The Criminal Justice Reform That Could Actually Reach Obama’s Desk
In a year of inaction, a bill that changes the way we treat juveniles makes some headway.
by Eli Hager, The Marshall Project
September 22, 2016
Even though the year began with strong bipartisan support for federal sentencing reform, no major changes to the criminal justice system have made it out of Congress thanks to a combination of legislative gridlock, election-year rhetoric about rising crime in some cities, and Republican reluctance to hand President Obama a major victory.
But on Thursday, the House of Representatives quietly—and overwhelmingly passed what might be the most significant justice reform measure to reach Obama in his tenure.
The bill is an update of the Juvenile Justice and Delinquency Prevention Act, which has been expired since 2007. It would withhold federal funding from states that hold minors in adult jails. Unlike previous versions of the law, the new bill would extend that protection to juveniles who have been charged with adult crimes but are still awaiting trial.
The legislation would also ban states from locking up minors for so-called status offenses—things that are crimes only because of the age of the offender, such as truancy or breaking curfew. The law also would extend to cases in which minors are charged with only a status offense but jailed for violating a court order connected to the case. That previously had been an exception.
“I’m delighted, but also optimistic,” said Rep. Bobby Scott (D-Va.), a lead sponsor of the bill. “Getting a law passed on justice issues—one that doesn’t go backward—has been a challenge, to say the least. But we ought to be able to conform the House and Senate versions and get this to the president” before his time in office runs out.
The Senate version of the bill has made it out of committee and has almost unanimous support. But it still faces an obstacle in Sen. Tom Cotton (R-Ark.), who has singlehandedly blocked the measure from being put to a quick voice vote. Cotton’s home state, Arkansas, locks up minors for running away and other status offenses at a disproportionately high rate, Mother Jones reported this week.
A spokeswoman said Cotton is concerned the proposed law would erode the power of the bench. “It is prudent to allow states to determine if their judges—often in consultation with the parents and attorneys involved—should have the discretion to order secure confinement as a last-resort option,” Cotton spokeswoman Caroline Rabbitt said.
Sens. Charles Grassley (R-Iowa) and Sheldon Whitehouse (D-R.I.), the lead proponents of the bill on the Senate side, have been trying for months to reach a compromise with Cotton. If their effort fails, it would fall to Majority Leader Mitch McConnell (R-Ky.) to take up precious floor time—in a season devoted to reaching a spending deal and funding the fight against the Zika virus—with a debate and vote on the legislation.
“Since it so closely resembles the Senate bill, Chairman Grassley is optimistic that it can be passed in the Senate,” said spokeswoman Beth Levine.
Either way, the bill’s passage through at least one chamber comes at a surprising time: right before the election. From the heated Republican primary race through his doomsday speech at the party’s national convention in July, Donald Trump has made the specter of rising crime a prominent issue in his campaign—and the chances of substantive criminal justice reform at the federal level have faltered accordingly.
But despite the status of many bills to reform the adult system, the juvenile bill still enjoys broad bipartisan support.
“It took this long more out of inertia than opposition,” Scott said. “We kept bringing it up—‘juvenile justice, juvenile justice’—and I think we just wore them down.”
As reforms go, the changes are not radical.
“This is the floor, the minimum of how we should treat children,” said Marcy Mistrett, the CEO of the Campaign for Youth Justice, which has been lobbying Congress to pass the bill since 2007.
The JJDPA law has existed in various forms since 1974 and provides federal grants to states on the condition they adhere to several “core principles” for detaining youth: not in adult facilities, not for status offenses, and not in ways that impact different racial groups differently. But over time, loopholes have been added to the legislation, all of which the new, reauthorized bill aims to close.
States that do not want to comply with the new law, should it pass, could choose to forgo a portion of their federal funding, a modest $92 million per year to be shared across the country—assuming Congress agrees to appropriate the money. The bill also does not contain a key goal for reformers of the juvenile system: restricting the use of solitary confinement in youth prisons.
But the bill would require states to collect new data on racial disparities at every stage of the juvenile system and to present the federal government with a concrete plan for how they will address those divides. It would also require states to ensure that academic credits and transcripts are transferred, in a timely fashion, between schools and juvenile-detention facilities, and that children get full credit toward graduation for any schoolwork they completed while incarcerated.
Finally, the legislation would ban the shackling of pregnant girls, provide funding for delinquency prevention and gang-intervention programs, and require states to report data on juvenile recidivism rates and other measures.
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