with the exception of Wyoming, participate in JJPDA.
Each state gets 20 percent of its “Title II Formula Grant” just for participating, and the other 80 percent is contingent on fidelity to four core standards:
- Not detaining status offenders (DSO).
- Keeping most youth out of adult jails.
- Sight/sound separating them from adults in rare instances where they are in jail.
- Addressing disproportionate minority contact in the state.
There are two ways to make JJPDA standards tougher on states: add new standards, or change the existing ones. Both are currently on the table.
A long-overdue reauthorization of the JJDPA narrowly missed passage in the Senate last year, when Sen. Tom Cotton (R-Ark.) held up an attempt to move the bill with unanimous consent.
That bill would have sunsetted a major exception to the DSO standard called the valid court order exception (VCO), whereby judges can detain status offenders if said youth was court-ordered not to commit the status offense. Many juvenile justice systems have already banned the use of VCO; other systems would have to figure out other ways to handle youth who defy court orders that require them to go to school, not run away, or stay out past curfew.
The VCO phase-out is a new and meaningful expansion of the federal standards, and is without question the signature advance made by this bill. It is also the specific piece of the legislation that Cotton objected to in holding the reauthorization.
Meanwhile, the Justice Department last week issued proposed new rules that would make it tougher for states to comply with the standards that are already on the books. The new rules, which will be open for public comment until October, are likely a byproduct of two realities:
- A legislative reauthorization of JJPDA is long overdue, so the administration is taking what steps it can to polish a dusty bill.
- Sen. Charles Grassley, chair of the Senate Judiciary Committee, publicly admonished the Justice Department last year for lax compliance monitoring policies.
Under the new rules, states will need to monitor 100 percent of their juvenile facilities, each year, and live up to stronger litmus tests for compliance on the aforementioned standards.
You can click here for a full breakdown of how, but the headline is this: Right now a handful of states are out of compliance with some or all of JJDPA. Under these new rules, 48 of 50 state would be out of compliance.
While the administration and the Senate Judiciary attempt to make JJDPA tougher, legislators have significantly chopped down funding for the formula grant. The appropriations for formula grants totaled $75 million in fiscal 2010, and plummeted to $40 million by fiscal 2012. It has since ticked back up to $58 million in large part due to some patrons in the Senate; the House has zeroed out most juvenile justice appropriations for years.
The JJDPA reauthorization bill proposes to authorize actual dollar-amount authorizations for overall juvenile justice programs, which would be a first. The amount would start at $159 million, and rise to $172 million over five years.
How much of that goes to the JJDPA formula program is not specified in the bill. But the overall proposed funding is a fraction of the $423.6 million slated for juvenile justice programs in fiscal 2010.
In order to understand the potential impact of this, it’s important to understand the flow of formula grants. It varies from state to state, but most receive the money and dole it out to local courts and stakeholders to help fund programs aimed at preventing delinquency or addressing it. The state can keep some of it to pay for the actual compliance process; we have heard that the allotment does not fully pay for the monitoring process.
So the state patrols compliance, gets the reward, and trickles the money down to the local systems. So in the past five years, those systems have seen the amount they get shrink considerably, or disappear in some cases.
Some local systems will adhere to the core requirements of JJPDA just because they consider it sound, or at least ingrained, practice. But in a system where a judge or probation department might have an appetite for jailing truants, or kids who run away from group homes, they might be wondering what the point is to meeting federal standards for peanuts.
And that is before new rules that make compliance tougher, and a new federal standard that will force some systems to find pay for ways other than confinement to punish status offenders.
So far, no state has bailed on JJPDA participation, even as the funding spiraled downward. But a conflation of new compliance rules, new levels of compliance and more compliance will make states ponder the value of going through compliance monitoring.