Closing a loophole that keeps kids locked up

Skipping school, running away from home, violating curfew. These are the “crimes” that incarcerate thousands of children every year in the United States. The juvenile justice system refers to these behaviors as status offenses that are only prohibited due to the youth’s age and would not be considered criminal if committed by an adult.

In 2010 alone, 137,000 status offense cases were processed in courts and in more than 10,000 of these cases, youth were removed from their homes and incarcerated alongside other young people charged with, in some situations, serious crimes.

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Detaining or incarcerating young people for any behavior that is non-criminal in nature makes no sense—from a pragmatic, moral, or cost-effectiveness perspective. Children whose behaviors raise concern among adults in their lives need attention and support to get back on track, but the juvenile justice system does not offer the right kind of assistance.

Not only is the justice system ill-equipped to identify and address the underlying needs of these young people, it does so at enormous cost. And for those young people who have been placed in detention for a status offense, the consequences can be harmful: they are more likely to experience physical and mental health problems, drop out of school, and have trouble finding employment.

Although the federal Juvenile Justice and Delinquency Prevention Act of 1974 expressly prohibited the incarceration of youth charged with status offenses, a 1980 amendment included a provision known as the Valid Court Order (VCO) exception. The VCO exception allows judges to sentence youth to locked detention for violating a direct order from the court, such as “stop running away from home,” or “attend school regularly.” While many states prohibit or do not use the VCO exception, a publication from the Coalition for Juvenile Justice noted that it was still used more than 8,000 times in 2010 to securely confine youth for non-criminal behavior.

Thankfully, there seems to be a growing drumbeat across the country, shedding light on why taking a punitive approach is problematic. Reforms in states like Connecticut, New York, and Florida have demonstrated that immediately referring cases to social services in their communities instead of court can reduce court caseloads, lower system costs, and provide more meaningful and lasting support to children and families.

Across the country, status offense reform has brought together juvenile justice advocates, law enforcement and policymakers from both sides of the aisle. For example, in March the free-market think tank Texas Public Policy Foundation, released a report recommending that status offenses should be dealt with by the family, in conjunction with educational, mental health, child welfare, and other systems rather than the juvenile justice system. And in April, the governor of Kentucky, a Democrat, signed a bill that increases the use of diversion from the court system for youth alleged of status offenses.

To build on this work and help more communities, we recently launched the Status Offense Reform Center to provide practitioners and policymakers with virtual technical assistance consisting of an online toolkit and other resources to help communities plan, implement, and sustain a comprehensive system change process.

Congress should take a hard look at whether it is time to eliminate the VCO exception. Without this step, we fear that any ongoing attempts at more comprehensive juvenile justice reform (including for those young people who do commit crimes) will falter.

By continuing to build wide-ranging support for timely, community-based, and developmentally-appropriate responses to youth and families, we can make stemming the flow of youth into the juvenile justice system a national priority, leading to safer communities and more cohesive families, and enabling young people to achieve their full potential. 

Ananthakrishnan is a project director in the Center on Youth Justice at the Vera Institute of Justice in New York and manages the online Status Offense Reform Center.