Report: OJJDP Gave States “Pass” on Racial Disparities Work for Years

The Justice Department’s Inspector General reported this week that the agency’s juvenile justice division was willfully ignoring compliance standards on disproportionate minority contact (DMC), failing to penalize states that were not doing enough to identify and assess racial disparities in their juvenile justice systems.

From 2013 through 2016, the IG said, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) provided a “pass” to all states when it comes to the DMC standard of the Juvenile Justice and Delinquency Prevention Act. Failure to comply with the DMC requirements should prompt a 20 percent cut to a state’s Title II formula grant.

From the report:

“Specifically, we found that for each year between FY 2013 and FY 2016 OJJDP awarded all states the DMC portion of their JJDP Act formula grant allotment regardless of compliance with regulatory requirements. We determined that the DMC pass resulted, in part, from guidance provided by OJP’s Office of General Counsel (OGC) in FY 2013 regarding the perceived litigation risks posed by a single e-mail the DMC Coordinator wrote about her concerns with the DMC compliance review process.”

It is rough news for OJJDP, which was publicly admonished recently for lax compliance standards. In 2015, the agency was called on the carpet for lax compliance policies by Sen. Chuck Grassley (R-Iowa), who was and is the chairman of the Senate Judiciary Committee.

This September, in an interview, Youth Services Insider asked Grassley if he thought things had improved.

“It’s too early for us to tell you that,” he said. “Hopefully we don’t have a hearing a year from now and find out something different.”

You can read the entire rundown of what happened by clicking here to access the inspector general’s report. It is a bizarre tale that puts on display the well-known friction between some OJJDP staffers and Obama-era Administrator Bob Listenbee, who joined the administration in 2013.

Following is an attempt at a Cliff’s Notes synopsis of what went down.

DMC was added as a fourth requirement in the Juvenile Justice and Delinquency Prevention Act (JJDPA) in 2002, in light of the growing evidence that African-American youth had disproportionate contact with the juvenile justice system at virtually every point.

The standard does not actually require states to achieve gains, in the sense of lower disparity. But they are required to make efforts to identify disparities through data collection, and then make intentional plans to address disparities.

DMC has long been viewed as a standard in need of greater teeth and gravity. James Bell, founder of the Burns Institute, once told Youth Services Insider that the loopholes for compliance were so big, “you could drive 18 tankers through it.”

OJJDP has been developing measurement tools and guidelines aimed at ensuring that states are making genuine efforts to improve. The Trump administration recently signed off on stricter guidelines for other JJDPA requirements proposed by the Obama Administration. But to the dismay of some advocates, the Obama administration punted on new regulations for DMC, leaving that to the Trump Justice Department.

Rewind to 2013, not long after Listenbee joined the administration. The “DMC Pass” began with a 2013 e-mail sent by OJJDP’s DMC coordinator, Andrea Coleman, to the Office of General Counsel (OGC). In the e-mail, Coleman noted that the standards for DMC compliance were being measured unevenly by various OJJDP state representatives.

Compliance determinations on DMC, she wrote, were “contingent upon who reviewed the plans.”

OGC decided that this memo, coming from the point person on DMC at the agency, meant that the previous year’s findings of noncompliance wouldn’t be defensible. Listenbee agreed. Apparently, nobody considered engaging in a second round of evaluation for those states to redetermine their compliance.

In 2014, it was decided that until a more coherent process for compliance was put in place, no state would be found out of compliance on the DMC standard. This would end up shielding noncompliance findings planned for four states: Illinois, Arkansas, South Carolina and Louisiana. In all, the Inspector General estimates that $529,407 went out to those states that might not have if they were found out of compliance.

As the report reflects, there is confusion about who signed off on the pass. OGC’s position is it assumed Listenbee made the call; Listenbee denies it; and everyone underneath Listenbee said he had to have known and approved of it.

Coleman, whose e-mail prompted the discussions that led to the pass, repeatedly opposed the imposition of the pass, according to the report.

Whoever made the call, the policy became that no state would be found out of compliance until OJJDP had finalized a more standardized way to measure compliance. And as of fiscal 2016, that had yet to occur.

The Inspector General report notes that OGC’s guidance that it couldn’t defend the noncompliance findings was the impetus for what happened next. While OGC was within its authority to issue that guidance, the report said, “we determined that OGC based its guidance on an unduly restrictive assessment of the import and impact of Coleman’s e-mail.”

After that, the miscommunication between OGC, Listenbee and OJJDP managers “resulted in the perceived need for a DMC pass that was not, in fact, necessary or consistent with the applicable regulatory requirements.”

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