Willful blindness to misinformation on Juvenile Justice and Delinquency Prevention Act compliance reports.
“Blanket passes” on one of the four requirements of the act for all states.
Relegation of staff who questioned compliance decision-making.
Those were among the most notable and troubling accusations leveled at the Office of Juvenile Justice and Delinquency Prevention by two of its current employees at a Congressional hearing yesterday.
The two OJJDP employees – Compliance Monitoring Coordinator Elissa Rumsey and Disproportionate Minority Contact Coordinator Andrea Coleman – both said states have repeatedly received full funding while failing to comply with some of the act’s four core requirements.
“I have often wondered how OJJDP can in good conscience allow certain states to receive full funding despite clear evidence of violations of core requirements,” said Coleman.
Failure to comply with any single core requirement is supposed to result in a 20 percent reduction to the formula grant sent to the state by OJJDP.
“Congress designed these grants to be earned each year, not to be handed out as entitlements,” said Sen. Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee. The hearing yesterday follows months of back and forth between the Senator and the Office of Justice Programs (OJP), which oversees OJJDP.
OJP has already admitted to an inappropriate compliance monitoring policy that “is not permitted under the statute,” Grassley said at the hearing. “As they say, the first step to recovery is admitting that you have a problem, and it is encouraging that the Department has finally taken that step.”
While problems with compliance appear to have started years before President Obama took office, Coleman was critical of current OJJDP Administrator Robert Listenbee, who was conspicuously absent from the hearing.
“This decades’ old failure continues because Mr. Listenbee has focused more on his relationship with advocacy groups, rather than on states,” Coleman said.
Listenbee was not invited to testify at the hearing, according Grassley spokeswoman Beth Levine. His immediate superior, Assistant Attorney General Karol Mason, was.
“In this administration, under my watch, we have never pretended that everything is fine,” Mason said. She said the agency has established a “Core Protections Division” at OJJDP and will develop a “robust compliance policy that is objective.”
Under the Juvenile Justice and Delinquency Prevention Act, there are four core requirements that states must comply with:
- Not detaining youth for status offenses, transgressions that would not be illegal for adults.
- Not jailing juveniles in facilities that house adults, with specific and limited exceptions.
- Maintaining “sight and sound” separation of juveniles in the few exceptional instances where juveniles are housed with adults.
- Making meaningful efforts to address disproportionate minority contact in state juvenile justice systems.
Forty-nine states and the District of Columbia participate in the act; Wyoming is the only state that does not. According to annual reports on the OJJDP website, the agency OJJDP issued 70 findings of noncompliance to a total of 16 states between the fiscal years 2001 and 2012.
The vast majority of those noncompliance findings were issued to five states: Mississippi, Ohio, North Carolina, South Carolina, Washington
Issues with the integrity of the JJPDA compliance process began with Jill Semmerling, a whistleblower within the Justice Department’s Office of Inspector General (OIG), who says that she was sidelined by OIG while investigating problems with compliance monitoring in Wisconsin.
Her former office did eventually post a report in September citing a Wisconsin compliance monitor who told the OIG he knowingly submitted false numbers that would put the state in compliance with the requirement to not deinstitutionalize status offenders.
According to the report, “He was afraid to submit numbers that showed Wisconsin was out of compliance because Wisconsin…would lose grant money and potentially affect his employment.”
At yesterday’s hearing, OJJDP Compliance Coordinator Elissa Rumsey testified that she received evidence that Wisconsin had submitted “fraudulent compliance data to OJJDP.”
In 2008, six months after she reported the alleged fraud to superiors, Rumsey said she was “stripped of many of my professional responsibilities, especially my compliance monitoring duties.”
Rumsey testified that a former Virginia state compliance official, now working for OJJDP, told her that “state compliance officials have known for years that DOJ/OJJDP would accept incorrect data and improperly find compliance.”
Andrea Coleman is nominally OJJDP’s disproportionate minority contact (DMC) coordinator. She testified that her recent findings of noncompliance status on the DMC core requirement were overturned by Listenbee.
“After I made recommendations of noncompliance in 2013 and voiced concerns in 2014 and 2015, my job duties were reassigned to another staff member, even though I still hold the formal title,” Coleman said.
She said that for the past two years, Listenbee had ordered a “blanket pass” on the DMC requirement to all states. The reason for the pass is allegedly that OJJDP is developing an improved tool by which to measure DMC compliance.
“When Mr. Listenbee was appointed to be Administrator in March 2013, I, like many staff members, was excited that he would bring his expertise and vision to OJJDP, particularly with addressing DMC,” Coleman testified. “However, compliance monitoring issues have been exacerbated under his tenure and individuals who speak up suffer retaliation.”
Grassley later asked Mason if she believed that a blanket pass was permissible under law, and she did not answer.
Mason’s testimony for the record did identify three central problems with current JJDPA compliance monitoring:
Outdated Regulations: “In some instances, OJJDP failed to update the regulations to reflect these statutory revisions, and many of the current regulations remain unchanged from their initial publication in 1981.”
Vague Standards: “A number of key terms used in OJJDP regulations and policies are unclear or ill-defined, which resulted in individual reviewers making their own subjective decisions about their meaning and thus injecting substantial subjectivity into the monitoring process.”
Delays in The Process: “The Act requires that OJJDP’s grant funding determinations be based on data submitted by the states for the prior year. In practice, however, there has been a two- to three-year lag between the states’ data submission and the fiscal year affected by the compliance determination.”
The JJPDA has not been reauthorized since 2002 despite multiple efforts by the Senate Judiciary Committee to start the process. Sens. Grassley and Sheldon Whitehouse (D-R.I.) introduced a reauthorization bill at the end of the last Congress.
It is expected that the two will introduce another reauthorization bill in the coming months, though it is certainly possible that Grassley’s investigation will inspire new amendments focused on transparency and accountability.
While advocates have pushed for a reauthorization that requires more of states, the amount of funding tied to compliance has been slashed in recent fiscal years. The appropriation for Title II Formula Grants, the primary JJPDA funding stream, declined from $75 million in 2010 to $40 million in 2012.
The Title II appropriation rose to $55 million in 2015. But a longtime complementary funding stream called the Juvenile Accountability Block Grant ($55 million in 2010) has been zeroed for the past two years.