Arkansas Senator Holding Up JJDPA May Be Listening to Wrong Counties

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Judge Steven TeskeSince writing my open letter to Sen. Tom Cotton regarding his opposition to removing the valid court order (VCO) exception of the Juvenile Justice Delinquency Prevention Act, many have weighed in, trying to sway the senator to change his position. Many have thrown every ounce of research showing that detention of youth for status offenses is harmful, not only to the youth, but to public safety.

Despite the evidence being dumped on the Republican senator from Arkansas, he refuses to budge. This is confounding to all legal experts. For example, take the excellent column by Yasmin Vafa, who expressed her frustration in the comment, “It is difficult to understand why Sen. Cotton would be in favor of a policy that those of us who work with children and families every day, and whose role it is to protect the public, ensure justice for victims and rehabilitate children, so vehemently oppose.”

As I write this, I am sitting at the Coalition for Juvenile Justice annual conference listening to people ask, “What are we to do with Senator Cotton?” The answer doesn’t change much — continue hammering him with the evidence. After all, he is an attorney who graduated from Harvard Law School and has an appreciation for “the evidence.”

True, but the senator isn’t practicing law. He is not litigating a case and required by a trial judge, like me, to abide by the rules of evidence.

The senator is practicing politics because that is what politicians do.

Maybe we should cut the senator some slack because he is likely not calling the shots. We make the assumption that he is calling the shots because he votes on the Senate floor, but politicians don’t always vote in support of the evidence, they vote in support of their constituents’ interests. My advice to the legal experts trying to persuade the senator is to shift their strategy to those constituents who have the senator’s ear.

This scenario reminds me of Napoleon Bonaparte’s observation that “In politics stupidity is not a handicap.”

Legal experts remain stupefied by the senator’s refusal to acknowledge the overwhelming evidence of the destructive impact of incarceration on youth and on public safety. A few of these experts have confided in me their postulation that the senator lacks the acumen to discern the status offender evidence.

I am not convinced of this. On the contrary I am convinced the senator “gets” the research and may, in the privacy of his cerebral residence, agree with the legal experts. The senator’s credentials is evidence sufficient for me that he can discern the most complex of evidence, and his intellect impresses on me that he knows when to ignore the evidence and risk the appearance of stupidity to satiate the interests of his constituents.

After all, isn’t it the goal of every politician to enhance their odds of re-election, which sometimes forces a politician to take positions against the best practice, even if it creates more harm? I wouldn’t be surprised if the senator wished this constituent situation wasn’t plaguing him. It’s quite possible that the senator wants to vote to remove the VCO exception, no matter what he has said or will continue to say.

The legal experts should be asking who these constituents whispering in the senator’s ear are. I also would want to know if their influence is by majority or by position. So, let’s take a look at the who and what.

My friends in Arkansas have advised me that some judges have reached out to the senator expressing their support of the senator’s position against removal of the VCO. I have read a letter written by an Arkansas juvenile court judge to the senator opposing the removal of the VCO. It describes a circumstance in court involving a child accused of molestation. The parties agreed that the circumstances warranted a negotiated plea to a minor offense. The judge accepted, and the charge was reduced to a status offense. The judge proffered this example in support of the VCO exception to show the need for detention should the child violate the order because the original act was a delinquent offense.

[Related: An Open Letter to U.S. Senator Tom Cotton]

Although I appreciate the consideration provided to this child, this has to be the poorest example in support of the VCO exception I have ever heard. Georgia, like many other states, also allows a judge to treat a delinquent act as a status act if the judge concludes that the delinquent act is incidental to status conduct such as unruly and truant behaviors, thus concluding the child is not delinquent and subject to detention. In other words, we separate the trees from the forest, and quite frankly, so does the Arkansas juvenile code, except that in Arkansas youth with status offenses can be incarcerated.

This example is like painting black stripes on a white horse and calling it a zebra. The reasons for eliminating the VCO exception strictly applies to true status offenders, not kids who have committed serious delinquent acts and by a stroke of a judge’s pen are magically called a status offender. If a judge wants to retain the discretion to detain, then he or she should reduce it to a lesser included offense or other offense similar in nature to the original act that is a misdemeanor.

But I can’t believe the senator, with his Harvard Law School education, is falling for this straw man argument that would be obliterated with the wind.

I keep coming back to the practice of politics, that unfortunately stupidity is not a handicap — diluting effective legislation by compromising away its heart and soul to accommodate constituents back home. What stupid things politicians must do to satisfy their constituents.

At first blush, it’s no surprise the senator is opposing the VCO exception because his state is one of the top offenders of incarcerating youth for status offenses.

But has the senator looked at his state’s data on which counties incarcerate the most status kids? Of the 75 counties in Arkansas, 27 do not incarcerate status kids despite the allowance to do so. The remaining 48 counties together incarcerate approximately 1,000 status kids (the juvenile court judges dispute this number and claim it’s about 500).

Regardless, the top five offending counties together incarcerate 468 status youth, which represents nearly half of all incarcerated status youth. This means the remaining offending counties on average incarcerate only 12 status youth annually.

The numbers clearly show that most judges in Arkansas work diligently not to incarcerate status youth, and who knows, if the truth be told, they probably would prefer being told not to incarcerate these youth. I know because I see these dynamics play out all across the country among judges, including in my own state.

If the practice of law demands adherence to the rules of evidence, it would follow that the practice of politics demands adherence to the rule of constituency representation. So who is the constituency the senator is representing? The band of five who incarcerate most of the status kids, or the 27 who do not and the remaining 43 who on average incarcerate only 12 annually?

I suggest the tail is wagging the dog in Arkansas.

Before leaving the CJJ conference, I spoke to my longtime friend Jerry Walsh, who is the chair of the Arkansas State Advisory Group, made up of members appointed by the governor. The senator would do well to speak to him about the realities in Arkansas, not the band of five.

When youth who have committed no crime are incarcerated and suffer abuse inside Arkansas detention centers, like the 10-year-old sexually assaulted by an adult sex offender at Miller County Juvenile Detention Center, something drastic must be done.

I choose the lesser of two evils — risking a child doing harm to self over introducing a child to institutional abuses and the delinquency training that resides inside. I prefer not to create more delinquents to victimize others.
Public safety must come first over our proclivity to protect a runaway or punish a truant because neither victimizes others.

More related articles:

Lawmakers Hope to Bring JJDPA to Senate Floor Again

House Committee Hears Strong Calls for JJDPA Reauthorization


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