The impact of silence: The incarceration of children who have committed no crime

Congress has recessed for the summer without passing any justice reform—not in the criminal nor juvenile justice arenas.  Neither the Sentencing & Corrections Reform Act (SCRA), nor the Juvenile Justice & Delinquency Prevention Act (JJDPA)—both bills with bipartisan support—were able to be passed into law before the long summer recess.

While Sens. Richard DurbinRichard (Dick) Joseph DurbinThe Hill's Morning Report - Sponsored by Facebook - Trump previews SCOTUS nominee as 'totally brilliant' Feinstein 'surprised and taken aback' by suggestion she's not up for Supreme Court fight Grand jury charges no officers in Breonna Taylor death MORE (D-Ill.), Mike LeeMichael (Mike) Shumway LeeBipartisan representatives demand answers on expired surveillance programs McConnell shores up GOP support for coronavirus package McConnell tries to unify GOP MORE (R-Utah), Cory Booker (D-N.J.) and Chuck GrassleyCharles (Chuck) Ernest GrassleyGOP lawmakers distance themselves from Trump comments on transfer of power The Hill's 12:30 Report: Ginsburg lies in repose Top GOP senators say Hunter Biden's work 'cast a shadow' over Obama Ukraine policy MORE (R-Iowa) took to the floor the last week Congress was in session, making persuasive arguments for sentencing reform, the only voice that remains heard on juvenile justice reform is that of its sole opposition, Sen. Tom CottonTom Bryant CottonThe Hill's 12:30 Report: Trump stokes fears over November election outcome The Hill's Morning Report - Sponsored by Facebook - Trump previews SCOTUS nominee as 'totally brilliant' Abortion stirs GOP tensions in Supreme Court fight MORE from Arkansas.

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The JJDPA has been protecting children in custody and building stronger community supports since it was first authorized in 1974.  Its first order of business 40-plus-years-ago was to remove children from youth jails and prisons who had committed no criminal act, but rather engaged in risky behavior of youth such as truancy, curfew violations and incorrigibility, otherwise known as status offenses.

In the 1980’s, judges added an exception to that protection, arguing that if a status offender failed to comply with a valid court order issued by a judge, then the judge could securely detain him or her for a short period of time. Since then, a robust and uncontested body of research has uniformly called for the end of the valid court order, citing the many harms that occur to a child during a period of detention, and listing significant alternatives that are more effective.  For example, a child who is detained for being truant is 14.5 times more likely to drop out of school—a result that yields the exact opposite outcome of what we would like to happen for that child.  As such, many judges have reversed their position and are now calling for the end of the use of valid court orders to detain status offenders.

Since family court judges called for the phase out, 34 states have dramatically reduced their use of the valid court order with 24 not using it at all and 9 using it less than 100 times a year.  Arkansas used the valid court order exception 747 times in 2014.  Only two other states used it more often, and one (Kentucky), has since passed a law that prohibits its use.

The JJDPA has gone unauthorized for since it expired in 2007, which has led to a dramatic reduction in its funding.  We have the opportunity with wide state and community support (everyone from law enforcement to judges, prosecutors, and faith based organizations), and the research to back up the improvements that reauthorizing this bill would make.  There is no excuse why we should not be able to get this modest bill through Congress this session.

Six months ago ninety-nine senators supported this bill during an attempt for a vote through unanimous consent yet failed due to Sen. Cotton’s lone opposition . Its not a partisan issue, Speaker of the House, Paul RyanPaul Davis RyanKenosha will be a good bellwether in 2020 At indoor rally, Pence says election runs through Wisconsin Juan Williams: Breaking down the debates MORE, called for its passage in his recently released Anti-Poverty Plan entitled “A Better Way.” Passing this bill should have been an easy win before two national conventions where both parties could have celebrated that they were doing something positive for children and spending precious federal discretionary dollars wisely.  Instead, we sit in Washington, with the lowest Congressional approval ratings in history. Despite support from top Congressional leaders, we remain without a vote for some of our country’s most vulnerable children.  

Nathan Leamer is Outreach Director for R Street, a non-profit, non-partisan, public policy research organization, and Marcy Mistrett is CEO of the Campaign for Youth Justice, a national initiative focused entirely on ending the practice of prosecuting, sentencing, and incarcerating youth under the age of 18 in the adult criminal justice system.


The views expressed by authors are their own and not the views of The Hill.