The Justice Department last week published proposed new rules related to the Juvenile Justice and Delinquency Prevention Act (JJDPA) that will require most states to make significant improvements or face the loss of federal funds at a time when the appropriation has dropped significantly.
The changes to the central mechanism for federal juvenile justice funding come amidst uncertainty about reauthorization of the bill, and after a decline in federal funding for the act.
Every state but Wyoming participates in the JJPDA, which funds states based in part on their adherence to four core juvenile justice standards:
- Not detaining status offenders (DSO).
- Keeping most youth out of adult jails.
- Sight/sound separating them from adults in rare instances where they are in jail.
- Addressing disproportionate minority contact in the state.
Each state gets 20 percent of its “Title II Formula Grant” from the Office of Juvenile Justice and Delinquency Prevention (OJJDP) just for participating in the act, and the other 80 percent is contingent on fidelity to those standards (20 percent for each).
There are three notable changes proposed in the Justice Department’s new rules. Two are simple to explain; the other is a bit more complicated. Here are the easy ones:
- Monitoring Universe: From now on, each state must report annual data from 100 percent of its juvenile and adult facilities (there are five individual categories of them). There are already 33 states that meet this mark, according to the proposed rules; the other 11 “report data from less than 95% in at least one of the five categories of facilities.” That is an absurdly vague way of putting it, since that actually means 11 states report on anywhere between 0 and 95 percent of each facility type. So YSI will look into how far most of those states are from 100 percent collection.
- Addressing Disproportionality: OJJDP already has informally implemented a five-phased reduction framework for gauging state progress on identifying, addressing and tracking the presence of disproportionate minority contact (DMC) in the juvenile justice system. The rules simply codify that model as the standard for measuring DMC.
The more substantial change is that the proposed rules replace the litmus test for compliance with three of the four standards. And it does so in a way that would immediately render almost every state out of compliance in at least one area.
As is, states are found to be compliant with the JJDPA requirements by meeting a “de minimis” standard, meaning that something slightly less than 100 percent is tantamount to compliance.
Under the new rules, those standards are wiped away, and replaced with a “substantial compliance test.” Instead of a flat de minimis standard for all states, they will now be measured based on a reflection of best practice on each of the three standards.
To accomplish this, Justice 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.
In actuality, this is just a new way at arriving at a de minimis standard, but it’s a significant recalculation. Here is how things would change, based on some figures in the proposed rule and other data shared with Youth Services Insider.
Detainment of Status Offenders (DSO)
Current Standard: Less than 5.8 per 100,000 of a state’s under-18 population, with some additional exceptions that can allow a state to gain compliance even if it is five times over the de minimis rate.
Proposed Standard: .24 per 100,000 without exceptions, a 95 percent decrease.
Current Compliance: 2 states out of compliance
Under New Rules: 43 states out of compliance
Current Standard: Less than 9 per 100,000
Proposed Standard: .12 per 100,000, a 98 percent decrease.
Current Compliance: 4 states out of compliance
Under New Rules: 41 states out of compliance
Current Standard: A state can’t have more than two incidents in which youths were in the presence of adult offenders in confinement settings.
Proposed Standard: Zero permitted incidents.
Current Compliance: 3 states out of compliance
Under New Rules: 8 states out of compliance
A few other YSI musings about the new rules:
We have to think that these rules are the byproduct of two things. First, JJDPA has not been reauthorized since 2002, and the proposition that Congress would move its own update on JJDPA has grown dubious. The Senate Judiciary keeps passing JJPDA bills that go nowhere, and the most significant progress on the House side was an informal juvenile justice hearing that wasn’t even really about JJPDA.
Second, Senate Judiciary Chair Charles Grassley (R-Iowa) hammered the Justice Department for OJJDP’s compliance monitoring practices after a whistleblower presented him with evidence of questionable practices related to Wisconsin. Office of Justice Programs chief Karol Mason promised Grassley updates to the compliance process at a hearing in April of 2015.
So with President Obama’s tenure coming to a close, proposed regulations had to come out now in order for the administration to preside over the consideration of public comments and implementation of final rules.
Room for Negotiation
The language in the proposed rules argues that JJPDA has effected tremendous positive change on the core requirements since the 1990s, and so it is now time to raise the bar for federal incentives.
But many states are certain to see the “substantial compliance” shift as too much, not accounting for year-to-year fluctuations. To that end, one of the 12 states used to calculate the jail removal substantial compliance standard, based on its 2013 performance, would be out of compliance now.
“While I appreciate the recognition of the good work of states over the past 20+years … I find OJJDPs new definition of ‘substantial compliance’ as initially proposed, an unreasonably high bar,” said one state official, in an e-mail to YSI.
The official also told YSI that OJJDP Administrator Bob Listenbee made it clear on a conference call that the proposal was an opening salvo, and that the administration would be “very interested in hearing feedback and alternative methods for calculating compliance via public comment.”