Sen. Cotton Blocking Juvenile Justice Update Bill from Conference Committee

WASHINGTON — Legislation that would update and overhaul the nation’s juvenile justice system has stalled over a single Republican senator’s concern over whether youths should be jailed for violating certain court orders.

Sen. Tom Cotton, R-Arkansas, has long opposed measures that would keep youth offenders from being locked up for violating court orders over such issues as curfew and school attendance. An update and overhaul of the Juvenile Justice Delinquency and Prevention Act passed the Senate (S 860) earlier this year without those measures. But the House version (HR 1809) phases out all incarcerations for such “status offenses” — including judicial orders — over the next three years.

Ordinarily, such discrepancies would be worked out in a conference between the chambers. But Cotton has refused to let the bill go to conference without a guarantee that the status offenses provisions are a dead issue.

Cotton’s spokeswoman didn’t respond to requests seeking comment.

Sen. Tom Cotton

“We have to get around Cotton, who won’t move,” said Marcy Mistrett, chief executive officer of the Campaign for Youth Justice, which supports the House bill. “He’s been very clear on that.”

Staffs for Republican Reps. Jason Lewis of Minnesota and Virginia Foxx of North Carolina have been working furiously to resolve Cotton’s concerns, a GOP House aide said.

Lewis’ spokesman, Stephen Bradford, said Lewis and co-sponsor Bobby Scott, D-Virginia, “are encouraging the Senate to move quickly to conference so that we can iron out the small differences between the two bills, and get the president a bill with vital reforms to the juvenile justice system.”

There are also some second-order discrepancies between the bills, including:

• Language in the House version that would give extra grant points to localities that commit to “youth promise council”-style reform approaches, long one of Scott’s cherished causes;
• Defining the “criminal justice function” to be funded for Native American tribes; the House version would send funds under Title II of the act, while the Senate version would send funds under Title V; and
• The Senate version puts funding into a single bucket, while the House version breaks out funding streams by title.

Advocates don’t consider any of these matters to be deal-breakers. That leaves Cotton and the thorny question of judicial orders.

The act hasn’t been reauthorized since 2002, even though funding for many of its programs have continued unabated. The question reform advocates face is whether the question of locking up juveniles over valid court orders is enough to walk away from a bill that has taken close to two decades to get this far.

There is much that reformers love in the bill:

• It requires states that receive federal grants to commit to "core principles," including segregation of young detainees from adults and the identification and reduction of racial disparities in juvenile detention;
• It "encourages" authorities to be more vigilant at screening children who might have been sexually trafficked or who suffer from mental illness or drug or alcohol abuse; and
• It encourages grantees to phase out the shackling of pregnant girls, support continuing education for detainees and "promote greater separation of juvenile offenders" from adult detainees.

The legislation would set aside $159 million in federal funds for fiscal 2017, followed by a 1.5 percent increase per year through 2021.

Some 7,000 juveniles are locked up each year for  status offenses. Not even the National Council of Juvenile and Family Court Judges — which successfully lobbied to include the original language in the act in 1984 — thinks they’re a good idea anymore.

“It’s an exception that has become the rule,” Mistrett said. “And it’s not good for kids, it’s not good for safety, it’s not good for public dollars.”

But Cotton has fought his increasingly lonely battle for years without bending and, thanks to the vagaries of parliamentary order, his vote counts.

“The authorization of the act is more important. We might have to swallow it,” Mistrett said. “There is a lot of good stuff in the reauthorization. … there is not going to be amendment strategy, we have got to get 100 percent of the senators behind this.”