With less than 100 days remaining on the 114th Congress’ legislative calendar, time is running out for Congress to come together to protect our children and our communities.
Passage of S 1169, a bill to reauthorize the Juvenile Justice and Delinquency Prevention Act (JJDPA) should be a no-brainer. The legislation includes common-sense updates like stopping the shackling of incarcerated girls while they are giving birth, and eliminating exceptions that currently permit our children to be locked up for behaviors like skipping school.
The bill, which was first passed more than 40 years ago with broad support from Republicans, Democrats and an array of child-serving and community organizations, is up for reauthorization now, and would incorporate a decade’s worth of new research into the existing law.
The broad support the JJDPA had in the 1970s still exists today. Nearly 5,000 law enforcement officers from across the country have signed on in support, as have the National Council of Juvenile and Family Court Judges, the National District Attorneys Association, 44 faith-based organizations and more than 100 national and state-based child advocacy organizations.
In February, the legislation was sent to the Senate for consideration. The bill’s sponsors, Sen. Charles E. Grassley, R-Iowa, and Sen. Sheldon Whitehouse, D-Rhode Island, were confident that it would prove uncontroversial. The pair submitted the bill for approval through a process known as unanimous consent.
Much as it sounds, unanimous consent requires that all members of the Senate agree to a legislative proposal in order for it to earn approval. Ninety-nine senators supported the bill’s passage. One senator alone objected to S 1169 — Sen. Tom Cotton, R-Arkansas, who has also opposed the Senate’s criminal justice reform proposal, S 2123.
In particular, Sen. Cotton said he disliked S 1169’s phaseout of the so-called valid court order (VCO) exception. The VCO exception was added to the JJDPA in the 1980s. The measure permits judges to incarcerate children in need of services for behaviors such as missing curfew, running away from home and skipping school, if the behavior violates a previous order from the court. S 1169 requires states to stop using the VCO exception within three years of the law’s passage.
This morning, Cotton spoke before a group at the Hudson Institute in Washington, District of Columbia, about how reducing incarceration can, according to him, decrease community safety and increase recidivism. According to Sen. Cotton, “if anything we have an underincarceration problem.”
This assertion is patently false and runs contrary to voluminous research that has led policymakers on both sides of the aisle to recognize the social and financial benefits of community-based alternatives for low-level offenses, and to push for reform of the adult criminal justice system, reducing our nation’s reliance on incarceration. The reality is that incarceration is a costly undertaking, both socially and financially.
In the juvenile justice system, the decision to incarcerate can carry even more far-reaching consequences. Placing a child in a juvenile prison increases their risk for physical and sexual assault.
Sen. Cotton’s own state has had a particularly damning track record. Half the children in Arkansas’ juvenile prisons are there for noncriminal behaviors. A 2014 report from the Arkansas Disability Rights Center found that children were not segregated by offense, were subjected to assault by staff and were in some cases held far longer than their offense merited.
In a report from the Bureau of Justice Statistics, the most recent year for which data is available, Arkansas’ Juvenile Assessment and Treatment Center was among the top 10 facilities with the highest rates of sexual victimization of youth.
Incarcerating children has also been shown to increase the likelihood that they will come back into contact with the juvenile justice system, eventually wind up in the deep end of the system and later are more likely come into contact with the criminal justice system as adults. These risks come with an average price tag of more than $200 per day per child.
Facts such as these have led many conservatives to see that incarceration’s dangers — particularly for the young — far outweigh its once-perceived benefits. “[T]here's been a mountain of research over the last few decades that has shown that different alternatives to prison work, whether it's problem-solving courts, electronic monitoring, treatment diversions for the mentally ill, we've had huge advances in risk assessment instruments that can better match offenders with the right programs,” conservative political analyst Marc Levin told NPR in a 2012 interview. Levin is also policy director at Right on Crime.
Arkansas juvenile justice professionals agree. Steve Nawojczyk, who was the director of youth services for the city of North Little Rock for seven years, told news reporters in an interview earlier this month that “Putting kids in jail is not the solution. Some kids need to go to jail, there are some very bad kids. We need to, in Arkansas, do a better job of assessment on the front end; we need to be sure that children, when they are in jail, that they get the proper mental health services.”
Services such as these, that juvenile justice professionals in Arkansas know to be key to really helping our children, are included in S 1169. The bill promotes trauma-informed care such as mental health and drug treatment programs, and provides for mental health screenings for children who encounter the juvenile justice system. Measures that, unlike incarceration, are supported by research. The time is now to listen to the research and reauthorize the JJDPA.
Naomi Smoot is senior policy associate at the Coalition for Juvenile Justice.
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