New bill derails juvenile justice reform
By all objective measures, Tennessee’s juvenile justice system is in crisis.
After two years of intensive study by bipartisan juvenile justice reform task forces created by the Tennessee Legislature, an alarming picture of the state’s system of treatment and rehabilitation for court-involved children and youth emerged.
The juvenile system incarcerates, at sizable cost, far too many children for committing minor offenses and keeps children in state custody too long. It entertains far too many cases that would be better handled by schools and social service agencies.
It tethers children to a system of probation when there is no evidence that this practice does any good for the majority of those mired in the system. It fails to use proven best practices for ensuring better outcomes. It fails to provide meaningful due process protections.
Compounding these problems, the constitutional right to appointed counsel for juveniles is systematically denied, as documented by the Tennessee Supreme Court’s own 2017 Indigent Representation Task Force.
The Juvenile Justice Reform Act (Senate Bill 2261/House Bill 2271) was introduced this term. Sen. Majority Leader Mark Norris (R-Collierville), who understands the issues well, led the initiative. Gov. Bill Haslam made it part of his legislative agenda.
This comprehensive legislation was designed to correct many of the longstanding injustices and inefficiencies in the current system. If enacted as introduced, the recommendations could save the state $36 million, improve public safety, and produce a fairer juvenile system, one that is less marred by stark geographic and racial disparities.
Unfortunately, and with no public notice, input, or hearings, this salutary process was derailed by the very groups that are responsible for creating the current dysfunctional system: the state’s juvenile judges and district attorneys.
Led by the Tennessee Council of Juvenile and Family Court Judges, the Haslam administration introduced an amendment that gutted the original bill.
Under this version, the bill increases
opportunities for courts to jail children and to place them in state custody in noncriminal status/unruly cases (truancy, running away, etc.). It expands the offenses for which children and youth can be incarcerated (”widening the net”).
It makes only cosmetic changes to the current system of probation and continues the inappropriate lengths of time that children remain court-involved.
It enhances judicial discretion – contrary to venerable rulings of the U.S. Supreme Court that apply nationwide – in a system where unchecked discretion is the norm, thus assuring that “justice by geography,” as Norris has termed it, will persist.
It fails to grapple with the issues of the right to and quality of juvenile counsel and due process that infect the existing system.
It ignores best practices that have worked in other states to change juvenile systems for the better.
At this late stage in the legislative process, several of the original provisions of SB 2261 could be restored. Eliminating the Valid Court Order (VCO), which allows judges indefinitely to incarcerate status offenders who have committed noncriminal offenses, would be a step forward.
Over 4,000 youth are placed under this draconian measure every year. They overwhelmingly do not have an attorney. Only six juvenile courts (including Shelby) account for 80 percent of the VCOs. The VCO has also been condemned by the National Council of Juvenile and Family Court Judges and the U.S. Senate and House of Representatives.
Another important change would be to correct the violation in the bill that allows a juvenile to be incarcerated in detention facilities longer than the federally-mandated 48 hours before a detention hearing is held. As the facts show, keeping youth out of jail and in school saves the state and counties real money.
Meaningful juvenile justice reform is long overdue in Tennessee. The original bill was widely supported across our state’s political and religious spectrum. The amended bill should fail, and the legislation that was initially introduced should be restored.
Dean Hill Rivkin was a member of the 2016-17 Juvenile Justice Realignment Task Force. Brenda McGee is a children’s rights attorney in Knoxville.