Justice Eases New Rules on JJDPA Compliance; Punts Racial Disparities Standards to Trump Administration

In August, the Obama Administration proposed new rules related to the Juvenile Justice and Delinquency Prevention Act of 1974, which remains funded by Congress but has not been reauthorized since 2002.

Just days before the transfer of power to the Trump Administration, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) produced a set of rules that is not complete, but does finalize several key changes.

Youth Services Insider had a chance to go through the whole set of final rules. Here is our breakdown:

Stricter, But Less Strict, Compliance Standards

The August proposed rules would have, among other things, drastically ratcheted up the standards for state compliance with three of the law’s four core requirements:

  • Not detaining status offenders
  • Keeping most youth out of adult confinement spaces
  • Sight/sound separating them from adults when it is necessary to house the two groups together.

The old process for compliance was based on de minimis standards; meaning, there was an acceptable amount of noncompliance that Justice would tolerate. In any given year, a few states might be out of compliance with one or two JJDPA standards.

The proposal set the compliance standards based on a best practice calculation. To reach these, OJJDP used 2013 compliance data and took the three lowest state rates from each of the four JJDPA regions. Those 12 figures were averaged out to produce a new substantial compliance test.

Under the proposal, nearly every state (48) would be out on at least one standard. Predictably, that proposal was met with dozens of comments from state agencies, many of whom said that they might not continue to participate in JJDPA.

The final rules toss that whole process out the window, and instead establish a structure for states to be graded pass/fail based on a distribution.

Here’s how it works: Each year, OJJDP will use the average for two or more years of data, and move any massive negative outlier. It will then mark the figure that represents two standard deviations from the mean.

From there it’s simple: If a state is inside that second standard deviation, it is compliant. Otherwise, it loses 20 percent of its JJDPA formula grant.

The two-year-or-more averaging will begin next year, so the first year it will affect state awards is fiscal 2018. For this year, OJJDP is using fiscal 2013 data only, for reasons not explained in the rules.

“OJJDP believes that the methodology for establishing new compliance standards included in this partial final rule fully addresses the concerns raised by commenters,” the final rules state.

There will be a pretty easy test of that. If you see lots of states bail on JJDPA in the coming three years, the rules did not fully address the concerns. But if you take the position that the standards ought to be raised, perhaps some attrition is to be expected.

The standards for each year will be posted by August 31.

Punting on Racial Disparities

The August proposal set up new standards for the three aforementioned JJDPA requirements, and for the fourth requirement: That states make meaningful efforts to address disproportionate minority contact (DMC) in their juvenile justice systems.

The August proposal essentially codified an already-used, five-phased reduction framework for gauging state progress on identifying, addressing and tracking the presence of DMC.

In a public comment submitted after the proposal was published, the W. Haywood Burns Institute and Center for Children’s Law and Policy – two nonprofits that contract with the Justice Department contractors to assist local systems with DMC issues  ­– said the new rules should “do much more to incorporate what we know about effective efforts to reduce justice system involvement for youth of color and racial and ethnic disparities.”

But not only did OJJDP pass on incorporating feedback from the public comments, it decided to pass entirely on finalizing new rules related to DMC. That means it will now be up to Trump’s Justice Department to decide whether or not to finalize any JJDPA rules about race.

OJJDP left a litany of procedural stuff for the Trump Justice Department to issue final rules on. But it is truly surprising to YSI that it would allow the incoming administration to determine the JJDPA rules on racial disparities.

In June of 2014, at a Congressional field hearing in Rhode Island, former OJJDP Administrator Bob Listenbee said the agency would be making addressing racial disparities its priority for the final two years of the administration. We would have thought putting some teeth in the DMC standards would have been this administration’s biggest objective in the new rules.

Detainment Does Not Require Walls and Locked Doors

Justice also received a lot of comments on the proposed attempt to clarify that, for the purposes of JJPDA, a youth was considered to be detained in any circumstance that they didn’t feel free to walk away from. This largely deals with police who have a youth in a police station or other location.

Justice kept that standard, but in the final rules established several caveats where holding a youth would not be considered detainment.

Justice made clear that there were several exceptions to the rule that allow a police department to keep a child while not considering the action a “detain or confine” situation. These include:

  • Pending transfer to parents or to a child welfare agency
  • Endangered due to mental illness, homelessness or substance abuse
  • Victims of crime
  • Youth who run away, or are abandoned by parents

Universal Monitoring

The proposed plan was that states would have to annually monitor 100 percent of its facilities, a standard that 33 states already adhere to.

In December, ahead of this week’s finalized rules, Justice announced in a letter to states that the 100 percent standard would become final with one caveat: 15 percent of that 100 percent monitoring can be extrapolated in a “statistically valid manner.”

Click here to read the entire finalized rule document in the Federal Register.

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John Kelly
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John Kelly is editor-in-chief of The Chronicle of Social Change.