Guest Editorial published in the June 18, 2016 Arkansas Democrat-Gazette


Sen. Tom Cotton, R-Ark., alone stands in the way of an opportunity for our country to stop the socially and financially costly practice of incarcerating children for skipping school and running away from home. These behaviors, known as status offenses, are petitioned as a Family in Need of Services case in Arkansas and are illegal only because the youth has not yet reached 18.

Judges are generally prohibited from incarcerating children for a Family in Need of Services petition under the Juvenile Justice and Delinquency Prevention Act (JJDPA). An amendment to the JJDPA in the 1980s, however, created what is known as the valid court order (VCO) exception. This provision enables judges to detain a child if they are found in violation of a previous court order requiring the young person, for example, to attend school.

Arkansas uses this exception more than all but two other states. In fiscal year 2014, the VCO exception was used 747 times in Arkansas, or an average of roughly 2.1 times per day.

Research shows that incarceration places youth at an increased risk of harm and can lead to deeper involvement in the juvenile and criminal justice systems. It has also shown that young people who skip school and run away from home are often doing so because of unmet needs that are better addressed through community supports and services. This research has led the National Council for Juvenile and Family Court Judges, a network of more than 30,000 juvenile justice professionals, to stand as one of the VCO’s biggest opponents.

Legislation is currently before the Senate that would phase out the VCO, requiring states to eliminate its use within three years. The bill, S1169, aims to reauthorize and update the JJDPA. It would incorporate much of the research that has resulted from the past decade, and place an emphasis on evidence-based practices.

On Feb. 11, the bill’s sponsors, Sens. Charles Grassley, R-Iowa, and Sheldon Whitehouse, D-R.I., requested that the Senate pass the bill by unanimous consent. This process requires that all 100 senators agree to a piece of legislation’s approval without a vote. In a floor statement that day, Sen. Tom Cotton (R-AR) alone objected to passing the bill.

“A blanket federal mandate that bans secure confinement in each and every circumstance may not be the best way forward,” he said. “I submit we should continue to entrust states with the decision to retain [the VCO exception] as a last-resort option and to allow judges on a case-by-case basis to use their discretion about the best course to enforce their prior orders.”

Others disagree though, and think such discretion creates inequities for Arkansas’ children. Just this past December, an Arkansas Democrat-Gazette article noted that “[I]n Arkansas, whether the youths go to jail depends largely on the philosophies of their judges and the abilities of their counties to pay for them to be locked up.” Jerald Sharum, adjunct professor at the University of Arkansas School of Law, told the paper, “It is a problem because you’re not really getting the same shake.”

Without passage of S1169, these disparities, and the current system of “justice by geography,” will continue to plague Arkansas and the country as a whole.

Senator Cotton himself has recognized this problem–at least as it relates to his opposition to the adult sentencing reform bill.

During remarks on May 19 at the Hudson Institute regarding S2123, he said: “Judges, if they are given more discretion to sentence, are going to have different results based on their own views, their own understanding of the law, their understanding of the case in front of them, and you are going to have more inequities in similarly situated defendants. That’s just a fact.”

On this point, Senator Cotton is correct. Evidence shows that these disproportionate sanctions based on judges’ subjective views can be dangerous and unjust, and that black and brown children are more likely to face these severe sanctions. As a general matter, locking up children for a Family in Need of Services petition does more harm than good and can actually place children at increased risk for physical and sexual assault. At the Arkansas Juvenile Assessment and Treatment Center, for example, there were 327 reported assaults in 2013 alone, an increase of more than 98 percent over the previous year.

Better alternatives exist. Tell Senator Cotton that it is time to be consistent on judicial discretion. It is time to protect our children and families.

It is time to lift the hold on S1169 and ensure that our youth get the services and help that they need.


Tom Masseau is executive director of Disability Rights Arkansas, and Naomi Smoot is senior policy associate at the Coalition for Juvenile Justice.

Editorial on 06/18/2016