Before adjourning for the August recess, the Senate quietly passed the Juvenile Justice and Delinquency Prevention Reauthorization Act, S. 860, by a voice vote. The bill reauthorizes the Juvenile Justice and Delinquency Prevention Act of 1974, the authorization for which expired in 2007, and provides long overdue reform to the juvenile justice system.
For as quiet as passage was, the reauthorization of the Juvenile Justice and Delinquency Prevention Act (JJDPA) is notable. Last year, Sen. Tom Cotton (R-Ark.), who ridiculously once said that the United States has "under-incarceration problem," blocked a similar bill. In fact, he was literally the only member of the upper chamber who stood in the way of its passage.
Sen. Cotton’s objection to the bill was over the proposed phase out of the valid court order (VCOs) exception. A violation of a VCO would allow state and local judges to detain juveniles for status offenses — actions such as curfew violations, truancy, and tobacco use that are offenses only because of the person’s status as a minor. In some states, juveniles who commit a status offense and are subject to a VCO are detained with serious offenders, increasing a juvenile’s risk of recidivism.
The use of VCOs has been in decline nationwide. Last year, however, Sen. Cotton’s spokesperson defended his intransigence, noting that Arkansas has one of the highest VCO use rates in the country. The use of VCOs in Arkansas had been in decline, dropping by roughly half between FY 2013 and FY 2014, according to the Office of Juvenile Justice and Delinquency Prevention.
The most recent report from the Arkansas Division of Youth Services showed that 46 percent of youths who entered the state’s juvenile justice system had committed misdemeanors or violated probation for adjudicated for a misdemeanor. The cost of detaining a youth Arkansas is nearly $64,000 annually, so detaining juveniles for what amounts to status offenses comes at a big cost.
Because Sen. Cotton wouldn’t agree to allow JJDPA reauthorization to move in the Senate, the bill that would have reauthorized JJDPA died.
The issue was given new life earlier this year in the new Congress. The House passed the Juvenile Justice Reform Act, H.R. 1809, in May by voice vote. The House version of JJDPA reauthorization includes a phase of VCOs. The Senate, however, still struggled to get passed Sen. Cotton’s strange desire to ensure that judges could essentially lock children up for status offenses.
The Juvenile Justice and Delinquency Prevention Reauthorization Act, introduced by Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), offers key reforms. The bill reauthorizes JJDPA, prohibits the placement of juveniles in adult facilities, places a greater emphasis on evidence-based recidivism reduction programs, and increases transparency.
Unfortunately, the bill doesn’t include a phase out of the VCO exception, though it does prohibit the detention of juveniles who commit status offenses, with one exception — if a juvenile violates a VCO. In short, Sen. Cotton got his way, and judges will be able to place children who violate VCOs because of a status offense in detention facilities.
There is still an opportunity to address the concerns about the use of VCOs. Appointed members of the House Education and Workforce Committee and the Senate Judiciary Committee will likely enter into a conference committee and produce a final version of the bill that rectifies the differences between the two bills. If language phasing out the VCO exception in put in the conference report, it can’t be amended from the floor of either chamber. The conference report is given a straight up or down vote.
Hopefully, the House conferees will insist that the VCO exception for status offenses should be phased out in the conference report.