After Jodi Cohen’s excellent reporting this week, the Michigan Supreme Court will review a case in which a teenager from Oakland County was detained for not taking her virtual learning seriously during the pandemic. While that behavior put the girl in line with probably millions of other kids around the country, she was on probation and it angered the judge in her case.
It is a tragic miscarriage of justice, all the more so amid a pandemic that has traumatized the entire country. And perhaps the attention this case has gotten will lead to a discussion about the fact that locking kids up for missing school happens more than one would think – and the fact that recently, Congress was one senator’s support away from banning this practice under federal law.
The Juvenile Justice and Delinquency Prevention Act, which became law in 1974, sets core standards for juvenile justice systems around the country, and in exchange for adhering to those standards, distributes grants to states. One of those core standards is called the “Deinstitutionalization of Status Offenders.”
A status offense is basically anything a youth does that is afoul of the law only because they are minors. This includes things like running away from home or from foster care, failure to attend school (as was the case in the Michigan story), or buying or possessing alcohol.
The federal deinstitutionalization standard was meant to prohibit systems from locking kids up because they committed these offenses. It was a line in the sand about how severely these transgressions could be punished. But court leaders wanted a loophole that would free them up in the case of repeat offenders, and in the early 1980s, they got it in the form of what’s called the Valid Court Order exception, or a VCO.
If a youth ends up on probation, the judge who sets the terms of his or her probation can require them to refrain from some behavior that would constitute a status offense. So Johnny, as a term of his probation, must attend school every day and not skip or be truant.
If Johnny skips school, and the school reports it, then his status offense becomes a violation of his probation. And now, the judge can detain Johnny for a violation of the valid court order.
Since the time that the VCO exception was put in place, a massive consensus has been reached that it is a bad idea. The National Council of Juvenile and Family Court Judges, the group that led the charge for this exception, announced in 2010 that it supported its elimination. An analysis of its use in 2013 found half of the states had banned it or were not using it at all, and another 10 states used it a cumulative 410 times.
One state where judges made use of the VCO exception, per the 2013 assessment, is Arkansas. And that might be the reason why it still exists.
The Juvenile Justice and Delinquency Prevention Act was due for reauthorization by Congress in the late 2000s. The Senate Judiciary Committee made several attempts to move an update to the law that would give states three years to phase out use of the VCO exception, and eventually the House supported such a move as well. But Arkansas Sen. Tom Cotton, despite pleas from Republican leaders on Judiciary, refused to lift a hold on reauthorization until the VCO phase-out was removed from the law.
After years of attempts to move Cotton off that position, the juvenile justice law was finally updated, but did not phase out use of the exception. It does limit detentions for status offenses to seven days, and requires that systems document the factual basis for determining that a youth’s status offense has violated a court order.
But as is often the case, federal law is really as respected as the money attached to compliance with it, and the grants associated with federal juvenile justice standards have dwindled in the past decade. Eliminating the national valid court order exception would set precedent, and perhaps this case will prompt a fresh discussion about the prospect of that. But it will take state-level action to stifle the practice.