As Congress continues to be deeply divided on a range of issues, from health care to tax reform, it’s time for members of both chambers to come together on an issue on which there is general consensus: the need to reform our juvenile-justice system.
Momentum for reform seemed promising heading into August, but as we move deeper into the fall, there is concern that more contentious issues could drown out efforts to get Juvenile Justice and Delinquency Prevention Act (JJDPA) reauthorization over the finish line. Moreover, some of the hurdles the legislation has faced in the past continue to loom in the background.
First passed in 1974, the JJDPA set up basic federal standards for the treatment of juvenile offenders. The law includes measures that require minors be separated by “sight and sound” from adult offenders during any detention. The rules also call on states to collect data on observed racial and ethnic disparities in their juvenile-justice systems. Last updated in 2002, the law was allowed to lapse in 2007 and reauthorization attempts in the years since have failed repeatedly.
Earlier this year, the House and the Senate passed H.R. 1809 and S. 860, respectively, to reauthorize JJDPA. Progress in the Senate was the most notable development, since previous reauthorization attempts faced repeated complications. Immediately following news of S. 860’s passage, House leaders confirmed their commitment to develop a final reauthorization bill.
A lingering sticking point remains the question of whether the final legislation would phase out exceptions for “valid court orders,” or VCOs. VCOs allow state and local systems to detain youth for committing “status offenses” when a judge issues a specific order to do so. Status offenses are those crimes and misdemeanors committed by minors that would not qualify as offenses if the offender was an adult. Examples include truancy, running away from home, curfew violations and underage consumption of alcohol or tobacco. These acts are only considered violations because of a person’s status as a minor.
At its outset, the JJDPA prohibited incarceration of status offenders, with the VCO exception introduced in 1984 to accommodate rare and occasional exceptions to the rule. Last year, Sen. Tom Cotton, R-Ark., held the bill last year over an objection to language that would phase out that VCO exception. That, in turn, prompted a hold from Sen. Rand Paul, R-Ky., who pledged he would not support any bill without the phase-out.
It’s important to note that states differ markedly in how they address status offenses. Some turn to statewide networks of nonprofit organizations or other community alternatives to help families in crisis. In other states, county systems, juvenile courts and juvenile facilities may be flooded with status-offender cases. Children and families who are forced to rely on overcrowded and broken state systems do not receive the necessary attention better provided by community-based social services. Worse yet, children incarcerated for status offenses may be exposed to other juveniles held in correctional facilities for serious criminal acts, which can put a nonviolent child in harm’s way or expose him or her to a criminal atmosphere.
JJDPA currently enjoys exceptionally strong bipartisan support, but Cotton continues to oppose the VCO phase-out, which makes it impossible to pass the bill under expedited “unanimous consent” rules. The senator believes the VCO exception provides state and local courts needed flexibility to deal with juvenile offenders.
However, not only have nearly half the states discontinued use of the exception, but even Cotton’s home state of Arkansas is curbing its use of the VCO exception, with more than half the state’s counties ceasing use altogether. Arkansas does remain one of three states that together account for more than 60 percent of the total uses of the VCO exception in the United States. But given Arkansas’ extraordinary prison growth in recent years, state lawmakers have signaled they understand the need for policy change, even if Cotton does not.
If Congress chooses to appease Sen. Cotton, it will mean ignoring studies demonstrating the detrimental effects of incarcerating children for status offenses. The JJDPA has served a crucial role in the juvenile justice system and Congress should reauthorize it immediately.