The Curious Case of the Nonparticipating States

The Office of Juvenile Justice and Delinquency Prevention (OJJDP) recently issued a $10.4 million funding competition that on first blush shocked Youth Services Insider. It was a request for proposals (RFP) from nonprofits or local governments in states that are not participating in the Juvenile Justice and Delinquency Prevention Act (JJDPA), through which state juvenile justice agencies receive grants in exchange for complying with four standards in their treatment of youths.

Heretofore, only states that had chosen to opt out of the JJDPA were involved in the “nonparticipating states” competition. And for a long time, there was only one holdout – Wyoming. But this year’s RFP included seven states, along with three U.S. territories.

So YSI’s initial reaction was: The exodus away from JJDPA has begun!

It is no secret that there’s apprehension about that happening. The funding attached to participating has dwindled since the mid-2000s – though it has ticked up a bit recently – while changes to the law itself and compliance rules have made participation harder. So it was alarming to see that the number of states that were out on JJDPA had more than doubled since last year. But the real story is a little murkier than that.

First, a brief primer for those not familiar with the JJPDA. States that participate agree to comply with four “core protections” pertaining to the treatment of young people involved in the system:

  • Not locking up youth for committing status offenses, which includes crimes like truancy that would not be considered a crime for an adult.
  • Removal of juvenile offenders from adult jails and prisons, with very limited exceptions.
  • In those very limited exceptions, sight and sound separation of juveniles from adults in facilities.
  • Making efforts to research, identify and address disproportional minority contact in the juvenile justice system.

It is pretty much the only set of federal standards specifically related to juvenile justice. A state receives its formula grant from OJJDP for monitoring those four things – 20 percent of the grant just to monitor, and 20 percent each for complying with the requirements.

If a state opts out of participation, it is not eligible to receive the formula grant. Instead, the money is competed out to nonprofits or local government entities within the state.

As mentioned, Wyoming has been in this boat for decades. In the past two years, Nebraska and Connecticut have joined the Cowboy state. So it is no surprise that these states were included in the nonparticipant RFP.

Caren Harp, Administrator, Office of Juvenile Justice and Delinquency Prevention, speaking at a meeting of the National Association of Counties. Photo: NACO.

The other four states listed are: Arkansas, Massachusetts, Texas and West Virginia. But none of them has walked away from participation in the law. According to OJJDP Administrator Caren Harp, these states were found incapable of accurately reporting on compliance based on what they presented as a monitoring process.

They “have been ruled ineligible by OJJDP,” said Harp, who was appointed by President Trump to lead the office in 2017 and sworn in in 2018. “This means the agency has determined that they are not sufficiently prepared to monitor compliance of the law. ”

To make things even more complicated, not all of the ineligibility is from fiscal 2019. The Arkansas ineligibility goes back to 2011, and West Virginia was ruled ineligible for fiscal 2018. Some of the money in this competition for those states is sourced to those years – $600,000 in Arkansas, and $380,000 in West Virginia.

OJJDP has tripled the annual rate of audits on state systems, and “are trying to clean up all the mechanics and administrative stuff internally here with an eye toward easing their burden on administering this,” said Harp, in an interview with YSI. “We take the view that the act needs to be enforced, and that only states that are eligible can receive the funds.”

Massachusetts was ruled ineligible for 2019, and the RFP puts out $729,000 for the state. But the biggest enchilada is Texas, obviously the largest system on the list, which has been ruled ineligible for the past two years. OJJDP anticipates making several awards totaling about $7.5 million, the total amount of Texas’s formula grant for both years.

Both Texas and Massachusetts were initially awarded funds for 2018, according to OJJDP, but the grants were put on hold and the states appealed the finding of ineligibility. With both appeals lost, the money was put into this RFP.

Three U.S. territories are also listed on the RFP: American Samoa, Guam and the Northern Mariana Islands. American Samoa is listed for its 2019 grants, and the other two are pegged to ineligibility in 2017.

All of the funds available through the non-participating state RFP must be spent on efforts to address those four requirements of the Juvenile Justice and Delinquency Prevention Act.

Harp said that while none of these states has walked away from the Juvenile Justice and Delinquency Prevention Act, the recent struggles in these three states is cause for concern about future participation.

“We hear consistently from states that [JJDPA participation] is too cumbersome and cost prohibitive to administer effectively,” said Harp. “It has been that way for years, and we understand that.”

The funding for participation – which is apportioned based on the youth population of each state – has dwindled since the turn of the century. In 2002, states shared about $90 million under what is called the Title II Formula grant. That had fallen to $62 million by 2011, then plummeted to $40 million in 2012. It has since ticked back to $60 million for 2019.

Meanwhile, a recent reauthorization of the JJDPA added some more requirements on the part of states, and rules finalized by the Obama administration in its last few months tightened the screws on compliance determinations.

The penalty for failing to comply with any of the four requirements is a 20 percent cut to a state’s grant allocation. And that 20 percent goes back into a fund that the federal agency can partially use for technical assistance, and partially use for topping off grants to the states in full compliance with JJPDA.

This has all caused some concern that, given the choice between pursuing compliance for a small state grant or letting the funds go to a local entity, some systems will look at the cost-benefit and say, “Let’s just let some nonprofits and local courts compete for this money.”

“That’s been my concern since I got here,” Harp said. “The harder we make administrative burdens on states, and the costs of complying with this act … the more likely [that] states will pull out. That hasn’t truly started to happen yet, but doesn’t mean it won’t.”

The RFP has some juvenile justice advocates worried that the administration is not genuinely trying to maintain the connection between states and the JJDPA.

“I’m still not aware why [Administrator Harp] would roll this into a non-participating state grant instead of helping them get into eligibility compliance?” said Campaign for Youth Justice CEO Marcy Mistrett. “It’s completely backwards.”

Asked if this administration wants to see states remain in the act, Harp said, “Absolutely, we want states in the act. When a nonparticipating state says we’d like to come back in … we’re ready to do whatever to try and support them and provide technical assistance to them.”

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John Kelly, Editor in Chief, The Chronicle of Social Change
About John Kelly, Editor in Chief, The Chronicle of Social Change 1205 Articles
John Kelly is editor-in-chief of The Chronicle of Social Change. Reach him at