Two Big Takeaways from Latest Failure to Pass Juvenile Justice Bill

An attempt to reauthorize the Juvenile Justice and Delinquency Prevention Act (JJDPA) has stalled, and its most controversial provision is the reason.

Senator Tom Cotton (R-Ark.) placed a hold on the JJDPA bill over his concern with a three-year phaseout of the valid court order (VCO), the one exception that allows a system to comply with federal standards while detaining youth for status offenses.

Roll Call‘s Jason Dick reported from the floor that after a heated exchange with bill co-sponsor Charles Grassley (R-Iowa), Cottons said, “I would like to take more time to discuss one specific provision of the bill relating to juvenile status offenders and secure confinement.”

Dick relayed that Cotton said he felt judges should have the option to place juvenile offenders in detention centers if they violate an order to take part in rehabilitation or other treatments.

Cotton’s hold ends yet another attempt to move reauthorization of the nation’s only federal standards on juvenile justice, which were initially passed in 1974. JJPDA has not been reauthorized since 2002.

“It is our hope that with some further education and outreach, we can get Senator Cotton on board with a yes vote, enabling all children who come in contact with the law to be safe and get the supports they need to successfully return home,” said Campaign for Youth Justice CEO Marcy Mistrett, whose organization is a major advocate for the reauthorization.

There are several updates made to federal law in the current bill, but none is bigger than the VCO phase-out that Cotton opposes. Here’s why.

In 1974, JJDPA standards prohibited the detention of any youth that committed a status offense, the list of transgressions that are only crimes if you are under 18. Among the most prevalent status offenses: truancy, running away from home, incorrigible behavior, breaking a curfew.

It’s not exactly a mandate from up high; judges could still theoretically do as they pleased. But now, federal money for juvenile justice was tied in part to finding other ways to handle status offenders.

In 1980, the National Council on Juvenile and Family Judges (NCJFCJ) led a successful campaign to establish the valid court order exception (VCO) to the rule. Now, under federal standards, a judges still could not detain a kid for committing a status offense. But he could issue that kid a court order full of things to live up to – attend school, see a therapist, don’t run away – and detain the youth for failing to meet those terms.

Thus a second status offense, in violation of that VCO, became a detainable transgression.

VCO usage is pretty uneven. Half of the states either ban VCO through state law, or reported no use of it in fiscal 2013. Another ten states, plus Washington, D.C., used it a cumulative 410 times to detain a youth.

Then there are 16 states in which the VCO was used it at least 100 times. Together, a VCO was used a total of 7,054 times as the underlying reason for a detention.

Arkansas is one of those states, clocking in with 757 VCO detentions in fiscal 2013.

Since 2008, the Senate Judiciary has three times marked up and approved JJDPA reauthorizations that would phase VCO out. In 2010, the notion earned the endorsement of the very body that helped create the exception: The National Council of Juvenile and Family Court Judges.

Youth Services Insider has a few thoughts on this latest stall on juvenile justice legislation.

First, it seems to us that the strategy of “hotlining” legislation – an effort to circumvent floor debate through unanimous consent – has not served youth policy well of late. In 2010, Rep. Bobby Scott (D-Va.) and Sen. Dianne Feinstein (D-Calif.) made a behind-the-scenes attempt to “hotline” a merger of their bills, which would have included Scott’s plan to fund youth development approaches to violence prevention.

The last-ditch effort failed when a senator placed a hold on the bill, which stops a hotline effort in its tracks.

The same thing happened a few years back to legislation to recalibrate adoption incentives and better track sex trafficking. Hotlined, then sunk by a single hold. [A similar bill was passed the next year.]

This time, JJDPA came into Thursday with holds by two Senators: Cotton and Lisa Murkowski (R-Alaska). Murkowski lifted hers; Cotton could not be persuaded.

Perhaps it’s time to put the hotline on hold and dial up some floor debate. Double pun!

Second observation: It would be easy to say that one Senator has derailed the reauthorization process, and that it’s a grave miscarriage of justice. That sentiment obfuscates the reality that while a national membership organization of judges has denounced the VCO exception, plenty of judges support it.

YSI doubts very highly that Sen. Cotton crafted his view of the VCO policy on his own. You can bet that the judges in his state have weighed in here. And cumulatively, those judges have used the VCO more frequently than all but two states (Kentucky and Washington).

Paul Kelly, a senior policy analyst for Arkansas Advocates for Children and Families, has pushed for elimination of the VCO exception in Arkansas for years. But he also concedes that Arkansas is not doing much to give judges options, either.

“We have very few community-based alternatives,” Kelly told YSI, “and they have been funded at the same level for 12 to 14 years.”

It would also be foolish to assume that only bad and/or lazy judges remained in the VCO camp. Kelly recalled an Arkansas Supreme Court justice that had helped usher in several juvenile justice reforms in recent years. When he brought up the idea of Arkansas ending its valid court order exception, he recalls, “She said ‘Oh, we’re not gonna do that.'”

In YSI‘s humble opinion, the missing link might be some coherent and easy-to-consume material for judges on what your last-ditch option is if it’s not detention. Something that addresses the following mindset:

“Okay, I can’t lock this kid up after he keeps skipping school. What’s my nuclear option? What are the graduated sanctions I can use as a status offender continues to defy me?”

It is only Sen. Cotton now, influenced by judges in his state. But if the phase-out is ever enacted, you can bet more judges will want that kind of information in a hurry as the deadline nears.

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