By Jenny Collier, Chris Scott, and Marcy Mistrett

Yesterday, President Obama took a step toward improves access to quality education for young people involved in and returning from the juvenile justice system by signing the Every Student Succeeds Act (ESSA) into law, a bill that reauthorizing the Elementary and Secondary Education Act (ESEA). 

Established in 1965 as part of the war on poverty ESEA has provided services to schools, communities, and neglected and  low-income children over the decades.  Title 1, aimed at improving outcomes for disadvantaged children as well as the primary source of federal funding for schools and districts, has been the cornerstone of the Act. Title 1, Part D was established to provide prevention and intervention programs for children and youth who are neglected, delinquent or at risk of dropping out of school.  Part D was created in part to help ensure that the educational needs of youth who come in contact with the law are addressed, since these young people often are behind in school, have higher rates of learning differences from the general population, and can fall behind in their education during periods of detention and reentry. To help address these educational needs, Title 1, part D provides funding for state agencies and districts to assist in the educational transition of students from correctional systems back to their home communities to help ensure that they get access to the same quality education as provided in the local community.

New provisions in the Every Student Succeeds Law will help improve the success of youth involved in the juvenile justice system and strengthen their reentry outcomes by providing increased access to education and supports upon reentry. Under the reauthorized and improved law, states receiving Title 1, Part D funding for prevention and intervention programs for children and youth who are neglected, delinquent or at risk, must promote:

1. Smoother education transitions for youth entering juvenile justice facilities, including records transfer, better planning and coordination of education between facilities and local education agencies, and educational assessment upon entry into a correctional facility, when practicable;

2.  Stronger reentry supports for youth returning to the community, including requiring education planning, credit transfer, and timely re-enrollment in appropriate educational placements for youth transitioning between correctional facilities and local educational agencies and programs, and requiring correctional facilities receiving funds under the law to coordinate educational services with local educational agencies so as to minimize education disruption;

3. Opportunities for youth to earn credits in secondary, postsecondary, or career/technical programming, and requiring transfer of secondary credits to the home school district upon reentry;

4. Prioritizing achievement of a regular high school diploma not just a GED;

5. Supportive services for youth who have had contact with both the juvenile justice and child welfare systems.

These critical provisions fill significant gaps in the existing education law that will complement pending reentry and education reforms and provisions in the proposed Juvenile Justice and Delinquency Prevention Act (JJDPA) reauthorization bill; hopefully the next bill to get passed that supports justice involved youth.

Jenny Collier is Project Director of the Robert F. Kennedy Juvenile Justice Collaborative, a joint youth reentry policy project of Robert F. Kennedy Human Rights and Robert F. Kennedy Children’s Action Corps.

Chris Scott is a senior policy analyst at the Open Society Foundation, where he advocates for criminal, civil and racial justice.

Chris Bellamy, Assistant DA from Tennessee, speaking about the Juvenile Justice and Delinquency Prevention Act, “I support the JJDPA because I’m hard on crime.”

Yet, the JJDPA would be one of the last bills in the Senate which people would correlate with being “hard on crime”. Most would associate being hard on crime as using the most punitive approaches to responding to criminal behavior resulting in increased incarceration rates.

This is not the case with the JJDPA. The Juvenile Justice and Delinquency Prevention Act aims to lower incarceration rates and spending, while offering protections for youth who are in the juvenile justice systems, without compromising safety of communities. However, to Bellamy’s point, this bill also uses evidenced-based practices that have shown to decrease crime rates and increased public safety. Some might refer to these tactics as being “smart on crime”.

This week, a briefing in the Russell Senate Office Building was held to discuss the bipartisan bill S. 1169, the Juvenile Justice and Delinquency Prevention Reauthorization Act (JJDPA) of 2015. Senators from both sides of the aisle have cosponsored the bill, including Charles Grassley (R-IA) and Sheldon Whitehouse (D-RI). Those in attendance ranged from advocates for youth in the system, to staffers of senators and others with ties to the juvenile justice system, who came to hear testimony from groups such as the Coalition for Juvenile Justice, the Justice Policy Institute, Boys Town, and Fight Crime: Invest in Kids. There were also speakers with ties to the National Council of Juvenile and Family Court Judges, and the District Attorney’s office of Tennessee’s 19th Judicial District. The panel talked about the JJDPA and how the reauthorization can improve upon current law.

There are four main components of the JJDPA, the deinstitutionalization of status offenders (DSO), adult jail/lockup removal for youth, sight and sound separation from adults, and addressing disproportionate minority contact to the system (DMC).

Marc Schindler, Executive Director of the Justice Policy Institute, spoke about the history of the JJDPA. “We know that when young people are held in adult facilities we get terrible outcomes” he said.

Research has shown that youth released from adult facilities are more likely to offend than youth released from the juvenile justice system. It has also shown the lack of educational opportunities and other resources that are not present in adult facilities, but are available in juvenile centers matter. We know that it is a “lose-lose” situation when youth are in adult facilities because they can’t be kept safe or distanced from adults without being isolated/confined which in turn has other harmful effects. And, we know that youth incarcerated in adult facilities are 36 times more likely to commit suicide than youth in juvenile facilities. Schindler was talking about all of this research and more.

All the speakers spoke about their expertise and experience with the juvenile justice system to support the JJDPA and its reauthorization. The Honorable Judge Deborah Schumacher spoke about the deinstitutionalization of status offenders. A status offense is an offense that is only considered illegal because of the age of the offender; such offences like truancy, running away from home, and breaking curfew. In the case of minors, such offenses are things like truancy, or breaking curfew. “Status offenses are no reason to incarcerate a child,” said Judge Schumacher, “more harm will come of incarcerating a child for a status offense than if we used a community based alternative."

Chief Richard Crate, a police chief from Enfield New Hampshire and member of Fight Crime: Invest in Kids, spoke about the treatment of youth at the local level. He notes that the area where he has seen the most success has been in alternative programs for youth, some may know them as “diversion” or “restorative” youth courts or programs in which the state takes custody of the youth but “we don’t incarcerate them, we help them. We tell them, at least in New Hampshire, that everyone makes mistakes, and we’re not there to punish them.” The JJDPA will help to support these types of state efforts.

The JJDPA has positive, far--reaching effects on youth and communities all across the United States. Aeryn Van Eck was a youth who had been incarcerated, but they was placed in a non-secure, family like setting at Boys Town, an organization focused on fostering child rehabilitation and development into leaders and productive members of society. She spoke about the positive experience that alternative routes can have for youth who have offended. She notes that the JJDPA and initiatives like it were a big reason for her success.

With support for the bipartisan bill growing, there is a good chance it will be passed by the Senate this year. The law has worked in the past to lower the crime rates, lower incarceration rates, and lower spending on prisons, while investing in children successfully. The air in the room of the senate office building after the briefing was lively with chat of growing support from more senators, and a hopeful outlook for a renewed and improved JJDPA.

Written by Tomás Perez, intern with the Campaign for Youth Justice. Tomás is a senior, political science major at the University of California, Merced.

This week, a briefing took place inside the Library of Congress to discuss the appropriately named house bill H.R. 2944, The Safe, Accountable, Fair, and Effective (SAFE) Justice Act. An audience of media representatives, congress members, interest group lobbyists, and other individuals invested and concerned with the criminal justice system packed the Members Room, awaiting the briefing from the panel of speakers. The panel consisted of a variety of point people on the issue ranging from former U.S. Attorney, Tim Heaphy, to a former federal prison inmate, to a victim’s rights advocate, to even the general counsel for Koch Industries, Inc. The primary congressional speakers were Rep. James Sensenbrenner (R-WI) and Rep. Bobby Scott (D-VA), which added to the diverse and bipartisan representation of supporters at the briefing.

Van Jones, a CNN political contributor, started the briefing with a general overview of the SAFE Justice Act. If enacted into law, the bill, according to FAMM (Families Against Mandatory Minimums), would “reduce prison costs and populations, save money, reinvest savings into law enforcement needs (e.g., training, body cameras, blue alerts), and protect the public by using state-tested, evidence-based practices that are reducing crime”. The SAFE Justice Act seeks to end over-criminalization, and break the cycle of recidivism, or relapse of criminal behavior. It uses strategies that were implemented in 32 states (such as New York, Texas, Rhode Island, Wisconsin, Georgia, and South Carolina) where there was state-level reform that reduced both their crime and imprisonment rates over the past five years.

A Federal Prosecutor's Perspective

Former U.S. Attorney, Tim Heaphy spoke about his experience being a federal prosecutor for several years and his perspective on reform for the criminal justice system. He stated that he prosecuted people hard, and for the highest charges. The vast amount of cases he heard were drug related and non-violent he said. However, while he was a U.S. Attorney, he would prosecute on charges of conspiracy, which basically meant that although the defendant was not a direct perpetrator of whatever crime was committed, the fact that they were slightly affiliated with the direct perpetrator(s) and/or had a knowledge to the slightest degree of what possible crimes were being committed, it made them not only an accessory to the crime, but a conspirator by allowing it to happen. Heaphy would use this method to his fullest extent, until he later realized that the window of resources for prosecutors was diminishing because the spending on incarceration and prisons was increasing. This was to the point that prosecutors were left with minimal resources not only for themselves, but also for the prisoners. It was at this moment that he realized that there must be reform to balance out the budget for the justice department. The past 20 years has shown a dangerous trade off in which more money was being put into imprisoning people and less money going to federal assistance to state and local law enforcement, including resources for those convicted.

Federal Prison: Not Just for the "Worst of the Worst"

A notable panel speaker was Bernie Kerik, who had a unique set of perspectives on the issue by not only being a former NYPD officer, detective, and eventually commissioner, but also an ex-inmate of federal prison. Kerik was a leader in criminal justice as well as national security and crime and terrorist prevention. He was nominated by former president Bush to be head of Homeland Security, but withdrew his nomination after being investigated by the Bronx District Attorney’s Office. He pleaded guilty to two ethics violations, misdemeanors, in 2006, and then was indicted by a grand jury on charges of conspiracy, tax fraud, and making false statements in 2007 and served 4 years in federal prison. Kerik stated, “like many Americans, thought that federal prison was reserved for ‘the worst of the worst’ but I was wrong”. He stated that while he was there, he met many young adults who were first time offenders, and were charged with nonviolent crimes. There were many who were charged at the state level then turned over to federal prosecutors. It is not hard to imagine that some of these were juveniles charged as adults, and then somewhere along the line, were handed off to federal prosecutors or transferred to federal adult facilities due to overcrowding or lack of accountability.

We Cannot Incarcerate Our Way Out Of These Problems

Dionne Wilson, a victim’s rights advocate and survivor outreach coordinator for Californians for Safety and Justice, spoke on behalf of communities most impacted by the crime in America today. Wilson was married to a police officer and said that she, like many Americans, had an idea for what “justice” meant. Her husband was shot and killed in 2005, and like any person, she wanted the shooter to receive the fullest extent of punishment. Who could blame her? The courts agreed with her and sentenced a death penalty to the defendant. Yet, the verdict would not suffice, or give her any closure or peace of mind. After contemplating the issue for many years, she became an advocate for sentence reduction and prison reform to stop the cycle of crime in America not by being “hard on crime”, but by being smart on crime. “We cannot incarcerate our way out of these problems” she said, and with that she would be one of the most unlikely faces for incarceration-reduction and prison reform. She noted that she was very privileged to be in her position, as the wife of a police officer, many people would listen to her. But when she would speak to other victims of crime, such as the families and communities, she noticed not everyone was as well received. Now, she acts as a voice for the voiceless and advocates for prison reform that ends the cycle of violence, to really solve the root of the problem.

The Cycle of Incarcerations

Many other people from all backgrounds and expertise spoke to defend this bill, either from a moral standpoint, a fiscal standpoint, and a constitutional standpoint. The overarching support from the briefing was clear to be bipartisan, and diverse. The issue of mass incarceration is a pressing issue that has now demanded the attention and priority of the federal government on a scale of magnitude that the country has not seen before. PEW charitable trusts--who were also represented at the briefing--shared their research which has shown that prison spending grew twice as fast as all other justice department spending from 1980 to 2013. With the bill aiming to end the cycle of crime and incarceration, this could have a big impact on the youth of America as well. At the moment, youth tried and convicted as adults will often serve out their sentences into adulthood and in some cases, until death. This leaves them stuck if they are to assimilate back into society at the end of their sentence. Without proper resources for them, this leads to recidivism, and they will likely offend again. This is the cycle of incarceration and crime that the SAFE Justice Act is aiming to end. It is time for America to stop the cycle of incarceration not by being “hard on crime” but by being smart on crime.

Written by Tomás Perez, intern with the Campaign for Youth Justice. Tomás is a senior, political science major at the University of California, Merced. 

Nicholas Bookout, CFYJ Fellow and Carmen Daugherty, Policy Director

With the JJDPA reauthorization making it out of the Senate Judiciary, along with President Obama’s recent speech at the NAACP and subsequent prison visit, there is no question that juvenile justice reform has both the American Public and federal policymakers’ attention. While these steps towards federal juvenile justice reform are very exciting, it is also very important to acknowledge the reforms taking place nationwide in state legislatures.

This legislative session, legislation to protect youth from the adult criminal justice system was introduced in the form of 35 bills in 19 different states. To summarize the results of these bills:

• 7 bills that the CFYJ supports passed!
• 3 bills are still active in legislative sessions (3 in California).
• 18 bills that were introduced but the legislative session ended before they were passed or voted down.
• 6 bills that we supported died (5 in Florida, 1 in New York).
• 1 bill that we opposed died (Delaware).

Very few bills were introduced that ran contrary to the movement to protect youth from the adult system. One of these few bills was introduced in Delaware. Senate Bill 12 would have required adults who possess a firearm, and were convicted of a violent crime at age 16 or 17, to receive a mandatory minimum sentence. However, this bill died in committee, signaling a victory for youth justice.

Most Recent Victories!

House Bill 3718 is an enormous victory for Illinois. Before passage of the law, children under the age of 18 can be automatically transferred to adult courts. This practice has very negatively impacted communities of color, with 99 percent of the youth arrested and transferred to adult court in Cook County between 2010 and 2012 being children of color. 90 percent of these cases were then pled guilty – often resulting in adult incarceration. However, House Bill 3718 requires a juvenile judge to review this transfer to determine the proper court for the child, taking into account the age, background, and individual circumstances of the child. With the signature of this bill, countless children would be saved from unnecessarily harsh sentences, and the physical, mental, and sexual abuse that often comes with adult incarceration as a youth.

In New Jersey, the Governor recently signed Senate Bill 2003. This bill includes numerous provisions that drastically improve juvenile justice in New Jersey. First, this bill increases the minimum age at which a youth can be tried as an adult from 14 to 15. Second, it   limits the transfer and incarceration of youth under the age of 18, instead of the current lower limit of 16, to only those committing the most serious and violent of crimes. Third, this bill makes it more difficult for youth to be transferred to adult court, as prosecutors must submit written analysis on the reasons for the transfer, which is then granted only at the discretion of a judge. Finally, this bill tightens restrictions on the use of solitary confinement for youth. These reforms would signal a positive move towards justice for New Jersey youth, while also improving physical and mental well-being.

Other Important Victories

In Louisiana, House Resolution 73 requests the Institute on Public Health and Justice to study the issue of raising the age of juvenile jurisdiction to include seventeen-year olds. Hopefully the results of this study will yield further legislation to protect children in one of the tougher states for youth justice.

Previously, the state of Maryland authorized a district court exercising criminal jurisdiction over a juvenile to order a child be held in a juvenile facility. With the passage House Bill 618, the law now mandates that the district court, when exercising criminal jurisdiction, orders a child be held at a juvenile facility, except under a few specific circumstances (bail, no capacity, security risk). Additionally, if the district court withholds a transfer to a secure juvenile facility on the basis of the child posing a risk to his or her own safety or the safety of others, the court must state on the record the reasons for finding such a risk. Because of the recent drop in juvenile crime rates, the juvenile facilities have the ability to accommodate more children without significantly impacting their expenditures. Therefore, this bill will reduce the number of children held pre-trial in adult facilities, without imposing increasing costs on the state of Maryland.

Texas, a state surprisingly making positive strides in youth justice reform, passed two bills protecting youth. In Texas, a juvenile may be waived by a juvenile court to be tried as an adult in a criminal court. Previously, this transfer could not be appealed until after a juvenile had been convicted or deferred. With the passage of Senate Bill 888, a juvenile has the right to appeal a juvenile court order that waives exclusive jurisdiction before adjudication. This legislation also mandates that the Supreme Court take up standards to accelerate the disposition of these appeals by the appellate court or the Texas Supreme Court. These appeals may be taken by or on behalf of the child. With the post-adjudication appeal process often taking years to complete, this streamlined process increases the efficiency of appeals, potentially saving the state of Texas countless resources. Meanwhile, juveniles facing charges will encounter a more just process capable of adequately accounting for the differences between juveniles and adults.

The second bill, Senate Bill 1630, first aims to reduce the number of Texas youth held in TJJD (Texas Juvenile Justice Department) facilities, especially those far from their families and communities. To do so, they are expanding the scope of juvenile probation, with this probation serving as an alternative to incarceration for low and medium risk youth.   This bill will keep low and medium risk children in Texas closer to home, likely decreasing recidivism and providing specialized services for the needs of youth.

Finally, Utah also undertook positive youth justice reform. Previously, a Utah district court held jurisdiction over any 16 year old that committed any sort of felony. With Senate Bill 167, this jurisdiction is now limited to about ten violent felonies. In addition, when the state petitions to have a juvenile transferred to a district court under the premise of an allegation of one of these felonies, the juvenile judge may exercise judgment on the transfer. The judge can now take into consideration the interests of the minor, the ability of different facilities (both adult and juvenile) to provide rehabilitative services, and the course of action best suited to reduce the risk posed to the public. Lastly, with SB 167, juveniles may not be shackled or otherwise restrained when appearing in court. Consequently, this bill will reduce the number of youth in Utah unnecessarily tried as adults, while also providing for more humane treatment of children and safeguards to keep them out of adult facilities.

Finally, in California, there are multiple reforms taking place. The California District Court of Appeals recently upheld Proposition 47, the Reduced Penalties for Some Crimes Initiative, which was approved in November 2014. As a result, non-violent, non-serious crimes in California must now be classified as a misdemeanor instead of a felony. Consequently, those sentenced under previous guidelines may be re-sentenced. Such ruling allows thousands of youth previously sentenced to unusually harsh penalties to appeal these decisions and leave incarceration.

Furthermore, Senate Bill 382 passed the California Senate and Assembly, and simply awaits concurrence on amendments. If signed by the governor and enacted, this bill would allow judges to consider more comprehensive information when granting a transfer waiver. By doing so, judges will have a greater opportunity to consider the rehabilitative capacity of a youth before subjecting that individual to adult court, its more austere consequences, and potential incarceration.

The Campaign for Youth Justice is incredibly excited about the passage and progress of these bills. With each piece of legislation passed, countless youth in these states are in one form or another protected from the horrors of being incarcerated with adults as a child. More of the United States’ children are kept out of harm’s way, and given a better chance to be rehabilitated, in lieu of being subjected to inhumane punishment.

While it is encouraging to see these positive steps taken, and CFYJ commends these states and all involved for passing such legislation, there is still so much more to be done – in these states and across the nation. With a per day average of 6,000 of America’s youth spending time in adult jails or prisons, these reforms are just the tip of the iceberg when it comes to the need to protect our nation’s youth. Until this number is zero, we must keep fighting to have children be treated by America’s criminal justice system as just that – children. 

Senator Chuck Grassley (R-IA) and Senator Sheldon Whitehouse (D-RI) led a hearing of the U.S. Senate Judiciary Committee yesterday on the oversight and accountability of juvenile justice programs authorized by the Juvenile Justice and Delinquency Prevention Act (JJDPA). The Act, first passed forty years ago and last reauthorized in 2002, provides guidance and funding to states around building effective juvenile and criminal justice systems that protect kids and promote public safety.

The Office of Juvenile Justice and Delinquency Prevention (OJJDP), housed under the Department of Justice, was created by the Act to ensure states comply with the four core requirements of JJDPA: (1) the de-institutionalization of status offenders, (2) the removal of youth from adult jails, (3) the sight and sound separation of youth from adults while confined, and (4) addressing the disproportionate minority contact of youth involved in the juvenile justice system. As Mr. Grassley highlighted, “Congress designed [juvenile justice] grants to be earned each year—not to be handed out as entitlements.” The hearing explored whether the Justice Department was providing adequate oversight to the administration of this Act.

Witnesses at the hearing articulated the need for more transparency between the federal government and states, attention to updating regulations and guidance for the Act, and delays and inconsistencies in compliance auditing. Furthermore, witnesses testified to the importance of the JJDPA in protecting our youth, with some notable excerpts below:

“The power of this law is that it really helps kids,” noted Elissa Rumsey, Compliance Monitoring Coordinator at OJJDP and DOJ Whistleblower, DC.

“ We need a strong federal presence with adequate funding. Congress should proceed with a fortified reintroduction of JJDPA,” Professor Dean Hill Rivkin, Distinguished Professor, University of Tennessee College of Law, TN

“The time is ripe to re-authorize the JJDPA and in so doing make the changes necessary to improve the accountability and oversight of juvenile justice grants. I do not view this hearing as an obstacle to re-authorization, but an opportunity to improve upon a historic and strategic Act of Congress that has assisted states like mine to do the right thing for youth.” Judge Steven Teske, Chief Judge, Clayton County Juvenile Court, GA.

At the hearing, Senator Charles Grassley and Senator Sheldon Whitehouse (D-RI) both reaffirmed their commitment to reintroducing and passing a strengthened Juvenile Justice and Delinquency Prevention Act (JJDPA). The Senators co-sponsored S. 2999 to reauthorize JJDPA in December, 2014. The bill strengthened the core protections and accountability since the last reauthorization more than 13 years ago. 

To watch the hearing or read the testimony, go to the U.S, Senate Judiciary Committee website.

By Najja Quail, CFYJ Intern

“Without counsel, an accused’s chances of regaining liberty are substantially prejudiced.” The Constitution Project recently hosted a luncheon to discuss its recent report on pretrial justice and the right to counsel at first judicial bail hearings. In its report, The Constitution Project highlighted the lack of constitutionally mandated counsel for indigent clients at pretrial hearings where bail is set, often at an amount that no indigent citizen could pay. The lack of representation at these hearings often results in indigent clients spending unnecessary time in jail, not because of an adjudication of guilt, but simply because they cannot afford bail. For youth, the negative impacts of this practice are even more detrimental.

More often than not, the result of the lack of counsel at preliminary hearings is detention. For youth charged as adults, this often means being detained in an adult jail. The Prison Rape Elimination Act (PREA) requires that youth in adult facilities be separated by sight and sound from the adult population. Too often this results in youth being placed in solitary confinement, a torturous practice, before any adjudication of guilt. The Juvenile Justice and Delinquency Prevention Act (JJDPA) does not require sight and sound separation for youth charged as adults, a loophole with equally devastating consequences.

In Rothgery v. Gillespie, Justice Souter asserted that “counsel’s advocacy at the initial appearance is essential to the fair administration of our system of justice.” The lack of counsel often results in youth being unnecessarily detained which places them at a grave disadvantage. As a country, we consistently recognize the vulnerability of youth and generally view them as a group requiring special protections. However, when it comes to our treatment of youth involved in the justice system, we seem to lose sight of the fragility of youth and often treat them harsher than adults. The loss of liberty is one of the most highly protected constitutional rights, a right that does not disappear simply because someone is accused of committing a crime.

To learn more about pretrial justice and judicial bail hearings, please contact The Constitution ProjectConstitution Project.