Federal Juvenile Justice Regs: What’s the Holdup?

by Liz Ryan

Last December, before a packed room full of MacArthur Foundation’s Models for Change conference participants, the Obama Administration’s top Department of Justice appointee on youth justice issues, Administrator Bob Listenbee of the Office of Juvenile Justice & Delinquency Prevention (OJJDP), said he’d issue new regulations in January, 2014 on the Juvenile Justice and Delinquency Prevention Act (JJDPA).

For advocates of effective juvenile justice systems, it was a big announcement. Months later, there is still no sight of the new JJDPA regulations.

Here are three reasons why new regulations are needed:

Reason 1: It’s a Legal Obligation

Under the JJDPA as well as the Administrative Procedures Act, OJJDP is required to issue regulations to implement the JJDPA. Failure to do so violates federal law.

As a result, OJJDP is relying on the Office of General Counsel (OGC) for guidance, a notion that NAS concludes “does not adhere to federal rule-making standards or to the JJDPA, which stipulated that the OJJDP is required to consult with states when establishing rules, regulations and procedures that affect the federal/state partnership and compliance with the JJDPA requirements.”

Reason 2: The Forgotten Reauthorization

The current JJDPA regulations are nearly two decades old and are outdated. The last time regulations were issued was 1996, and the juvenile justice landscape has changed dramatically since then. The current regulations clearly do not reflect current conditions, the latest research or best practices in juvenile justice.

The regulations OJJDP is currently utilizing are based on a reauthorization of the act from 1992, even though a more enlightened reauthorization took place in 2002.

One egregious example of this is the “Disproportionate Minority Contact” (DMC) requirement that was changed from “confinement” to “contact” in the 2002 reauthorization. This change emphasizes the racial and ethnic disparities faced by youth of color, not just at the point of confinement but at all points in the juvenile justice system, including the transfer of youth to adult court where the most serious disparities occur.

The new map, Unbalanced Justice, produced by the Haywood Burns Institute (BI) underscores the disparities that occur as youth move through the juvenile justice system.

Yet every year, nearly all states are found in compliance with the DMC requirement. This seems unfathomable, given what the National Council on Crime and Delinquency’s (NCCD) latest report shows about racial and ethnic disparities increasing even as youth confinement is down.

Stronger federal policy is needed to tackle racial and ethnic disparities and new regulations would be a way to move that forward. This is underscored by the National Academy of Sciences in their recent comprehensive study, which states that “the scope of the problem and the complexities of addressing DMC call for a strong federal policy and more intensive efforts.”

Issuing new JJDPA regulations would update federal guidance on the law’s key provisions, such as the DMC requirement, based on the 2002 reauthorization of the law. They would also provide an opportunity to reflect the most up to date best practices in the field, such as successful models to assist states to more effectively reduce racial and ethnic disparities.

Reason 3: States Are Waiting and Watching

New regulations would assist states in advancing juvenile justice reforms.

In the 40 years that the JJDPA has been in existence, it has set federal standards for the custody and care of youth in the juvenile justice system and provided critical federal funding to assist states in meeting these standards. Efforts to remove youth from adult jails and halt the detention of status offenders were initiated under the JJDPA, and have been very successful.

An actual reauthorization of the JJDPA law would more dramatically advance state reforms, new JJDPA regulations would support state efforts moving in the right direction.

Further, President Obama has made a commitment to support boys and young men of color through the My Brother’s Keeper initiative. Issuing new JJDPA regulations fits directly in with that initiative and would be a concrete action that the administration could undertake immediately.

With all these reasons for issuing new JJDPA regulations, we are left asking what is the hold up? It can’t be that OJJDP needs more time to draft the regulations. They’ve been drafted.

How do I know this? I participated in discussions nearly four years ago with OJJDP on the creation of new regulations. The NAS study mentions that new JJDPA regulations were drafted several times, and submitted to the Office of the General Counsel, and have “failed to move forward.”

Perhaps OJJDP is anticipating congressional action on the JJDPA reauthorization before issuing new regulations. Reauthorization is sorely needed in order to overhaul the law to ensure it meets the most pressing issues in juvenile justice today, but OJJDP may have to stand in a very long line waiting for Congress to act. OJJDP can and should be constantly looking for ways to take actions on its own to advance juvenile justice reforms in the states.

Bureaucratic delays are no excuse for inaction. OJJDP Administrator Listenbee needs to deliver on his statement. He should act now and if necessary, involve the president and attorney general to break the logjam.

Liz Ryan is a campaign strategist, youth justice policy expert, and civil and human rights advocate.

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