Quarterly Meeting Agenda
Friday, September 10, 2004
Robert F. Kennedy Department of Justice Building
Quarterly Meeting Summary
September 10, 2004
Robert F. Kennedy Department of Justice Building
This Quarterly Meeting of the Coordinating Council on Juvenile Justice and Delinquency Prevention provided Council members and the public with information on the federal custody of juvenile offenders, nonoffenders, and undocumented juveniles. The Council heard presentations on the National Center for Juvenile Justice Study of Juveniles in the Federal Criminal Justice System from William Sabol of the National Center for Juvenile Justice, the Juvenile Justice and Delinquency Prevention Act of 2002 and its core requirements from Dennis Mondoro of the Office of Juvenile Justice and Delinquency Prevention (DOJ), and juveniles in the Federal Bureau of Prisons system from Alex Escarcega, Juvenile Services Administrator, Federal Bureau of Prisons (DOJ). In addition, Walter Lamar, Acting Director, Law Enforcement Services, Bureau of Indian Affairs, Department of the Interior, spoke about juvenile justice in Indian country. Council members offered feedback regarding these presentations on federal custody of juveniles. The Council reviewed the status of action items from the June 4, 2004, Quarterly Meeting and continued a discussion on the Final Report of the White House Task Force for Disadvantaged Youth. The new Council Web site was announced: www.juvenilecouncil.gov.
U.S. Department of Justice (DOJ)
White House Office of National Drug Control Policy (ONDCP)
U.S. Department of Labor (DOL)
U.S. Department of Education (ED)
U.S. Department of Health and Human Services (HHS)
U.S. Department of Housing and Urban Development (HUD)
U.S. Department of Homeland Security (DHS)
Corporation for National and Community Service (CNCS)
Welcome and Introductions
Mr. Flores welcomed Council members and members of the public to the Quarterly Meeting of the Coordinating Council on Juvenile Justice and Delinquency Prevention and thanked them for attending. He noted increased numbers of members of the public and staff from various agencies in attendance who are interested in the work of the Council and report back to their agencies and constituencies. Members introduced themselves and their staff members.
Mr. Flores expressed his appreciation to Council members and their agencies for increasing their involvement recently in the Council's efforts ranging from mental health issues for juvenile delinquents and truancy to departmental research agendas. He recognized the work of Timothy Wight, Director, Concentration of Federal Efforts, in increasing this level of partnership. Regular meetings, with followup between meetings, has helped the Council's work progress far beyond what it was a year ago. Mr. Flores wishes to continue making the Council responsive to not only the mission and goals of the U.S. Department of Justice (DOJ), but also the issues related to the needs of children. He asked, how can the Council be useful to the programs and departments represented on it?
Mr. Flores announced that the U.S. Departments of Education (ED), Justice, and Labor (DOL) will cosponsor the first federal conference on truancy in December 2004. It is appropriate that the U.S. Department of Health and Human Services also participates in the conference because truancy, especially at young ages, is a red flag for possible neglect and abuse issues in the family. Regarding issues related to older children, DOL can help motivate high school students to stay in school by promoting such job-related offerings as job training and college.
The U.S. Department of Health and Human Services (HHS) will lead an effort, with the support of Council members, to address the issue of insufficient mental health services for incarcerated youth. A national drug control policy is in place and has an impact on all the federal agencies on the Council, including ED, HHS, DOL, and the U.S. Department of Housing and Urban Development (HUD). The Council will continue to address the issues of law enforcement, security, and the need for prevention and positive intervention related to illegal drugs.
Mr. Flores thanked the practitioners on the Council for their involvement and suggestions to Mr. Wight, Mr. Flores, and other Council members and hoped that they would be encouraged by the progress to be made in the future.
Review of Status of Action Items From June 4, 2004, Quarterly Meeting of the Coordinating Council
Timothy Wight announced that HUD and ONDCP have named new representatives to the Council, Matthew P. Braud (HUD) and Tad Davis (ONDCP), who introduced themselves at the start of the meeting. Mr. Charles Simms recently tendered his resignation from the Council. The Council, therefore, has a vacancy for a practitioner member to be appointed by the Senate, which may be filled by the December 2004 meeting.
Mr. Wight led a discussion regarding the status of the action items from the June 4, 2004, Council meeting. The Council Planning Team, the formation of which was recommended and adopted at the June 2004 meeting, will help the Council plan meetings, implement decisions, and coordinate activities. The Team held its first conference call on August 4 and included John Pogash (DHS), Adrienne Eldridge-Bailey (DOL), Camille Welborn (ED), Matthew Braud (HUD), John Foster-Bey (CNS), Javier Cordova (ONDCP), and Timothy Wight (DOJ). During the call, the Team completed three tasks: (1) reviewed and updated outstanding action items from past Council meetings, reviewed and made comments to changes to the Council logo and Web site, and (3) reviewed and discussed the agenda for the September 10, 2004, meeting.
Reviewed and updated outstanding action items from past Council meetings. On March 19, 2004, the Council agencies agreed to coordinate efforts to address truancy, provide information for a strategic planning tool, assist in a study requested by Congress about linkages between the child welfare and juvenile justice systems, and address a U.S. Government Accountability Office (GAO) report on child welfare and juvenile justice. The status of these action items follows.
As a followup to the GAO report, the Senate Committee on Governmental Affairs, chaired by Senator Susan M. Collins of Maine, released a report that recognizes a significant number of children in custody who are waiting for community mental health assessments until resources are made available to them. The states are not yet fully engaged. The first step is to assemble information and confirm the data as a basis to move forward. Mr. Flores also encourages practitioner members to communicate their concerns and suggestions about this issue directly to HHS through Mr. Winstead or OJJDP through Mr. Wight or himself.
Mr. Wight continued the discussion with the following agenda and action items from the June 4, 2004, Council meeting:
The Council consented to remove the six above-mentioned action items from the agenda.
Future Council meetings. Mr. Wight announced the next Council meeting will be held at the DOL main building at 200 Constitution Avenue, N.W., Washington, D.C., on December 3, 2004. The spring 2005 meeting will be held at the Department of Education on Maryland Avenue, Washington, D.C., on March 4, 2005. The summer 2005 meeting will be held at HUD in Washington, D.C., on June 3, 2005.
New Council Web site, www.juvenilecouncil.gov. Mr. Wight directed the members' attention to the display of the Council's Web site, which has a new address: www.juvenilecouncil.gov. The Army Institute of Heraldry, a group that designs seals for the federal government, redesigned the Council's seal, which is prominently displayed on the Council Web site. Aspen Systems Corporation redesigned the site, using the design of the new seal as a basis for the design of the Web site. On the home page, Council members are listed on the left margin and the main headings to the right are About the Council, Member Information, Meetings, Resources, and Contact Us. Mr. Wight thanked the Council Planning Team for reviewing the designs for the seal and Web site. The Web site address was changed to reflect the independent nature of the Council and make it clear that this is the federal government's, not DOJ's, program to coordinate juvenile justice and delinquency prevention efforts within federal agencies. He requested contributions from Council members on department-specific plans and activities for the Web site. Mr. Flores indicated that Aspen will review Council members' departmental Web sites to determine if any information from them could potentially be added to the Council Web site. He urged members, especially practitioner members, to visit the Web site and ask themselves how it could be made more useful to them. Because federal agency Web sites are extensive and complex, it can be difficult for users to find information relevant to them. The juvenilecouncil.gov Web site is an opportunity to highlight items specific to the needs of the Council and its constituencies—and add links to relevant resources.
Review and Discussion of Written Public Comments to the Council
Two written comments were submitted in response to the Federal Register notice for the September 10, 2004, meeting of the Coordinating Council on Juvenile Justice and Delinquency Prevention. A summary of each comment and the Council's discussion related to it follow:
Juvenile-perpetrated domestic violence. A staff person with the Hillsborough County [ Florida] Domestic Violence Task Force submitted a written comment in regard to the need to broaden the response to domestic violence in the United States. The domestic violence system is designed to protect the victim from the perpetrator. However, increasingly, older juveniles are being arrested for domestic violence, and the goal of the juvenile justice system generally is to reunite juveniles who are arrested with the family. The two goals collide. The parent, who is often afraid, must be protected, but the youth often has not committed a serious enough offense to justify long-term incarceration.
Mr.Winstead noted that the Florida Department of Juvenile Justice, Department of Children and Families (which houses the domestic violence program), and Governor's Council on Domestic Violence are working on this issue. He suggested that the Council also share feedback from its members with these agencies and seek information regarding their plans as well. Mr. Wight will follow up on this suggestion.
A Council member questioned whether the Family Justice Center received its funding from OJJDP. The center receives its funding through the Office on Violence Against Women through the FY 2004 President's Family Justice Center Initiative, a grant that focuses on services for victims of domestic violence.
Role of juvenile assessment centers in addressing systemic challenges of juvenile justice systems. The director of the Miami-Dade County Juvenile Assessment Center submitted a written comment highlighting assessment-related improvements made to the local juvenile justice system in Miami-Dade County and how those improvements can be replicated nationally. Mr. Flores noted that effective assessment tools now exist so that schools, Head Start programs, nutrition programs, emergency medical services, and other entities outside the justice system could intervene early on if they had access to the assessments, thus preventing entry into the juvenile justice system. Information gained from assessments should be made available to other agencies so that assessments do not have to be repeated.
The group discussed several issues related to assessment and the written comments from the Miami-Dade County Juvenile Assessment Center, including trends in funding treatment, supplanting state funds with federal funds, further information about the Miami-Dade County program, and the new movement to assessing strengths among juveniles.
The director of the Miami-Dade County Juvenile Assessment Center stated in his written comments, "Children's mental health and adolescent substance abuse treatment funding has been decreasing." Although the Council is not able to assess the state or local funding status in Florida, Don Winstead stated that overall federal mental health and substance abuse prevention block grant funding and Medicaid funding have been increasing. He said funds, however, may get diverted when they arrive and are used at the state level.
One Council member noted that some programs are dependent on private funding, such as the United Way, which seems to have decreased recently. Under the President's initiative, Access to Recovery grants, funded at $100 million for 15 grants this year, include a grant for adolescent programs. Administrators expect the program will receive $200 million in 2005, enabling them to increase the number of programs.
Because state budgets are being squeezed and some are mandated to balance their budgets, a concern arose about the possibility of supplanting state funds with federal funds. Mr. Flores clarified that supplanting state money with federal money is not allowed. All federal grant programs stipulate this in their requests for proposals and are on the alert for supplantation during the review process.
How can we promote the use of these assessments and interventions earlier in the process? asked Mr. Flores. Treatment in later stages and ages is costly and not as efficient. The Council must help those who allocate scarce resources understand that early intervention is a good investment. And, once early intervention resources (in the form of beds, etc.) are created, we must keep them open for children and not use them for adults. This must be done carefully because we want to avoid an "us against them" mentality.
A Council member requested that OJJDP follow up with Wansley Walters, director of the Miami-Dade County Juvenile Assessment Center, to obtain a more detailed statement regarding funding for its agency. The Council also wishes to learn more about the model approach, including how it was developed, how it is working, and how it changes the way in which they deliver services.
Larry Brendtro raised a new development in juvenile assessment—a movement away from assessing risks, deficits, and disorders and toward assessing resilience, strength, and development. Dr. Seita with the Land Grant network has worked with this new approach and can address the Council on how to build strengths in children who appear not to have any. (Dr. Seita moved from being a juvenile offender in the juvenile justice system to the world of academic social work.)
Council Discussion on Selecting Recommendations to Address From the Final Report of the White House Task Force for Disadvantaged Youth
Council members first discussed three recommendations from the Final Report of the White House Task Force for Disadvantaged Youth, all of which relate to evaluation and fall under the section Holding Programs Accountable for Results:
Mr. Flores suggested that a primary goal is to encourage states to perform their own evaluations in their formula and block grant programs. His office will raise this issue with the Juvenile Justice Advisory Committee, which is composed of all the State Advisory Groups in each state, and ask them to develop a plan to include evaluation in their programs.
Because many states do not have performance measures for block grants in place, they could benefit from a prototype of basic performance measures that they could use as a template and modify to suit their state's needs. However, first funding must be identified for this evaluation work to be done by the states. OJJDP and the Council could suggest how they could use a portion of the block and formula money, along with additional federal money for evaluation efforts.
The Department of Education has performance measures in place for its grantees; some programs' statutes require them, and other programs had them imposed administratively by the department. HHS also requires performance standards and requirements with its major grant programs. HHS is working currently with the Office of Management and Budget (OMB) to develop overarching standards to help increase the rigor of the evaluation. This OMB effort is governmentwide and therefore may have implications for all federal grant programs. Legislators may earmark grants to selected grantees, sometimes with "few strings attached," presenting special problems regarding this issue of increasing the rigor of evaluations. The Council may want to contact OMB and obtain information regarding their evaluation standards initiative as a basis for its efforts with juvenile justice grants.
The Council agreed to have each agency report the activities they currently have underway related to 12 recommendations from the Final Report of the White House Task Force for Disadvantaged Youth, not just the 3 recommendations related to evaluation. (This may include cooperation with OMB on its Common Measures program.) Mr. Wight will request written submissions from all Council members within 45 days, and the information gathered will be shared at the December 2004 Council meeting.
Presentations on the Federal Custody of Juvenile Offenders, Nonoffenders, and Undocumented Juveniles
Three speakers gave presentations on the federal custody of juvenile offenders, nonoffenders, and undocumented juveniles: William Sabol of the National Center for Juvenile Justice, Dennis Mondoro of OJJDP, and Alex Escarcega of the Federal Bureau of Prisons.
NationalCenter for Juvenile Justice Study of Juveniles in the Federal Criminal Justice System
The research discussed by Dr. Sabol on juveniles in the federal criminal justice system was supported by a grant from the National Center for Juvenile Justice while he worked at Case Western Reserve University. Although Dr. Sabol currently works for GAO, in the interests of full disclosure, he stated that he was presenting at the Council meeting the research conducted while he worked on a project with the National Center for Juvenile Justice, a grantee of OJJDP.
Dr. Sabol's remarks centered around two themes related to juveniles in the federal justice system: (1) the arresting of juveniles and other young persons by federal criminal justice officials, (2) and the sentencing of juveniles as adults under the federal sentencing guidelines.
The numbers of juveniles in the federal criminal justice system are relatively small when compared with adult offenders and vary with the definition of juvenile. Approximately 300 to 400 juveniles under the age of 18 (or, stated another way, 1,200 to 2,400 juveniles age 18 and under) are arrested each year under the federal system. Total arrests per year in the federal system come to 120,000. Juveniles account for 2 percent or less of total arrests in the federal justice system; in the state and local justice systems, juveniles account for 18 to 20 percent of total arrests.
In the 1990s, the data began to show changes in who was arrested, what they were arrested for, who was prosecuted, and who went on to federal prison.
The study posed several research questions: What have been the trends in federal arrests of young persons, including type of crime, arresting agency, citizenship status, departure status, and type of sentence imposed? How do arrests of juveniles in the federal system compare with arrests of juveniles by state and local authorities? What laws, policies, and approaches to prosecution are correlated with those arrests? A similar set of questions relating to sentencing were also posed.
The Federal Justice Statistics Program (FJSP), managed by DOJ's Bureau of Justice Statistics, gathers data from federal criminal justice agencies, including the U.S. Marshals Service, Executive Office for the U.S. Attorney, Administrative Office for U.S. Courts, U.S. Sentencing Commission, and Bureau of Prisons, among others. FJSP analyzes data from these many sources and puts them in a common format so that researchers can perform sophisticated analyses of case processing from arrest and prosecution to sentencing and view trends over time. It is also possible to track individual juveniles over time and as they move through the criminal justice system.
Beginning in 1996, immigration offenses increased dramatically, peaked in 1998, and then decreased somewhat; violent offenses decreased; and drug offenses (mostly trafficking) fluctuated slightly near the level of immigration offenses. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 increased funding for policing along the border by the Immigration and Naturalization Service (INS) and the Border Patrol, which may help explain the changes occurring in the late 1990s. The number of INS agents grew from 12,000 to 17,000 agents, and two-thirds of the additional officers were stationed at the border.
What might explain this decline in violence federal offenses? A U.S. Attorney in Texas, who was dealing with the increase in juvenile crime in the 1990s, proposed that the federal government use RICO (Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §1961–1968) statutes to address gang violence, particularly with crack cocaine offenses. He argued that a gang is analogous to a criminal enterprise that involves interstate commerce and other relevant elements. However, no data support the theory that U.S. Attorneys used the RICO statutes in this way. The 1996 welfare reform act with its time limits for benefits and work requirements may have influenced the data, but Dr. Sabol was not aware of any such data.
While immigration offenses by juveniles predominate within the federal system, property and status offenses by juveniles predominate within state and local systems. The numbers of both property and status offenses by juveniles have decreased since 1994.
Since 1994, a shift has occurred in the type of drugs involved in federal arrests for drug crimes: cocaine arrests have declined and marijuana arrests have increased. From 1998 to 2000, the percentage of federal arrests of U.S. citizens and non-U.S. citizens converged at around 4.5 percent. By 2001, after the immigration act, noncitizens comprised a larger share than citizens; a similar pattern held for drug crimes, perhaps due to increased border patrol.
Patterns for arrests and sentencing are very similar. Sentencing data include persons 18 and under at the time of sentencing, which is a fairly reliable marker for juveniles who are charged as adults. While immigration offenses predominated in arrest data, drug offenses predominated in sentencing data. Since 1994, the number of U.S. citizens sentenced declined and the number of non-U.S. citizens sentenced increased. The increase in marijuana sentencing and decrease in cocaine sentencing mirrors the arrest data. About 80 percent of juveniles are sentenced to prison among federal cases, and 20 percent to probation.Under federal sentencing guidelines, prosecutors can recommend that a judge depart from the guidelines and reduce the length of the sentence if the defendant can give substantial
assistance or cooperate with the prosecutors in other cases. Juveniles, however, are less likely to receive a departure from the guidelines than adults because they are lower in the criminal organization and do not have much bargaining power with prosecutors. On the other hand, judges in drug cases are more likely to grant juveniles than adults such a downward departure.
Dr. Sabol believes that the proportion of arrested juveniles transferred to the adult court is higher in the Federal system than in state and local systems.
Dr. Sabol's full report includes data broken down by ethnicity and race. In the early 90s, a BJS report indicated that Indians predominated among federal juveniles and young persons. Later, following the immigration reform act, Hispanics predominated and Indians became a minority.
An Overview of the Juvenile Justice and Delinquency Prevention Act of 2002 and the Core Requirements
The Juvenile Justice and Delinquency Prevention (JJDP) Act of 1974 was enacted to help state and local governments prevent and control juvenile delinquency and to improve the juvenile justice system. The 1974 JJDP Act also aimed to protect juveniles in the juvenile justice system from inappropriate placements and from the harm—both physical and psychological—that can occur as a result of exposure to adult inmates. A third element of the act emphasized the need for community-based treatment for juvenile offenders. These goals were reaffirmed in the reauthorization of the JJDP Act in 2002.
The 2002 JJDP Act established the following four core protections with which participating states and territories must comply to receive formula and Title V Community Prevention grants under the act:
Deinstitutionalization of status offenders. The 1974 JJDP Act required states to "provide within three years... that juveniles who are charged with or who have committed offenses that would not be criminal if committed by an adult (i.e., status offenders), shall not be placed in juvenile detention or correctional facilities, but must be placed in shelter facilities." A 1977 amendment to the act included nonoffenders such as dependent and neglected youth, who did not have to be placed in shelters. In 1980, Congress specified that status offenders and nonoffenders must be removed from "secure" juvenile detention and correctional facilities and prohibited juveniles—including accused and adjudicated delinquents, status offenders, and nonoffenders—from being detained in adult jails and lockups. The 1980 amendment allowed states to detain or confine status offenders in secure juvenile facilities for the violation of a valid court order. The 2002 JJDP Act stated the following three exclusions from the DSO requirement:
In addition, the 2002 Act states that "juveniles who are not charged with any offense and who are aliens or alleged to be dependent, neglected, or abused shall not be placed in secure detention facilities or secure correctional facilities."
Clarification was requested regarding the exclusion of aliens in compiling data for determining compliance. Mr. Flores explained that a state not in full compliance will not receive a reduction in Formula Grants funds if their noncompliance was due to holding aliens in secure custody.
Separation of juveniles from adult offenders. The original JJDP Act of 1974 sought to separate adult inmates and juveniles in institutional settings such as jails, lockups, prisons, and other secure facilities. The JJDP Act of 2002, as amended, provided that "juveniles alleged to be or found to be delinquent," as well as status offenders and nonoffenders, "will not be detained or confined in any institution in which they have contact with adult inmates." Contact includes any physical or sustained sight and sound contact. (Inadvertent contact is admissible.) Sight contact is defined as clear visual contact between adult inmates and juveniles within close proximity to each other, and sound contact is defined as direct oral communication. The 2002 Act further mandates a state policy that requires individuals who work with both such juveniles and adult inmates to be trained and certified to work with juveniles.
Removal of juveniles from adult jails and lockups. In an effort to protect juveniles in custody and to meet the 1974 separation requirement, jail officials sometimes placed juveniles in solitary confinement. This practice aggravated the psychological effects of jailing, increased the rate of suicide eightfold, and deprived young people of educational and other services provided in juvenile facilities. In response, Congress established the jail and lockup removal requirement in 1980, which states that "no juvenile shall be detained or confined in any jail or lockup for adults." This requirement was reaffirmed in 2002, with the following exceptions:
Reduction of disproportionate minority contact. In 1992, Congress required that states address the disproportionate minority contact requirement as a condition of receiving a Formula Grant award. The DMC requirement was broadened in 2002.
Each participating state must develop and implement a strategy for achieving and maintaining compliance with the four core protections as part of its annual Formula Grants State Plan. Failure to achieve or maintain compliance reduces the Formula Grant to the state by 20 percent (in the subsequent fiscal year) for each core requirement not met. In addition, the noncompliant state must agree to expend 50 percent of the state's allocation for that year to achieve compliance with the noncompliant core requirement(s).
As part of the strategy for maintaining compliance, states must provide for an adequate system of monitoring to ensure that the core protections are met. States must visit and collect information from secure facilities and annually submit a Compliance Monitoring Report to OJJDP.
When asked by a Council member how state laws interact with the federal laws regarding protection of juveniles, Mr. Mondoro replied that some states have adopted verbatim the federal statutes and, on the other hand, some states allow, for example, for the holding of status offenders in jails and lockups. When a conflict arises between state and federal law regarding the incarceration of juveniles and federal grant funding is involved, the federal statutes take precedence.
In all, 10 states have been sanctioned for noncompliance with the core requirements: 3 regarding DSO, 3 regarding separation, 2 regarding jail removal, 1 regarding monitoring, and 1 regarding nonparticipation.
A question arose about the term valid court order: How can states and localities make sure they are valid? The legislation provides for a detailed process to be followed when a juvenile violates a court order. This process includes an in-person interview to determine whether detention is needed and a court hearing within 48 hours, in which a judge is apprised of the interview and determines whether the child is at risk to harm himself or herself, harm the property of others, or harm others. Most states can easily claim the valid court order exception.
Because the four core requirements pertain only to federal formula and block grants to states, the federal justice system is not required to comply with them.
A recent annual report of OJJDP activities includes details on the first three core protections (DSO, separation, and jail removal) but offers little specific data about the fourth core protection, reduction of disproportionate minority contact, because, unlike the first three protections, statutorily no hard targets for outcome measures must be met by the DMC protection. Nonetheless, OJJDP has been working with states to collect the data that would be helpful, such as accurate racial breakdowns in detention facilities. Other efforts go far beyond detention facilities, such as those in Washington State, where a top-to-bottom review has been done. Diversion and intervention should be pushed hard to keep some juveniles out of the system entirely. Members of the Council stated that they believe that little progress has been made on the DMC protection and that they would like to support an effort to increase data gathering and compliance by the states on this issue. Mr. Flores agreed and noted that the compliance rates with the first three protections are 90 percent or higher.
OJJDP, through its Formula Grants Program, addresses the issue of disproportionate minority contact, and four or five states have provided data showing modest reductions. Mr. Flores suggested that the Council examine the issue of disproportionate minority contact and make a recommendation to give more emphasis to this fourth core requirement established by the 2002 JJDP Act to protect juveniles in custody.
Juveniles in the Federal Bureau of Prisons System
Mr. Escarcega noted that the Bureau of Prisons (BOP) does not determine which juveniles are committed to the custody of the BOP; BOP control and responsibility begin with the entry of the juvenile into the BOP system. In addition, issues related to prevention and community services do not apply to juveniles under the custody of the BOP.
Mr. Escarcega's presentation focused on federally sentenced juvenile offenders who have been committed to the custody of the BOP.
The issue of BOP consistency with the core protection requirements of the JJDP Act as amended has arisen and was addressed. A 10-page BOP Program Statement, number 5216.05, dated September 1, 1999, which was distributed to Council members, makes reference to the JJDP Act. The purpose of the Program Statement is to establish procedures required for juveniles under the age of 18 and those sentenced under the JJDP Act, including procedures for the following areas:
The statement also clarifies the limitations on placing juvenile offenders in Community Corrections Centers that also house adults and clarifies the use of community service and the amount of subsistence to be paid by employed juveniles. In addition, BOP's Statement of Work (SOW) for Secure and Non-Secure Juvenile Facilities addresses the issue of the protection of juveniles and is available on the BOP Web site, http://www.bop.gov. Finally, BOP accreditation requirements to ensure appropriate correctional practices were discussed.
Two goals were established in 1998 in cooperation with a workgroup formed by DOJ to address the confinement of federal juvenile offenders, especially in Indian country: (1) federal juveniles will be housed in programs near their homes and families, and (2) programs will be in substantial compliance with the Statement of Work for Juvenile Facilities (Secure and Non-Secure). Using monitoring instruments, BOP performs field investigations to determine whether facilities are in substantial compliance by interviewing staff and juveniles and reviewing staffing patterns, education programs, and accreditation. Regarding housing and programs, BOP enters into agreements with state, local, and tribal governments and private organizations to provide services for federal juveniles. The SOW sets forth contract performance requirements for the comprehensive management and operation of secure and non-secure facilities.
The following quote from the JJDP Act of 1974, as amended, reflects the philosophy of the BOP toward juveniles in their custody: "No juvenile committed to the custody of the Attorney General may be placed or retained in an adult facility in which he has regular contact with adults incarcerated because they have been convicted of a crime or are waiting trial on criminal charges."
A question was raised about the difference in wording regarding contact with adults. State requirements under the JJDP Act of 1974 state that "juveniles shall not have contact with adults," and procedures for the custody of federal juveniles state that "no juvenile..." [may have] "regular contact with adults." It is Mr. Flores's understanding that both systems now are identical in this regard and adhere to the higher standard of total separation.
Dr. Brendtro conducted a site visit several years ago to North Dakota, site of the largest BOP contract facility, and learned that juveniles from Florida, Hawaii, Maine, and New Mexico were housed there. This arrangement did not reflect the federal priority of housing juveniles near their homes and families. Mr. Escarcega assured Dr. Brendtro and the Council that changes have been made to the North Dakota facility and that juveniles from, for example, Hawaii are now housed on the West Coast and juveniles from Maine are now housed in Maine. Currently, compliance with the goal of housing juveniles within 250 miles of their home now stands at 94 to 95 percent. Council members urged that appropriate housing be found in Hawaii for juveniles from Hawaii.
The Civil Rights of Institutionalized Persons Act (CRIPA) of 1997 [42 U.S.C. §1997 (1) (B)] authorizes the Attorney General to investigate conditions at juvenile correctional institutions owned by a state or operated on behalf of the state. The SOW requires contractors to keep a copy on file and available for all key personnel and staff. CRIPA states that no juvenile in BOP custody will be housed in a facility that is the subject of ongoing federal litigation or investigation concerning conditions of confinement. BOP has removed federal juveniles from facilities that became the subject of an investigation on several occasions. CRIPA has revealed the lack of medical care, education, access to psychological and dental services; prolonged segregation without cause; repetitive make-work; and other such problems in many facilities.
Programming must be conducive to the rehabilitation of male and female inmates. BOP has very few female juvenile offenders in the system. However, gender-specific programming is available.
Contractors must develop written operational policies and procedures that adhere to accepted juvenile-specific correctional practices. Contractors also must be accredited by the American Correctional Association (ACA) within 24 months within the contract award and, prior to accreditation, must adhere to ACA practices on such issues as staffing, educational services, and library services. Contractors must submit written policies and procedures that meet BOP's requirements for each federal juvenile in custody to receive at least 50 hours of formal quality programming per week, 12 months a year. Formal programming must be meaningful, measurable, and responsive to the educational, cultural, emotional, physical, and spiritual needs of the unique juvenile offender population.
Juveniles with educational disabilities are now helped in the federal system. BOP monitors for compliance with the Individuals with Disabilities Education Act Amendments of 1997 (IDEA) and the No Child Left Behind Act and reviews special education plans, educational records, and individualized education plans. The juvenile services office also consults with the BOP education department and requests outside assistance, including assistance from local school districts, when needed.
August 2004 data on the federal juvenile population are available in the handout (part II, pages 30 and 31) and include information on facilities, gender, ethnicity, sentence procedure codes, citizenship, state of juvenile residence, age, and offenses.
Dr. Brendtro suggested that under the ethnicity category, the non-Native American data be broken down to show the major racial categories, thus making it clear that most federal juveniles are people of color. Mr. Escarcega's point to be made with the ethnicity data, which was broken down only by Native and non-Native categories, was that BOP is dealing primarily with a Native American population and culturally sensitive programming must be available for them. The Council has an opportunity to make a contribution to BOP's work with juveniles regarding, for example, HHS's best practices in helping sexual abuse victims or ED's distance learning programs.
The Council applauded the significant transformations that BOP has undergone since the Council last looked at the issue of federal juvenile justice.
Mr. Escarcega offered to discuss the approach of positive peer culture and how it is used with juvenile offenders around the country at a future Council meeting.
Juvenile Justice in Indian Country
Mr. Lamar first asked the Council to capture the thought that comes to mind when hearing the term American Indian and to hold the thought for later discussion.
The United States includes more than 560 federally recognized tribes, and the Bureau of Indian Affairs (BIA) oversees or directly manages approximately 206 Indian country law enforcement programs. BIA enforces violations of federal statutes and tribal codes and ordinances and has uniformed patrol, criminal investigations, and detention programs in Indian country. Line authority for law enforcement functions came to his office within BIA in 1998.
Approximately 1.5 million American Indians reside on or near the 85 million acres of Indian country in 31 states. (Indian country is a legal term for reservation lands or lands held in trust for American Indians.) Most of Indian country is in geographically remote areas. However, reservation lands can be found near large metropolitan areas, such as Las Vegas, Phoenix, Tucson, Albuquerque, and Miami.
Nearly half of the American Indian population is under the age of 18. Drugs, guns, gangs, teenage pregnancy, suicides, and illiteracy steal American Indian children daily. As drugs and guns pour into reservations in record numbers, these problems go unnoticed. The system of gathering data on American Indians is archaic and does not permit accurate reporting, leaving Indian country without the ability to prepare justifications to seek assistance.
The BIA's system of 74 Indian jails recently received negative attention in local and national newspapers. The Department of Interior Inspector General conducted a review of the jail system and found conditions described as "third world," such as two-way glass installed backwards, toilets that flush from one cell into another cell, broken pipes, malfunctioning locks, nonfunctioning videocameras, poor ventilation systems, inmates drinking from a single bucket of water, and one shower to serve an entire facility. Reasons for the failure are related to management, money, and infrastructure.
Although 12 facilities meet juvenile standards and an additional 12 DOJ-funded facilities are in construction, a great need exists for facilities and programs. Thirty-one facilities were not in compliance with sight and sound separation between adults and juveniles, yet juveniles are held in these facilities. In Indian country, an acceptable and compliant facility may be 80 to 100 miles from a reservation. This leads to the practice of using adult lockups for juveniles.
Indian country is far behind the national average regarding the number of police officers on patrol. The minimum number of police officers needed is approximately 4,300; the current count is 2,600.
In the spring of 2004 BIA implemented a special order to remove all juveniles from those adult facilities that were not able to meet the sight and sound separation requirement. Unintended consequences, however, may developed as a result of this order, such as arresting, but then sending home, two 6-foot 15-year-olds who had brutally raped a preteen girl because no appropriate facility exists nearby. In another case, the all-female jail staff were intimidated by the size and strength of an unruly juvenile and protected themselves by using chains and shackles and isolating him for more than 10 days.
The trust relationship the United States holds for Indian people was described as "perhaps unlike that of any other two peoples in existence" in the historic Cherokee Nation v. Georgia decision of the U.S. Supreme Court. Indian country law enforcement has been described as an amorphous maze of complex legal issues, a jurisdictional nightmare. Complex legal hurdles are placed in the path of those tasked with enforcing the law in Indian country. Recognizing trust responsibility means that Indian country law enforcement must never use those hurdles to rationalize the exclusion of a juvenile case from federal prosecution. But rather those hurdles should be proclaimed to be the very reason to ensure that Indian country victims see justice.
Mr. Lamar stated that the Bureau of Indian Affairs needs the partnerships offered by the Coordinating Council on Juvenile Justice and Delinquency Prevention.
In closing, Mr. Lamar asked the participants and guests what had first come to their minds when hearing the term American Indian—a movie or TV stereotype, a drunken Indian, a government freeloader, or a skid row bum? When he hears the words, he sees many faces, the faces of Indian elders, grandmas and grandpas, sisters and brothers who are professionals such as doctors, educators, blue-collar craftsmen, musicians, artists, DOJ attorneys, and soldiers. He also sees children who need the guidance and direction and victims who deserve justice. He asked the group to analyze what they saw and decide if a change is needed. George Bernard Shaw said, "Progress is impossible without change and those who cannot change their minds cannot change anything."
Mr. Lamar offered to return to a Council meeting and speak more indepth about Indian issues.
The Council is currently in the mode of information gathering, in which it is hearing reports from agencies and constituencies related to its mission. Although they are often discouraging reports, it is important to obtain an accurate picture, which indicates the work to be done by the Council. Through these reports, some encouraging opportunities present themselves as well. Because the federal system contains a limited number of juveniles, the Council can make a difference and bring improvements in a short time.
Tim Wight and his staff will gather from Council members examples of how their agencies can help the Council and America's youth. How can the agencies on the Council use what they already know and lead by example? The federal government often ask others to follow rules from which they have exempted themselves. But changes are occurring, and we need to encourage the progress that has been made. Please look at what has been identified and the holes and needs that remain. What should be placed on the agenda for future meetings and what bite-sized and doable action items can be accomplish? This will provide encouragement toward meeting the Council's goals. The Council provides an opportunity to disseminate targeted and specific information to audiences in the juvenile justice system.
Mr. Flores believes that it is helpful for the Council to hear new perspectives from each other and from outsiders who offer another view. Recent meetings have concentrated on presentations related to topics of special interest in the juvenile justice field. He hoped that future meetings can focus on solutions to the problems raised in the presentations. Conference calls with Council Planning Team members and e-mails to all will continue between meetings. He asked that Council members let Mr. Wight know what they find both helpful and troubling at the meetings.
Mr. Flores asked if participants wanted to raise any issues at the close of the meeting. Mr. Brendtro expressed his appreciation for Mr. Flores's forthright statement at the end of the meeting to get to the heart of the issue and hoped that the discussion would continue at the next meeting. Mr. Flores stated that the discussion would continue both before and during the next meeting.
The presentations by John Pogash of the U.S. Immigration and Customs Enforcement, DHS, and Maureen Dunn of the Division of Unaccompanied Children's Services, Office of Refugee Resettlement, HHS, scheduled for the September 2004 meeting will instead be on the agenda for the December 2004 meeting.
Mr. Flores thanked the Council members and other participants for attending and adjourned the meeting.
U.S. Department of Health and Human Services (HHS)
U.S. Department of the Interior
U. S. Department of Justice (DOJ)
National Institute of Justice
Office of Juvenile Justice and Delinquency Prevention (OJJDP)
Office of Tribal Justice
U.S. Department of Labor (DOL)
NationalCenter for Juvenile Justice
White House Office of National Drug Control Policy (ONDCP)
Sheila A. Bedi, Attorney, Mississippi Center for Justice
Date Published: September 10, 2004