NOTE: This article was updated on August 2 to reflect that a phase-out of the valid court order exception was stripped from the Senate bill. Text of the legislation shared with Youth Services Insider by bill leaders included the phase-out; it was removed by amendment on the floor.
It has been 15 years since Congress passed a reauthorization of the Juvenile Justice and Delinquency Prevention Act (JJDPA), the 1974 law that set up basic national standards for the treatment of juvenile offenders.
Tonight, the push to update JJDPA is as close to the president’s desk as it has ever been. After two years of failed attempts to “hotline” the bill through unanimous consent, the Senate, which is in session past its planned summer recess date, passed the JJDPA by voice vote tonight.
“The federal juvenile justice program helps states achieve these fundamental goals, but the program hasn’t been updated in more than a decade,” said Sen. Chuck Grassley (R-Iowa), co-author of the bill and the chairman of the Judiciary Committee. “Today’s action by the Senate to pass this bill is a significant step toward ensuring that the program is functioning as intended.”
The House has already passed a reauthorization bill, so the two must now be merged in a conference committee and passed by both chambers of Congress. If that happens, the bill will move to President Trump’s desk for signature or veto.
The House bill includes a phase-out of the valid court order (VCO) exception, the lone loophole in a federal prohibition on locking up youth for status offenses like running away, skipping school or missing a curfew. A judge can currently lock up a youth for those offenses if the court has issued the youth an order not to commit those transgressions.
This will surely be the biggest debate in the conference committee. The phase-out became a sticking point in the Senate in recent years because Sen. Tom Cotton (R-Ark.) opposed it, and refused to allow unanimous consent for passage if it was included. Last year, advocates worked with legislators to simply remove the exception so that the rest of JJDPA could pass.
But that prompted a hold from Sen. Rand Paul (R-Ky.), who said he wouldn’t support reauthorization without the phase out. Ultimately, last year’s effort at passage just ran out of time anyway.
This time around, Paul agreed to allow passage, we presume on the faith that a phase-out might be achieved in conference.
Sen. Sheldon Whitehouse (D-R.I.), who co-authored the reauthorization with Sen. Chuck Grassley, thanked Paul for standing down.
“He would have liked to have seen a stronger bill, as would we have, by the way,” Whitehouse said.
Under the House version, states will have three years to phase out use of the VCO exception, after which they would be subject to a finding of noncompliance with the federal standard on status offenders. Deinstitutionalization of Status Offenders is one of the four core requirements under JJPDA; 20 percent of a state’s federal funding under the act is tied to each of the requirements. It includes a one-year extension for states that can show hardship in moving toward a complete phase-out; the Senate bill does not.
VCO exception usage in the United States is pretty uneven. Half of the states either have banned the practice 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, the home state of Sen. Cotton, is one of those states, clocking in with 757 VCO detentions in fiscal 2013.
It was the National Council of Juvenile and Family Judges (NCJFCJ) that led a successful campaign to establish the VCO exception in 1980. The council reversed itself seven years ago, supporting a phase-out of the exception, a call it reiterated at its annual conference last week. From a resolution approved last month by the Council:
The NCJFCJ supports the development of consultation resources for those courts that have been using the valid court order exception to guide them in reforming their policies, programs, and practices regarding youth engaged in status offense behaviors.
Aside from the VCO exception, the conference committee will have to work out a difference in how the bills include actual dollar-sign authorizations.
The Senate version authorizes the entire act at $160 million for next year, and that rises to $169.8 million by 2022. That is meant to cover all aspects of the act, including Title II (the formula grants for compliance with the core requirements), incentive grants for delinquency prevention, and the Juvenile Accountability Block Grants (JABG) program.
The House version repeals JABG, and authorizes Title II at $76.1 million, going up to $79.6 million in 2022. It authorizes another $91.2 million for incentive grants, rising to $96.1 million by 2022.
The House also reconfigures that incentive program to include a basic version of the Youth PROMISE Act, a community-based violence prevention bill crafted years ago by Rep. Bobby Scott (D-Va.). Scott, the ranking minority member of the House Education and Workforce Committee, initially proposed it as a multi-billion dollar venture to help communities plan, and then implement and evaluate, their own approaches to reducing juvenile crime.