LITTLE ROCK — U.S. Sen. Tom Cotton, R-Ark., says putting juveniles behind bars for offenses such as skipping school or running away from home is an option that judges need to have, but some advocates for juvenile justice reform say the practice is inhumane and risks criminalizing already at-risk youths.

LITTLE ROCK — U.S. Sen. Tom Cotton, R-Ark., says putting juveniles behind bars for offenses such as skipping school or running away from home is an option that judges need to have, but some advocates for juvenile justice reform say the practice is inhumane and risks criminalizing already at-risk youths.


Jailing juveniles


Cotton has blocked reauthorization of the Juvenile Justice and Delinquency Prevention Act of 1974, which has created the Office of Juvenile Justice and Delinquency Prevention, set federal standards for the states’ juvenile justice systems and provided funding for juvenile delinquency programs around the country. The act last received a five-year reauthorization in 2002, but Congress has continued to appropriate money each year for the programs it funds.


A bill filed last year to reauthorize the act would make several changes to it. One of those changes, which prompted Cotton to put a hold on the bill and block it from being passed in the Senate by unanimous consent, would be to end, after three years, the authority of judges to incarcerate juveniles for "status offenses," or offenses that only apply to juveniles, such as truancy and underage drinking.


Federal law prohibits the incarceration of juveniles for status offenses, but if a judge issues a court order and a juvenile violates it, the judge can order the juvenile detained or incarcerated under what is known as the valid court order, or VCO, exception.


The VCO exception has become controversial. Twenty-four states have passed laws to prohibit its use, according to the National Council of Juvenile and Family Court Judges, which has recommended that judges not use it.


"Brain science, a lot of research, has shown that locking up youth is very detrimental to their development," said Cheri Ely, the council’s juvenile justice program director. "There are a lot better ways to address their offenses and make amends to the community. It’s very hurtful to take juveniles away from their families."


Bill Kopsky, executive director of the Arkansas Public Policy Panel, said jailing juveniles for minor offenses drives up incarceration costs, contributes to jail overcrowding, makes it harder to find space for serious offenders and increases the likelihood that the juveniles will commit other offenses in the future.


"It’s as though we’re taking kids who aren’t criminals and converting them to it," he said.


Arkansas’ choice


According to Cotton’s office, Arkansas’ use of VCOs to lock up juveniles is now the third highest in the nation. Cotton spokeswoman Caroline Rabbitt noted that when the Arkansas Legislature passed justice reform legislation last year, it opted to keep VCOs as an option for judges.


"What Sen. Cotton is fighting to preserve is Arkansas’ choice — passed in the state legislature last year — to empower judges to enforce their orders where a juvenile flagrantly violates orders to enter counseling or complete other rehabilitation," she said.


"The majority of states have made the same choice Arkansas has, and Senator Cotton does not believe Congress should second-guess those choices by passing a coercive, top-down mandate that would be yet another act of federal overreach," Rabbitt said.


Cotton is working with colleagues to reach a compromise on the reauthorization bill, Rabbitt said, adding that if the bill were to pass in its present form, Arkansas would either have to give up the option of jailing juveniles for status offenses or lose federal funding it receives under the act for its juvenile justice system.


Community alternatives


Desha County Sheriff Jim Snyder said there are better ways to address non-criminal offenses by juveniles than incarceration.


"I’m totally opposed to putting children in jail and getting them in the court system and making criminals out of them before they’re even old enough to be teenagers. I’ve seen it and seen it and seen it," he said. "There are other alternatives we need to explore when it comes to children."


Schools are too quick to send children to court, Snyder said.


"I see no reason for the schools to be putting their problem into the court system," he said. "They need to be taking care of business at school instead of jumping up on the least little thing and putting them in the court system. Those kids have got a record for their entire lives. … I’ve even seen them in leg irons, little ol’ kids."


John Furness, executive director of Comprehensive Juvenile Services Inc., a non-profit youth and family program in Fort Smith that receives funding under the Juvenile Justice and Delinquency Prevention Act, said he has written to Cotton and urged him to support the reauthorization bill.


"Status offenders should not be in secure confinement," he said. "They should have community alternatives, community-based services. I would hope that out incarceration of kids would be reserved for the most serious violent offenders."


No consistency


Although the use of jail for status offenders is high in Arkansas, it is not high in every county. It is up to the discretion of judges whether to use the option, and some choose not to while other rely on it heavily, according to Paul Kelly, senior policy analyst for Arkansas Advocates for Children and Families.


Kelly said that according to information reported to the U.S. Department of Justice by the Arkansas Department of Human Services’ Division of Youth Services, Sebastian County has a history of making the most use of VCOs, followed by Jefferson County.


DYS reported that in 2014, Sebastian County jailed 145 status offenders and Jefferson County jailed 36. At the other end of the spectrum, Pulaski, Benton and Crittenden counties jailed none.


State Sen. Jeremy Hutchinson, R-Little Rock, who sponsored justice-reform legislation last year, said the state "has an interest in ensuring that there’s not disparity across the state, that there’s consistency, and most importantly that kids aren’t being condemned to a life of crime because we take the easy route and commit them so that we just don’t have to deal with them in our communities."


Hutchinson said he agrees with Cotton that jailing status offenders should remain an option for judges to use with juveniles who continually violate court orders, but he said it should be used more sparingly than some judges now use it.


He said the Legislative Criminal Justice Oversight Task Force, which he co-chairs, is looking at ways to address the issue and likely will recommend legislation for consideration in next year’s session. Possible approaches include requiring judges to justify their use of the option and requiring counties or judicial districts that use it heavily to pay a bigger share of the cost, he said.


Arkansas also needs more community-based programs that can serve as alternatives to jailing juveniles, Hutchinson said.


"In some parts of the state, judges don’t feel like they have a choice because there’s no local community-based programming available," he said.