Tom Cotton lone holdout on juvenile justice reform bill

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The following op-ed was co-authored by Jonathan Matt, a technology policy research assistant at the R Street Institute. 


Sen. Tom Cotton, R-Ark., has not been one to shy away from a hardline stance on criminal justice issues. In a speech last year, Cotton claimed the United States, home to more than 20 percent of the world’s prison population, has “an under-incarceration problem.” But such views may be out of touch even with his own constituents in Arkansas.

In 1974, the United States instituted new federal rules for the juvenile criminal justice system with passage of the Juvenile Justice and Delinquency Prevention Act (JJDPA). Notably, the law provided grant incentives for states to comply with the act’s monitoring and compliance requirements. It led to the creation of the Office of Juvenile Justice and Delinquency Prevention to oversee state programs and ensure compliance with law’s core requirements. One key provision ensured states stopped detaining youth offenders who committed so-called “status offenses” – crimes that only apply to children, such as truancy or underage alcohol consumption.

However, the JJDPA expired in 2007, and recent bipartisan efforts to pass a reauthorization bill have failed because of the opposition of one senator—Tom Cotton.

In an age of partisan politics and extreme polarization, it is rare to see a significant issue enjoy bipartisan support as strong as exists for JJDPA reauthorization. It is also uncommon to see a bill with such broad support fail to pass. As recently as April, the Senate attempted to pass a reauthorization bill using the “unanimous consent” procedure that speeds the proceedings. For the second time in two years, Cotton was the bill’s sole opponent.

The bill could go to a full vote on the floor of the Senate, assuming Majority Leader Mitch McConnell, R-Ky., places it on the calendar. However, this raises the risk that it becomes bogged down in the slow process of amendments and floor debates.

The main objection that Cotton raises to reauthorization is that the bill would phase out the valid court order (VCO) exception, which allows state and local justice systems to detain status offenders where a judge issues a specific order to do so. The VCO exception, Cotton argues, gives state and local courts important flexibility to deal with juvenile offenders. In practice, the VCO too frequently is applied unjustly, as juvenile offenders receive very different treatment depending on where they live, and such adjudications come at tremendously high costs to the state.

Nearly half the states have discontinued use of the VCO exception, and most that do use it issue fewer than 150 orders a year. There are three big exceptions. In 2014, Washington State used it 2,705 times and Kentucky used it 1,048 times. The third exception is Cotton’s home state of Arkansas, which used it 747 times, down from 1,464 times in 2012. Together, these three states account for more than 60 percent of the total uses of the VCO exception nationwide. But Kentucky recently passed legislation prohibiting the detention of status offenders and Arkansas’ usage has continued to drop.

Cotton’s stringent opposition to loosening criminal justice laws, specifically for juvenile offenders, is not only out of step with the views of national juvenile justice experts, but also his own constituents. In Arkansas, a state with one of the fastest-growing prison populations in the country, lawmakers have begun to recognize the need for a change in policy. On the state level, the legislature has been working on a reform bill designed to shrink the number of people who go to jail, while the state’s junior U.S. senator is intent to increase the prison population. In fact, more than half the state’s counties no longer use the VCO exception, and the vast majority of uses come from only a few counties.

What makes the issue important is that a growing body of research demonstrates juvenile incarceration is not an effective way to prevent future crime. Recent studies have indicated that incarcerating juvenile offenders creates worse outcomes in the long run. Youth detention tends to deprive children of education, impinge their ability to find jobs and negatively impact their mental health. Thus, it is not surprising that juvenile offenders often return to crime in the future.

Since the JJDPA’s authorization expired in 2007, much of the funding for the programs it supported has dried up. Last month, the U.S. House again passed a bill that would reauthorize the JJDPA and protect status offenders from unnecessary incarceration. The Senate has the opportunity to act on this issue by allowing the bill to go to the floor for a vote. Ending the VCO is just good policy, supported by a motley crew within the criminal justice world that includes lawmakers, police, judges, prosecutors, defense attorneys, faith-based organizations and, yes, the people of Arkansas.

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