MAKING REFORM HAPPEN IN JUVENILE JUSTICE

Sponsor: Committee on Child Protection & Domestic Violence CLE Credit: 1.0

Wednesday, June 18, 2014 2:25 p.m. - 3:25 p.m. Meeting Rooms 1-3

Northern Kentucky Convention Center Covington, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

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TABLE OF CONTENTS

The Presenters ................................................................................................................. i

Alternative Education and the School-to-Prison Pipeline ................................................. 1

Issue Brief: Racial Disparities in School Discipline ....................................................... 15

Why Should Schools Choose to Address Student Misbehavior within the School Code of Conduct instead of Relying upon Exclusionary Disciplinary Practices and Juvenile Court Prosecution? ................................................ 27

Senate Bill 200 Summary .............................................................................................. 35

Developing the Law in Kentucky Courts Recent Kentucky Cases that Litigate Juvenile Law Issues (2000-Present) .................... 39

Georgia's 2013 Juvenile Justice Reform ....................................................................... 57

THE PRESENTERS

Timothy G. Arnold Kentucky Department of Public Advocacy

100 Fair Oaks Lane, Suite 302 Frankfort, Kentucky 40601

(502) 564-8006 tim.arnold@ky.gov

TIMOTHY G. ARNOLD is a graduate of Knox College and the University of Kentucky College of Law. He began his career with the Kentucky Department of Public Advocacy in the Juvenile Post-Dispositional Branch in 1996, and served as Manager of that branch from 2003-2008. In 2007 he took the case of Jose Padilla, and represented Mr. Padilla either as lead counsel or co-counsel through the Supreme Court decision in Padilla v. Kentucky, and through the remand of the case, where Mr. Padilla was granted post-conviction relief. During his career at DPA he has been awarded the Kentucky Association of Criminal Defense Lawyer’s Juvenile Justice Award, the DPA’s In Re Gault Award for Excellence in Juvenile Representation, the DPA’s Furman v. Georgia Award for Excellence in Death Penalty Representation, and most recently the American Immigration Lawyers Association Jack Wasserman Memorial Award for Excellence in Litigation in the field of Immigration Law. He has served as DPA’s Post-Trial Division Director since 2008.

Judge Jason Shea Fleming Christian County Justice Center 100 Justice Way, Second Floor Hopkinsville, Kentucky 42240 (270) 889-6038 jsflaw@bellsouth.net

JUDGE JASON SHEA FLEMING serves as the Family Court Judge of Christian County. Prior to taking the bench, he was assistant Christian County attorney from 1998 to 2006 and served as the director of Christian County Juvenile Services and as a volunteer for Christian County Juvenile Drug Court from 2000 to 2006. He was in private practice with Thomas, Arvin & Fleming in Hopkinsville from 1997 to 2000 and had a solo practice from 2000 to 2003. Judge Fleming received his bachelor’s degree from the University of Kentucky and his J.D. from the University of Kentucky College of Law, cum laude, where he was a member of the Order of the Coif. He is the 2011 recipient of the KBA’s Outstanding Young Lawyer Award, the 2006 Kentucky Public Advocate Award, the 2010 Christian County Child Abuse Council Advocate for Children Award and the 2007 Meritorious Service Award from Christian County Juvenile Drug Court. He previously received the KBA’s Continuing Legal Education Recognition Award and has been the recipient of the KBA’s Pro Bono Award multiple times.

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Representative John C. Tilley 126 Moreland Drive

Hopkinsville, Kentucky 42240 (270) 886-9794

John.tilley@me.com

REPRESENTATIVE JOHN C. TILLEY is serving a fourth term in the Kentucky House of Representatives. He has chaired the Judiciary Committee since 2009, while co-chairing many related task forces with Senate counterparts. Representative Tilley has sponsored multiple pieces of significant legislation including HB 463, which overhauled a large portion of Kentucky's criminal justice system. He also led efforts to combat synthetic and prescription drug abuse, for which Kentucky has received much acclaim. As a result, Representative Tilley has been the recipient of numerous awards and has become a nationally-recognized voice for good public policy. He serves on various other committees and task forces in his legislative service and still practices law. Representative Tilley is a graduate of the University of Kentucky and the Salmon P. Chase College of Law.

Senator Whitney H. Westerfield 700 South Main Street Post Office Box 1107 Hopkinsville, Kentucky 42241-1107 (270) 881-2888 whitneywesterfield@me.com

SENATOR WHITNEY H. WESTERFIELD serves the citizens of Christian, Todd and Logan counties in the Kentucky Senate and maintains a private practice in Hopkinsville. He was a leader in the efforts to bring about reform in Kentucky's juvenile justice system which culminated in Senate Bill 20. Senator Westerfield received his B.S. from the University of Kentucky and his J.D. from Southern Illinois University. He serves on the Board of Directors of the Boys and Girls Club and the Alpha Alternative, the Hopkinsville American Red Cross Advisory Committee, the United Way of Pennyrile, and is a member of the Kiwanis Club of Hopkinsville

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ALTERNATIVE EDUCATION AND THE SCHOOL-TO-PRISON PIPELINE Children's Law Center, Inc.

TABLE OF CONTENTS

Introduction ..................................................................................................................... 1 Addressing the School-to-Prison Pipeline Problem.......................................................... 2 Kentucky's Approach to Education .................................................................................. 3 Role of Alternative Educations Programs ........................................................................ 6 Racial Disparities in the School-to-Prison Pipeline .......................................................... 6 Solutions and Alternatives ............................................................................................... 8

Definition of Programs ......................................................................................... 9 Oversight ........................................................................................................... 11 Accountability .................................................................................................... 11 Teacher Certification .......................................................................................... 12 Denial of Equal Extracurricular Opportunities ..................................................... 12 Equality of Curriculum and Instruction ................................................................ 13 Tracking of Per-Pupil Funding............................................................................ 13 Transitioning Into and Out of Programs ............................................................. 13 Parent Involvement ............................................................................................ 14

Conclusion .................................................................................................................... 14

Introduction

For over three decades, the criminal justice policy in our country dismissed rehabilitation of convicts in favor of long and harsh terms of incarceration. An ever more litigious society, ungrounded in any sense of community has expanded state and federal criminal codes to encompass all kinds of misbehavior that in the past we might expect families, schools and communities to address. Expansive penal codes, an overreliance on incarceration and failure to examine the root causes of crime, have created the overarching removal of people from our communities and into the prison system.1 A significant number of those swept up into what some call "the prison industrial complex" are minorities or people of color.2 This trend towards removal and often permanent disbarment has extended into our schools. Today, many children are removed from their educational environments and placed onto a one-way path towards prison. Criminal, juvenile justice and school policies which push children out of the educational system and towards courts for prosecution are collectively known as the School-to-Prison Pipeline.

In recent years, the public perception in the United States has been that violence among youth, both inside and outside of school, is on the rise. Despite this perception, violence

1 Michelle Alexander.

2 Angela Davis.

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among youth has actually been decreasing across the country.3 However, schools have increasingly adopted harsh "zero-tolerance" policies towards discipline in response to the misguided perception that youth violence is out of control. School administrations which promote zero-tolerance policies contribute to the School-to-Prison Pipeline by removing students deemed to be "problem children" from their schools.4 This reliance on disciplinary measures by school administrators has led to over three million school children each year being suspended in the United States.5 Children who are suspended, and thus excluded from the traditional educational setting, are not being taught positive behavior. Instead, their education is disrupted for days and poor behavior increases because they are removed from their regular environment and a school's inherent structure.6 In addition to being suspended or expelled, students are more frequently being arrested and prosecuted in juvenile court for misbehaving at school.7 Students may even be arrested for typical adolescent misbehavior, such as swearing, disobeying a teacher, or starting a food fight.8

This brief highlights the disparity between minority students enrolled in alternative education programs ("AEP") and their white peers enrolled in traditional programs, and how these minority children are placed on the School-to-Prison Pipeline. In addition, this brief discusses the significant impact that Kentucky's AEPs have on disparity among minorities regarding the School-to-Prison Pipeline. Lastly, this brief will discuss solutions to the School-to-Prison Pipeline, including both legislative and familial/societal remedies.

Addressing the School-to-Prison Pipeline Problem

In order to reform and address the School-to-Prison Pipeline, one must focus on the root of the problem – a public education system that often fails our children. Schools with fewer resources available to students tend to yield poor educational and behavioral outcomes.9 The lack of resources and poor attention given to students in the public education system, especially in lower socio-economic areas, promulgates failure among these students and places them on the School-to-Prison Pipeline. Inadequacies in public schools range from a lack of qualified and experienced teachers, to poor extra-curricular activities and a lack of safe and modern facilities.10 Schools that are deprived of essential resources simply do not have the ability to create a safe and successful educational environment. These schools are labeled as "failing" and "unsafe" in the

3 "NAACP Dismantling the School-to-Prison Pipeline" at 3 http://www.naacpldf.org/ files/publications/Dismantling_the_School_to_Prison_Pipeline.pdf.

4 Id.

5 Id.

6 Id.

7 Id. at 4.

8 Id.

9 Id.

10 Id.

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community, and the students then begin to feel disengaged from the school and believe they have no chance to succeed.11 These communities lose the potential talent of these students and also have to deal with the problems that these students will likely pose when they grow older if they stay along the School-to-Prison Pipeline.12

The lack of resources in many public schools also creates incentives for school administrators to remove students from school for any type of misconduct. Many school administrators believe that removing "problem children" from their schools will allow them to better meet the needs of the students who have a real chance at success, and thus improve the educational deficiencies of the school, thereby receiving a higher approval rating by the state.13 No Child Left Behind incentivized this approach with its method of rewarding student test score achievement.14 The lack of sufficient resources in schools also means that suspending or expelling students, or even involving law enforcement, is the easiest way for administrators to deal with "problem students."15 The schools often do not have enough guidance counselors or resources available to effectively discipline students within the school, so they remove the children to AEPs.16 The increasing tendency of school districts to rely upon law enforcement and the juvenile criminal justice system to correct minor misbehaviors helps push children into the Pipeline and away from completing their education.17

Kentucky's Approach to Education

The Supreme Court of the United States has stated that "education is perhaps the most important function of state and local governments[.]"18 However, the individual states are not obligated to maintain a public school system under the United States Constitution.19 "But when a state elects to provide free education to all youths … the state is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause."20 With this national attitude towards public education, the Kentucky Supreme Court has made clear in Rose v. Council for Better Educ., Inc. that education is a fundamental right in Kentucky. Accordingly, all students in Kentucky are entitled to an

11 Id. at 5.

12 Id. at 6.

13 Id. at 5.

14 ADD NCLB original statutes and citation for authority for this point.

15 Id.

16 Id.

17 Id.

18 Goss v. Lopez, 419 U.S. 565, 576 (1975) (citations omitted).

19 Johnson v. Collins, 233 F.Supp.2d 241, 247 (D.N.H. 2002) (citations and quotations omitted).

20 Id. (Emphasis added).

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education, and it is the responsibility of the General Assembly to provide for substantial uniformity of curriculum and opportunity throughout the state.21

In Rose, the Kentucky Supreme Court interpreted Section 183 of the Kentucky Constitution, which requires the General Assembly "by appropriate legislation, [to] provide for an efficient system of common schools throughout the State."22 Noting that "no tax proceeds have a more important position or purpose than those for education in the grand scheme of our government,"23 the Rose court determined that an "efficient system of common schools" consists of the following "essential and minimal characteristics":24

1) The establishment, maintenance, and funding of common schools is thesole responsibility of the General Assembly;

2) Common schools shall be free to all;3) Common schools shall be available to all Kentucky children;4) Common schools shall be substantially uniform throughout the state;5) Common schools shall provide equal educational opportunities to all

Kentucky children, regardless of place of residence or economiccircumstances;

6) Common schools shall be monitored by the General Assembly to assurethat they are operated with no waste, no duplication, no mismanagement,and with no political influence;

7) The premise for the existence of common schools is that all children inKentucky have a constitutional right to an adequate education;

8) The General Assembly shall provide funding which is sufficient toprovide each child in Kentucky with an adequate education; and

9) An adequate education is one which has as its goal the development of[seven particularized capacities].25

21 Ky. Const. §183; see generally Rose v. Council for Better Educ., Inc., 790 S.W.2d 186 (Ky. 1989).

22 Ky. Const. §183.

23 Rose at 211.

24 Id.; Although the Rose Court explicitly places this responsibility on the General Assembly, it also notes that "in no way does this constitutional requirement act as a limitation on the General Assembly’s power to create local school entities and to grant those entities the authority to supplement the state system" with regard to raising supplemental revenues. However, the local efforts are not to be used as a substitute for the General Assembly’s responsibility to provide an "adequate, equal and substantially uniform educational system." Id. at 211-212.

25 Id. (Emphasis added). These above mentioned seven capacities, which an efficient system of education must have as its minimum goal, are as follows:

1) Sufficient oral and written communication skills to enable students to functionin a complex and rapidly changing civilization;

2) Sufficient knowledge of economic, social, and political systems to enable thestudent to make informed choices;

3) Sufficient understanding of governmental processes to enable the student tounderstand the issues that affect his or her community, state, and nation;

4) Sufficient self-knowledge and knowledge of his or her mental and physicalwellness;

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In response to Rose, the Kentucky Education Reform Act of 1990 ("KERA") became the instrument used by the General Assembly to implement equality across Kentucky's school districts.26 Through this reform, the General Assembly delegated to a Kentucky Board of Education ("KBE") the primary function of "develop[ing] and adopt[ing] policies and administrative regulations…by which the Department of Education shall be governed in planning, coordinating, administering, supervising, operating, and evaluating the educational programs, services, and activities within the Department of Education."27

KRS 156.160 further defines the role of the KBE to "promulgate administrative regulations establishing standards which school districts shall meet in student, program, service, and operational performance," which also comply with the General Assembly's enumerated goals for the Commonwealth's schools,28 as well as with the KBE's model curriculum framework. Among several other academic goals, the enumerated goals for the Commonwealth's schools include:

1) Expectations of a high level of achievement for all students;29

2) Increasing students' rates of school attendance;30

3) Increasing students' graduation rates while reducing students' dropout andretention rates;31 and

4) Reducing physical and mental health barriers to learning.32

Furthermore, schools are measured on the proportion of students who make a successful transition to work, post-secondary education, or the military.33

5) Sufficient grounding in the arts to enable each student to appreciate his orher cultural and historical heritage;

6) Sufficient training or preparation for advanced training in either academic orvocational fields so as to enable each child to choose and pursue life workintelligently; and

7) Sufficient levels of academic or vocational skills to enable public schoolstudents to compete favorably with their counterparts in surrounding states,in academics or in the job market. Id. at 211-212.

26 KRS 156.016.

27 KRS 156.029.

28 See generally KRS 158.6451.

29 KRS 158.6451 (1)(a).

30 KRS 158.6451 (1)(c).

31 KRS 158.6451 (1)(d).

32 KRS 158.6451 (1)(e).

33 KRS 158.6451 (1)(f).

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Role of Alternative Education Programs

AEPs were operating in some Kentucky schools pre-KERA. However, in 1998, and through its efforts to improve school safety, the General Assembly acknowledged AEPs – specifically authorizing their use to provide "intervention services" to students at risk ofschool failure,34 students who are at risk of participating in violent behavior and juvenile crime, or who have been expelled from the school district.35 As a result, AEPs in Kentucky began to expand. These programs operate with several different functions in the state, but a primary function is to educate students who have disciplinary actions used against them in their regular school settings. Overall, in order for AEPs to comply with Section 183 of the Kentucky Constitution, and to ensure equality of education for students sent to those programs, there must be a clearly defined and efficient system of alternative education with goals that match the rest of Kentucky's system of common schooling.

Moreover, AEPs can play an important role in addressing the School-to-Prison Pipeline. Students who receive out-of-school suspensions and expulsions are often placed into an AEP to continue their education. If AEPs have the proper educational and disciplinary policies in place to help children succeed, then the outcomes for many children along the School-to-Prison Pipeline will improve. Yet, once students are placed in an AEP they receive little guidance on entry and exit procedures and many remain trapped within the program for the duration of their education. In addition, to not receiving equal educational opportunities, students in AEPs can negatively influence each other if positive disciplinary policies are not in place.36 Often the students who are misbehaving, and who eventually end up in AEPs are the same students that have special learning needs which went unmet in their traditional schools.

Racial Disparities in the School-to-Prison Pipeline

What has long been true in the criminal justice system across the United States has also been true in public education and the School-to-Prison Pipeline – minorities, especially young black males, have been disarmingly affected by the harsher disciplinary policies in schools.37 The racial disparity that exists in the School-to-Prison Pipeline results in minorities being increasingly removed from education and placed on a path towards incarceration.38 In recent years, African-American children made up 16 percent of the United States' juvenile population but accounted for over 45 percent of juvenile arrests.39 African-American students are also far more likely to be suspended or expelled, and thus sent to an AEP, than many of their peers.40 In schools nationally, African

34 KRS 158.440.

35 KRS 158.441.

36 "NAACP Dismantling the School-to-Prison Pipeline," supra, at 5.

37 Id. at 6-7.

38 Id. at 7.

39 Id.

40 Id.

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Americans are over-represented in special education courses and are under-represented in advanced placement courses.41

There are many factors that contribute to the disparity in the quality of education that minority youth receive in contrast with other students. The Pipeline begins for most children before they even enter the public education system. In Kentucky, one in four children is below the poverty line.42 For African-American children, the poverty rate rises to over 45 percent.43 This rate is alarming because poverty is a major contributing factor for children who receive a poor quality education. Poverty affects the health, safety, family life, and quality of community facilities available for children.44 The racial disparities in poverty lead African-American students to be increasingly more likely to enter the Pipeline before they even have a chance to receive a quality education.

Early childhood education also plays a significant role when examining the disparities between minorities and other students in the School-to-Prison Pipeline. Studies have shown that students who are enrolled in a quality education program during their early childhood are more likely to complete higher levels of education.45 These children are also more likely to be in better health, have higher earning, and not end up incarcerated.46 In the 2005-2006 school year, approximately 16,000 children were enrolled in Kentucky Head Start and Early Head Start programs.47 Of these children, only 18.9 percent of them were African-American and over 71 percent were white.48 This disparity means that even at an early age, minority children are not receiving the same quality of education as their white peers. This discrepancy inadvertently pushes them into the School-to-Prison Pipeline and towards the associated negative outcomes.

Another contributing factor to the racial disparity of the School-to-Prison Pipeline is the achievement gap that exists between African-Americans and other students in Kentucky. The attainment of a high school diploma is the single most effective strategy in preventing adult poverty and the Pipeline to incarceration.49 However, a disproportionate number of African-American students in Kentucky could not read or do math at their

41 Id. at 8.

42 "Children’s Defense Fund, Children in Kentucky, January 2012," http://www.childrens defense.org/child-research-data-publications/data/state-data-repository/cits/2012/2012-kentucky-children-in-the-states.pdf.

43 "Children’s Defense Fund, Cradle to Prison Pipeline Factsheet, Kentucky, March 2009," pg. 1, http://www.childrensdefense.org/child-research-data-publications/data/state-data-repository/ cradle-to-prison-pipeline/cradle-prison-pipeline-kentucky-2009-fact-sheet.pdf.

44 Id.

45 Id.

46 Id.

47 Id.

48 Id.

49 Id. at 2.

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grade level.50 For example, in 2007, 86 percent of African-American fourth graders cannot read at their required grade level.51

Data from 2009 reflects that for every 100 white students enrolled in public schools in Kentucky, there were approximately five suspensions.52 However, for every 100 African-American students enrolled in public schools there were approximately thirteen suspensions.53 This has led to a stark racial disparity in the School-to-Prison Pipeline and little progress has been made in addressing the achievement gap between African-Americans and their white peers. Strict disciplinary policies and increasing reliance on law enforcement to deal with "problem students" has led to African-American students being removed from school altogether and placed on a path towards incarceration. In effect, this racial disparity criminalizes minority youth by systematically removing them from school for subjective and minor misbehaviors. Accordingly, school systems are effectively ignoring the inherent problems of the education system by taking the "easy way out" and feeding students into the School-to-Prison Pipeline.

Solutions and Alternatives

While there are many problems involving the School-to-Prison Pipeline, there are also multiple solutions and alternatives to help dismantle the Pipeline for many students. AEPs can play a critical role in implementing these solutions and alternatives by helping students before they are completely removed from the educational process. Additionally, AEPs can catch students before they move towards the prison end of the Pipeline and provide them with a path towards success.

The first step in dismantling the School-to-Prison Pipeline is to strictly examine school disciplinary policies and to dissuade the practice of having students arrested for minor misconduct that traditional schools should be able to handle.54 Both traditional schools and AEPs should have positive behavior supports in place to effectively discipline misbehaving students, many of whom often also have special education needs. Students should not be arrested, made to appear in court, or face jail sentences for typical adolescent misbehavior. School districts with these harsh disciplinary policies only label children as criminals and cause them to lose hope in their education and their future.55 These unreasonably harsh discipline policies should be completely eliminated in both traditional schools and AEPs in order to prevent students from being placed into the School-to-Prison Pipeline.

While schools do need to be safe for children, there are other alternatives to achieving this goal rather than having law enforcement officials intervene in a child's discipline.

50 Id.

51 Id.

52 Id. at 2.

53 Id.

54 "NAACP Dismantling the School-to-Prison Pipeline," supra, at 10.

55 Id.

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Law enforcement should only be used in a school setting if there is an immediate and direct threat to the safety of the children and the school. Kentucky school districts should instead use positive behavior supports to discipline students and encourage them to stay in the mainstream educational environment. All schools, whether traditional or AEPs, should have the resources available to offer extra-curricular activities and after-school programs, intervention programs, guidance counseling, and conflict resolution programs. These programs and activities have been shown to be successful and offer students an alternative to the outcomes of the School-to-Prison Pipeline.56

AEPs can also address the disparity in the School-to-Prison Pipeline by providing a quality education that encourages and gives students the opportunity to successfully complete their education. AEPs are unique learning environments where innovative methodology is the key to student success. Therefore, to ensure an education equal to that of traditional schools, there needs to be legislative oversight of AEPs, which will lead to higher accountability regarding policy-making. In order for AEPs to achieve the constitutional requirements of efficiency, the following nine points must be addressed:

1) Definition of programs;2) Oversight;3) Accountability;4) Instructor certification;5) Tracking of per-pupil funding;6) Transitioning to and from programs;7) Denial of equal extracurricular opportunities;8) Equality of curriculum and instruction; and9) Parent involvement.

Definition of Programs

The Kentucky Revised Statutes define an AEP as "a program that exists to meet the needs of students that cannot be addressed in a traditional classroom setting but through the assignment of students to alternative classrooms… that are designed to remediate academic performance, improve behavior, or provide an enhanced learning experience."57 The Kentucky Administrative Regulations define an AEP as "a district-operated and district-controlled facility with no definable attendance boundaries that is designed to provide services to at-risk populations with unique needs. Its population composition and characteristics change frequently and are controlled by the local school district student assignment practices and policies."58 Additionally, the student makeup of these programs is typically comprised of:

1) Actual dropouts returning to an alternate educational environment;2) Potential or probable dropouts;3) Drug abusers;4) Physically abused students;

56 Id.

57 KRS 160.380 (1).

58 703 KAR 3:390 §1(1).

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5) Discipline problem students;6) Nontraditional students (e.g., students who have to work during the school day);

or7) Students needing treatment (e.g., emotional/psychological).59

It is important to note that Kentucky does not recognize AEPs as schools in the traditional sense. In Kentucky, a "school" is defined as "an elementary or secondary educational institution that is under the administrative control of a principal and is not a program or part of another school. The term "school" does not include district-operated schools that are… alternative schools designed to provide services to at-risk populations with unique needs."60 No explanation is given as to why the AEPs are not considered schools (other than the broadly termed "unique needs" of "at-risk populations"), as some of Kentucky's children are being sent to these programs for their educational needs. Nor are any explanations given as to how AEPs are measured (either against a traditional school or with a traditional school) when collecting a school district's statistical data.

Furthermore, AEPs are not even required to report attendance of their students.61 This regulation is in direct conflict with Kentucky's compulsory attendance policy, which mandates that every parent or guardian is required to send their child to an approved school for each full school term.62 This nonchalance towards students enrolled in AEPs further emphasizes the disparity between students in AEPs and traditional schools.

The KBE already has the authority to "establish alternative education programs and services that are delivered in nontraditional hours and which may be jointly provided in cooperation with another school district or consortia of districts."63 Furthermore, the KBE already has the authority to establish "districts of innovation," which are districts that have developed a plan whereby districts may create "a new or creative alternative to existing instructional and administrative practices intended to improve student learning and student performance of all students."64 It is of grave importance that the students enrolled in AEPs receive the same education as those students enrolled in traditional programs. The fact that the KBE is legislatively entitled to establish AEPs reinforces the idea that legislation has already recognized the importance of AEPs and that these programs should have requisite standards in place to promulgate the education of at-risk youths in Kentucky.

59 Id. at §1(1)(a)-(g).

60 KRS 160.345(1)(b)(3) (Emphasis added).

61 703 KAR 3:390 §1(1) ("an alternative program… is a district-operated and district controlled facility with no definable attendance boundaries").

62 KRS 159.010.

63 KRS 160.107(5)(e).

64 KRS 156.108(1)(b).

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Oversight

The importance of AEPs has been addressed in Kentucky's legislative process, yet the oversight of these programs is lacking. As has been discussed previously, students in these programs do not receive the same opportunities and educational experiences as their peers in regular classrooms. In other words, AEPs, as currently operating in Kentucky, deny some students the equality ensured through an "efficient system of common schools."

Standards Kentucky needs to enforce include requiring AEPs to maintain a "school report card" (i.e. the compilation of school information). KRS 158.6453(20) states that the KBE "shall promulgate an administrative regulation to establish the components of a reporting structure" for schools, in order to track the success of traditional schools.65 This reporting structure shall include a "school report card that clearly communicates with parents and the public about school performance."66 In addition, the school report card shall include information regarding a school's academic achievement,67 non-academic achievement, including the school's attendance, retention, graduation rates, and student transition to adult life,68 and learning environment, including measures of parental involvement.69 The school report card shall also include data about the student body's race, gender, and status of disability when appropriate.70

Requiring school districts to report the statistics of students enrolled in both standard classes and AEPs establishes a system of standards for oversight and accountability. AEPs must be included on the report card to accurately reflect the districts performance. The KBE needs to promulgate an "efficient system of common schools" and therefore, must measure the performance of AEPs along with all other schools in the district. The Kentucky Department of Education recognizes the need to elevate Kentucky's AEPs, exemplified by the Department's effort to hold up exemplary programs.71 The accurate collecting and reporting of information will help school administrators in the future to track the achievements of students enrolled in AEPs, and with this knowledge, support and redirect students who might otherwise fall into the Pipeline.

Accountability

The complete exclusion of AEPs from the definition of "school" deprives school leadership of easily accessible accountability mechanisms to track all students and

65 KRS 158.6453(20).

66 KRS 158.6453(20)(a).

67 KRS 158.6453(20)(a)(1).

68 KRS 158.6453(20)(a)(3).

69 KRS 158.6453(20)(a)(4).

70 KRS 158.6453(20)(a).

71 http://education.ky.gov/school/Documents/Criteria%20for%20A5%20and%20A6%20Model% 20Programs.pdf.

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ensure equity in resources and achievement for traditional and school run AEPs. Districts should be required to include AEPs' report cards to ensure accountability for student achievement, policy-making, budgeting and allocations of funding, and parent and community involvement. Thus, it is important that this regulation provides a much clearer overall definition of "school" that includes AEPs.

Currently, the measure of a district's success does not accurately account for students sent to AEPs. Thus, districts may be unintentionally inflating the perception of their overall student achievement. The definitions of "school report card," "total enrollment," "spending per student," and "school safety data" should include AEPs to ensure that schools and districts are being held accountable for all students. Therefore, any school district which has an AEP within its district shall publish a school report card for the program which will become part of the district report card. AEPs should be included in this to ensure that the link between school, district, and state data and the school and district report cards, accurately reflects the environment of the educational institution. The exclusion of AEPs from this data skews the data on achievement and performance for the school districts and state.

Teacher Certification

AEP instructors must not only be certified in the fields they teach and for the grade levels taught, but should have special training with regards to the "alternative" methods used in these programs. AEPs are unique learning environments where innovative methodology is the key to student success. Therefore, to ensure equality with instruction in regular classrooms, AEP instructors must not only be certified in the fields they teach and for the grade levels taught, but should have special training with regards to the "alternative" methods used in these programs. Districts should be required to provide professional development in the area of alternative education for all instructors assigned to AEPs.

By statute, school districts in Kentucky are prohibited from assigning teachers or staff to AEPs as a result of disciplinary action or pending disciplinary action. ("No superintendent shall assign a certified or classified staff person to an alternative education program as part of any disciplinary action… or as part of a corrective action plan established pursuant to the local district evaluation plan.")72 Mandating appropriate certification for teachers assigned to AEPs obviously supports the effort to provide at-risk students with an education equal to that of their peers, who remain enrolled in traditional schools.

Denial of Equal Extracurricular Opportunities

Extracurricular activities are undeniably an important part of a child's development. Extracurricular activities allow students to explore their interests and cultivate their talents, applying class room knowledge in "real world" circumstances.73 However, AEPs frequently do not maintain extracurricular activities such as sports programs, academic clubs, or tutoring and mentoring programs. Without these social outlets, students enrolled in AEPs are deprived of critical, meaningful opportunities for personal growth.

72 KRS 160.380(3).

73 "Peoria Illinois Alternative School Quick Report," http://www.schoolsk-12.com/Illinois/ Peoria/PEORIAALTERNATIVESCHOOL-Activities.html.

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AEPs should therefore conduct extracurricular activities as well as provide counseling to both students and parents.

Equality of Curriculum and Instruction

AEPs should not offer a curriculum that is "watered down" from that of the statewide or district-wide standards for other students. One of the goals for Kentucky's efficient system of common schools is to achieve high expectations of achievement for every student, measured by that student's successful transition into work, post-secondary education, or the military.74 One major concern about measuring a district's success in this manner is that school districts do not have to count students sent to AEPs in their drop-out rates, thus inflating the perception of the district's overall student achievement. AEPs should operate within the common system of schools, not outside of it. Students who do not achieve within these programs should be measured along with their peers who attend regular schools in the district. This would ensure that school districts are held accountable for all of their students and discourage removing children from their traditional school for minor misbehaviors.

Tracking of Per-Pupil Funding

AEPs should be required to report spending per student data on a school report card. There have been problems in the past with developing a system to track funding of students who transition from a sending school to an AEP. School districts should allocate a percentage of funding to AEPs equal to or greater than the percentage of students enrolled in AEPs. AEPs also require additional funding for special education; therefore, school districts should be required to spend a percentage of categorical funds for AEPs that equals or exceeds the percentage of students with special needs at AEPs. A report card detailing spending per student data would help to address any underfunding issues in AEPs.

AEPs often lack the resources to implement the same curriculum as other district schools. A major concern is that students at AEPs are not receiving exposure to the same richness or depth of knowledge and experience as their peers enrolled at the sending schools. A report card from AEPs detailing student to teacher ratios and computer ratios would help track expenditure of resources, and also highlight any additional resources the school may need to be on par with sending schools in the district.

Transitioning Into and Out of Programs

The criterion for entering into an AEP, and subsequently returning to a regular educational setting, is currently not delineated in Kentucky's legislation. Examples of reasons for a student to be enrolled in an AEP are:

1) Possession, distribution, or use of alcohol or drugs;2) Physical attacks or fights;3) Chronic truancy;4) Possession or use of a weapon other than a firearm;

74 KRS 158.6451(1)(f).

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5) Continual academic failure;6) Disruptive verbal behavior; and7) Possession or use of a firearm.75

Additionally, although a school district may desire or intend to return students to regular schools, some students never return and suffer the consequences of an unequal education. Examples of reasons for a student to return to a regular education program are:

1) Improved attitude or behavior2) Student motivation to return3) Approval of alternative program staff4) Improved grades5) Approval of the regular school staff6) Student readiness by standardized assessment7) Availability of space in regular school.76

However, as AEPs are not regulated, tracked or accounted for in Kentucky, a student's entrance into and return from these programs is completely subjective for each school district.

Parent Involvement

Parental involvement information should also be required for AEPs on report cards. It is important for parents to be involved in all educational decisions made regarding the child while he or she attends the AEP. Parent involvement is a necessary mandate because of past practices where parents have been discouraged or prohibited from participating in their children's alternative education. AEPs should also be required to report data on parental involvement to ensure additional programs can be developed to address any problematic areas in parent participation.

Conclusion

In order to address and dismantle the School-to-Prison Pipeline Kentucky needs to ensure its commitment to providing an efficient system of common schools to all of its students. But beyond the scope of the legal duty to provide equality in education, there lies a duty to continuously improve educational practices, improving the quality of education for our students. Examination of the realities of AEPs in Kentucky has revealed that these programs, operating somewhat outside of the system of common schools, have denied some students both quality and equity in their education. The Kentucky Department of Education has the responsibility of remedying these current inadequacies to ensure that each student in Kentucky has equal access to the common system of schools. This will be the first major and important step that AEPs should take in dismantling the Pipeline and disposing of the racial disparities that exist in the Kentucky public education system.

75 "Public Alternative Schools and Programs for Students at Risk of Education Failure: 2000-01, National Center for Education Statistics, U.S. Department of Education," at 17, http://nces.ed.gov/ pubsearch/pubsinfo.asp?pubid=2002004%20.

76 Id. at 23.

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ISSUE BRIEF: RACIAL DISPARITIES IN SCHOOL DISCIPLINE Children's Law Center, Inc.

In the wake of tragic mass violence in public schools arises a segment of reactionaries who seek to make schools safer by arming school personnel with more intense practices for exclusionary discipline. Legislators and school administrators propose and implement ideas such as zero-tolerance policies, placement of police or more resource officers inside schools, and even calling in the National Guard to patrol and protect schools.1 But how will increasing the intensity of policing in schools, coupled with exclusionary, zero-tolerance discipline policies impact the students who are already marginalized by exclusionary practices?

This issue brief will summarize the well-documented racial disparities that occur in school discipline. Additionally, this brief will illuminate the inequity in perpetuating these disparities, addressing the impact of exclusionary practices, such as suspension, expulsion, and arrest on educational attainment. Finally, this brief proposes evidence-based practices, restorative justice, and professional development in the areas of cultural and racial equality as alternatives to unequal and exclusionary discipline practices.

I. THE SCHOOL-TO-PRISON PIPELINE

From the outset, it is important to note that over the last two decades, there has been a decline in youth crime.2 Of the crime that does exist, far from all those committing crimes are arrested. Of those arrested, most teenage delinquents do not become adult criminals.3 In fact, research has clearly shown that, in general, schooling is the largest factor in reducing criminal activity.4 However, schooling in the United States has become increasingly policed as districts gravitate toward standardization, zero tolerance, and exclusionary discipline policies. The public school system and the criminal justice system have merged, cultivating one of the most notorious civil rights issues of this generation: the school-to-prison pipeline.

1 See S.B. 3692, 112th Cong., 2d Sess. (2012).

2 Thalia Gonzalez, "Keeping Kids in Schools: Restorative Justice, Punitive Discipline, and the School to Prison Pipeline," 41 J.L. & Educ. 281, 287 (April 2012), citing Jeffrey A. Butts & Daniel P. Mears, "Trends in American Youth Crime," Juv. Just. & Delinquency 23 (2011).

3 David S. Kirk & Robert J. Sampson, "Juvenile Arrest and Collateral Educational Damage in the Transition to Adulthood," 86 Soc. of Educ. 36, 38 (Jan. 2013).

4 Michael Rocque & Raymond Paternoster, "Understanding the Antecedents of the "School-to-Jail" Link: The Relationship Between Race and School Discipline," 101 J. Crim. L. & Criminology 633, 634 (Spring 2011), citing Lance Lochner & Enrico Moretti, "The Effect of Education on Crime: Evidence from Prison Inmates, Arrests, and Self-Reports," 94 Am. Econ. Rev. 155, 183 (2004).

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A student can encounter a continuum of entry points that will propel him or her down the school-to-prison pipeline, including school-based suspensions, expulsions, or alternative education program placement, and including more serious legal infractions or probation violations, all of which can ultimately involve the juvenile justice system, criminal prosecution, and incarceration in the adult penal system.5

A. Policing and School Arrests

Although overall crime has decreased in the past twenty years, nine percent of male youth aged ten to seventeen years are arrested annually.6 One quarter of those arrests occur at school.7 The high incidence of arrests at school is a new pattern. Children are much more likely today to be arrested at school than their parents were a generation ago.8

Part of the reason for the new trend comes from increased police presence in schools, which has significantly increased over the past decade. Outside of prison and jail inmates, public school students are perhaps the most policed group in the country right now.9 School districts in some major cities have established their own police departments, which are larger than the entire police departments in some smaller cities. For example, New York City's school safety division is larger than the entire police force in Washington, D.C., Detroit, or Boston.10 Nationally, the use of surveillance cameras in schools has increased from 19 percent to 43 percent between 1999 and 2006.11 In 2005, 68 percent of students reported the use of security guards or police officers present in their

5 Gonzalez, supra note 2, at 292, citing Advancement Project, Test, Punish, and Push Out: How "Zero Tolerance" and High-Stakes Testing Funnel Youth into the School-to-Prison Pipeline 18 (2010), available at http://www.advancementproject.org/sites/default/files/publications/ rev_fin.pdf.

6 Kirk & Sampson, supra note 3, citing Office of Juvenile Justice and Delinquency Prevention 2009.

7 Kirk & Sampson, supra note 3, at 37.

8 Gonzalez, supra note 2, at 283, citing Advancement Project, Test, Punish, and Push Out: How "Zero Tolerance" and High-Stakes Testing Funnel Youth into the School-to-Prison Pipeline 18 (2010), available at http://www.advancementproject.org/sites/default/files/publications/ rev_fin.pdf.

9 Id.

10 Gonzalez, supra note 2, at 288.

11 Zachary W. Best, Note, "Derailing the Schoolhouse-to-Jailhouse Track: Title VI and a New Approach to Disparate Impact Analysis in Public Education," 99 Geo. L.J. 1671, 1677 (Aug. 2011), citing Advancement Project, Test, Punish, and Push Out: How "Zero Tolerance" and High-Stakes Testing Funnel Youth into the School-to-Prison Pipeline 18 (2010), available at http://www.advancementproject.org/sites/default/files/publications/rev_fin.pdf.

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schools, up 14 percent from 1999.12 To get into school every day, 93,000 students in New York City alone pass through metal detectors or subject to searches.13

Not surprisingly, the increased presence of law enforcement in schools contributes to more juvenile arrests made at schools for infractions that, a generation ago, would have been handled by teachers or administrators.14 For example, in Clayton County, Georgia, when police officers were introduced into the schools, referrals directly from the schools to juvenile court increased 600 percent over a three-year period, but, during that same time period, there was no increase in the number of serious offenses or safety violations.15 Similar spikes in criminalization of student behaviors upon introduction of police into the school system have been documented in Philadelphia, Pennsylvania, Denver, Colorado, Los Angeles, California, Baltimore, Maryland, and the state of Florida.16 In Philadelphia, for instance, 4,361 students were taken from the classroom directly into police custody during the 2007-2008 school year.17

B. Exclusionary Discipline

Although increased policing in schools contributes significantly to criminalization of minor students' behaviors, exclusionary discipline practices play a somewhat more subtle role in constructing the school-to-prison pipeline. Exclusionary discipline practices include suspension from school, expulsion, or involuntary placement into a disciplinary alternative education program. Data regarding rates of suspension and expulsion is generally more transparent than data involving placement in alternative programs. This is because alternative education programs, for the most part lack definition and accountability. In other words, school districts are

12 Id.

13 Id.

14 Gonzalez, supra note 2, at 288 ("The collaboration between schools and law enforcement has increased the number of youth referred to juvenile court for minor misbehaviors that in the past would have likely been handled by school administrators"), citing Aaron Kupchik, Homeroom Security: School Discipline in an Age of Fear, 85 (2010) ("[S]chool resource officers often look for ways to redefine misbehavior as criminal, even when the label doesn’t apply"); see also Best, supra note 11, at 1680 ("[I]ncreased involvement of security guards and police officers in schools has made student encounters with law enforcement more likely, including fines and arrests for events traditionally handled by teachers and administrators").

15 Gonzalez, supra note 2, at 288, citing M. Lynn Sherrod, Bryan Huff & Steven Teske, "Childish Behavior; Criminal Behavior," Huntsville Times, June 1, 2008, A23.

16 See Gonzalez, supra note 2, at 288.

17 Best, supra note 11, at 1673, citing Advancement Project, Test, Punish, and Push Out: How "Zero Tolerance" and High-Stakes Testing Funnel Youth into the School-to-Prison Pipeline 18 (2010), available at http://www.advancementproject.org/sites/default/files/publications/ rev_fin.pdf.

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endowed with much discretion in creating and implementing their own alternative education programs, but little oversight exists to ensure that students who are placed in alternative education programs receive an adequate education.

As for suspension from school as an exclusionary discipline practice, from 1974 to 2000, the number of students suspended from school each year nearly doubled.18 In 2006, one out of every fourteen students was suspended at least once during the academic year.19 The increase in zero tolerance policies is partially to blame for taking disciplinary discretion out of the hands of school personnel and mandating suspension or expulsion for certain infractions. On the other hand, poor implementation of those policies in a school's code of conduct is also to blame for providing harsh consequences for vaguely-defined infractions. For instance, in Detroit public schools, students can be suspended for twenty days for insubordination, talking or making noises in class, or public displays of affection.20 The same consequence is available for more serious infractions such as bringing drugs or weapons to school. About 90 percent of public schools have some sort of zero tolerance policy in place.21 Forty-one states require their schools to report certain infractions to law enforcement.22 Thus, as schools attempt to comply with mandates to make school "safer," they compose discipline codes that rely heavily on exclusionary discipline practices. The result is a code of conduct that provides too little discretion in administration of discipline, but too much discretion in defining the conduct to be disciplined.

18 Gonzalez, supra note 2, at 283, citing Johanna Wald & Daniel Losen, "Defining and Redirecting a School-to-Prison Pipeline," 99 New Directions for Youth Dev. 9, 10 (2003); see also Best, supra note 11, at 1676, citing Daniel J. Losen & Russell J. Skiba, Suspended Education: Urban Middle Schools in Crisis 2 (2010), available at http://civilrightsproject.ucla.edu/research/k-12-education/school-discipline/suspended-education-urban-middle-schools-in-crisis/Suspended-Education_FINAL-2.pdf.

19 Gonzalez, supra note 2, at 283, citing Advancement Project, Education on Lockdown: The Schoolhouse to Jailhouse Track (2005), available at http://www.advancementproject.org/sites/ default/files/publications/FINALOLrep.pdf.

20 Best, supra note 11, at 1677, citing Advancement Project, Test, Punish, and Push Out: How "Zero Tolerance" and High-Stakes Testing Funnel Youth into the School-to-Prison Pipeline 18 (2010), available at http://www.advancementproject.org/sites/default/files/publications/rev_fin.pdf.

21 Best, supra note 11, at 1677, citing Ivan Eugene Watts & Nirmala Erevelles, "These Deadly Times: Reconceptualizing School Violence by Using Critical Race Theory and Disability Studies," 41 Am. Educ. Res. J. 271, 281 (2004).

22 Gonzalez, supra note 2, at 288, citing Daniel J. Losen & Russell J. Skiba, Suspended Education: Urban Middle Schools in Crisis 11 (2010), available at http://www.splcenter.org/sites/ default/files/downloads/publications/Suspended_Education.pdf.

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II. RACE AND DISCIPLINE

In 2000, black students represented 17 percent of all public school students, butthey accounted for 34 percent of school suspensions.23 Six years later, in 2006,black students again represented 17 percent of all public school students, butthey accounted for 37.4 percent of all suspensions and 37.9 percent of allexpulsions.24 This pattern of racial disparity in administration of school discipline,especially exclusionary discipline practices, has been well-documented over thepast thirty-five years.25 The disproportionate impact of exclusionary discipline onminority students compared with their white counterparts is undisputed. Forinstance, in the 2006-2007 school year, no state suspended more white studentsthan black students.26 Black students are also twice as likely as white studentsto be educated in a more restrictive environment, such as an alternativeeducation program.27

Black students are not only referred for discipline more often than their whitepeers, but they are also subjected to harsher consequences for less seriousbehavior and for more subjective reasons than white students.28 In other words,"minorities are more likely to be given extreme forms of punishment, despite notbeing involved in more serious acts."29 For example, one study found that whitestudents were referred to the office more frequently for "offenses that appearmore capable of objective documentation: smoking, vandalism, leaving without

23 Best, supra note 11, citing NAACP Legal Def. & Educ. Fund, Inc., Dismantling the School-to-Prison Pipeline 7 (2005), available at http://naacpldf.org/files/publications/Dismantling_the_ School_to_Prison_Pipeline.pdf.

24 Gonzalez, supra note 2, at 283, citing NAACP Legal Def. & Educ. Fund, Inc., Annual Report 43 (2009), available at http://naacpldf.org/files/publications/NAACPLDF_2007-2009_Annual_ Report.pdf.

25 Best, supra note 11, at 1673, citing Russell J. Skiba et al., The Color of Discipline: Sources of Racial and Gender Disproportionality in School Punishment 1, Ind. Educ. Pol’y Center, Policy Research Report #SRS1 (2000), available at www.indiana.edu/safeschl/cod.pdf.

26 Gonzalez, supra note 2, at 292, citing Advancement Project, Test, Punish, and Push Out: How "Zero Tolerance" and High-Stakes Testing Funnel Youth into the School-to-Prison Pipeline 18 (2010), available at http://www.advancementproject.org/sites/default/files/publications/rev_fin.pdf.

27 Torin D. Togut, Symposium, "Keeping the Needs of Students with Disabilities on the Agenda: Current Issues in Special Education Advocacy: The Gestalt of the School-to-Prison Pipeline: The Duality of Overrepresentation of Minorities in Special Education and Racial Disparity in School Discipline on Minorities," 20 Am. U. J. Gender Soc. Pol’y & L. 163 (2011), citing Overidentification Issues Within the Individuals with Disabilities Education Act and the Need for Reform: Hearing Before the H. Comm. on Educ. and the Workforce, 107th Cong. 26-42 (2001) (testimony of Rep. Chaka Fattah).

28 Id. at 177, citing Russell J. Skiba, et al., The Color of Discipline: Sources of Racial and Gender Disproportionality in School Punishment, 16 (2000).

29 Rocque & Paternoster, supra note 4, at 634, citing Russell J. Skiba et al., "The Color of Discipline: Sources of Racial and Gender Disproportionality in School Discipline," 34 Urb. Rev. 317, 331-332 (2002).

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permission, and obscene language. … In contrast, African American students were referred more often for disrespect, excessive noise, threat, and loitering, behaviors that would seem to require more subjective judgment."30 Overall, harsher sanctions for minor behaviors such as tardiness, absences, non-compliance, and disrespect have cultivated a systematic way to push students, particularly black students, out of school.31

These types of exclusionary disciplinary practices, which remove students from the school community and academic instruction, have been shown to contribute to delinquency, ultimately perpetuating the school-to-prison pipeline.32 Meanwhile, exclusionary discipline practices have continuously been shown to neither deter nor correct problematic behaviors.33 Instead, it has been well-documented that exclusionary discipline practices, suspensions, expulsions, and zero tolerance policies have significantly increased minority representation in the juvenile justice system.34

A. Causes of Racial Disparity in Discipline

Much research has been conducted to attempt to isolate factors that may explain racial disparities in school discipline, and those studies have largely found that an institutional, systemic factor is to blame.35 For instance, there is no evidence that racial disparities in school discipline can be explained through higher rates of disruption among black

30 Russell J. Skiba, Suzanne E. Eckes & Kevin Brown, "African American Disproportionality in School Discipline: The Divide Between Best Evidence and Legal Remedy," 54 N.Y.L. Sch. L. Rev. 1071, 1089 (2009/2010).

31 Gonzalez, supra note 2, at 287.

32 Id. at 287-288, citing Eugene Maugin & Rolf Loeber, "Academic Performance and Delinquency," 20 Crim. & Just. 145-264 (1996).

33 See Gonzalez, supra note 2, at 288, 297 ("Many schools have manifested punitive crime control measures by relying on surveillance technologies and full-time law enforcement officers (citations omitted) despite the fact that there is little to no evidence that these measures or zero tolerance policies served as an effective deterrent") ("As the 2006 American Psychological Association ten-year evidentiary review of zero tolerance policies concluded, the presence and use of exclusionary zero tolerance policies did not improve school safety"), citing American Psychological Association Zero Tolerance Task Force, "Are Zero Tolerance Policies Effective in the Schools?: An Evidentiary Review and Recommendations," 63 Am. Psych. 852, 853-854 (2008).

34 Gonzalez, supra note 2, at 292, citing Advancement Project, Test, Punish, and Push Out: How "Zero Tolerance" and High-Stakes Testing Funnel Youth into the School-to-Prison Pipeline 18 (2010), available at http://www.advancementproject.org/sites/default/files/publications/rev_ fin.pdf).

35 See, e.g. Kirk & Sampson, supra note 3, (finding that "institutional responses and disruptions in students’ educational trajectories, rather than social-psychological factors, are responsible for the arrest-education link").

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students.36 Researchers have instead found that "even when we control for differences in behavior, student demeanor or personality (concentration, extroversion, closeness with teacher), grades, and other factors, African-American students are both more likely to be disciplined and have more disciplinary reports than other students."37 The "process of continued discrimination and disengagement may be seen as early as the elementary years and continues over time."38 Likewise, in examining factors leading to higher rates of dropout among black students, researchers have found little evidence that factors such as educational expectations, school attachment, or friend support play nearly as large a role as institutional responses and increasingly punitive zero tolerance educational climates in the "path to dropout."39

Suggesting the darkest explanation for the clear discrepancies in school discipline for black and white students, many studies have tested the "underclass" hypothesis and found disparities in the dispersal of educational resources in response to perceived racial threat.40 In other words, "[t]here is a pervasive perception that black males are 'threatening' and 'deviant.' These fears, whether conscious or subconscious, apparently contribute to group action."41 In the United States, we have an "underclass" which is disproportionately black and brown.42 "[A]s the underclass grows, so does the use of prisons as a means to protect the dominant position of those at the top of the social hierarchy."43 Thus, the school-to-prison pipeline becomes justified by the need to protect the safety of students.44 Under this theory, once a student is arrested, the

36 Skiba, Eckes & Brown, supra note 30, at 1089; see also Rocque & Paternoster, supra note 4, at 662 ("[D]isproportionality in discipline is not explained by differential behavior and is thus unjustified").

37 Rocque & Paternoster, supra note 4, at 663.

38 Id. at 662.

39 Kirk & Sampson, supra note 3, at 55.

40 India Geronimo, Symposium, "Systemic Failure: The School-to-Prison Pipeline and Discrimination Against Poor Minority Students," 13 J.L. Soc’y 281, 297-298 (Fall 2011), citing H. George Fredrickson, Social Equity and Public Administration: Origins, Developments, and Applications 110 (M.E. Sharpe 2010).

41 Id. at 297, citing Andrew Lucas Blaize Davies & Alisa Pollitz Worden, "State Politics and the Right to Counsel: A Comparative Analysis," 43 LAW & SOC'Y REV. 187, 195 (2009) (noting that "racial threat [hypothesis]" posits that "up to a majoritarian tipping point, there is a positive correlation between proportions of racial minorities and repressive policies").

42 Id. at 296.

43 Id., citing Kevin B. Smith, "The Politics of Punishment: Evaluating Political Explanations of Incarceration Rates," 66 J. POL. 925, 927 (2004).

44 Best, supra note 11, at 1677.

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school is validated in some pre-existing notion of the child's deviant behavior.45

It is nearly impossible to show "absolute proof" of racial discrimination. However, based on the existing research, it is clear that "some form of systematic bias in the use of school suspension and expulsion."46 Thus, certain processes at the school level contribute to the school-to-prison pipeline,47 and several theories account for why, in an outwardly "equal" system, clear biases exist when it comes to disciplining students of color. For example, "marginalizing students may be attractive where it (1) immediately relieves school administrator fatigue, (2) extends the zero tolerance and punitive approach that has plagued the criminal justice system and allows administrators and politicians to appear "tough," (3) reduces students' competition for resources, (4) rids school officials of the task of educating problem students, and (5) artificially boosts accountability testing scores."48 Additionally, it does not cost much to ex-clude a student from the educational setting; nor does it require individualized decision-making by an administrator when a child is simply referred to law enforcement.49 Therefore, because these options require less expense of resources, they are attractive practices for administrating discipline.

B. Negative Impacts: Perpetuating the Pipeline for Students of Color

Results of a recent longitudinal study that controls for more personal characteristics leading to high school dropout, such as neighborhood, family, peer, and individual characteristics, show that arrest has a direct effect on high school dropout rate, especially among minority students.50 These results imply that institutional responses to arrest, rather than social-psychological factors, are responsible for the negative impact arrest has on educational attainment.51 "Indeed, by ruling out the importance of such person-level mechanisms, we can direct attention to

45 Kirk & Sampson, supra note 3.

46 Togut, supra note 27, at 179, citing Rebecca Gordon et al., "Facing the Consequences: An Examination of Racial Discrimination in U.S. Public Schools," (Mar. 2000), available at http://eric.ed.gov/PDFS/ED454323.pdf.

47 Geronimo, supra note 40, at 292.

48 Id. at 282-283.

49 Id. at 294.

50 Kirk & Sampson, supra note 3.

51 Id.

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the importance of institutional responses and the increasingly punitive 'zero tolerance' educational climate along the path to dropout."52

A student's relationship with school staff members and teachers strongly influences his or her academic engagement, academic achievement, discipline, and dropout potential.53 Therefore, a discrimination against black students in the early stages of their school years, such as in elementary school, can have particularly devastating consequences for later in life.54 When a student is arrested, teachers and administrators perceive that student's behavior as intensely worse than "normal" delinquency, and they are more likely to adversely react to that student, triggering further alienation from school.55 To the extent that school personnel or law enforcement in the school setting initiate the arrest, the alienation increases. Particularly as schools unequally apply exclusionary practices to minority students, those students become more alienated from school and also more likely to engage in the types of behaviors the exclusionary policies were intended to prevent.56

Arrest decreases the odds of high school graduation by over 70 percent.57 Additionally, arrest during adolescence hinders the transition to adulthood in other ways.58 Even if an arrested student is permitted to return to school, that student is already dangerously close to falling in to the school-to-prison pipeline, or at least to potential dropout. For instance, students who have been arrested may accrue unexcused absences that result in failing grades or being dropped from school because of excessive absences.59 Students who have been arrested may voluntarily drop out because of alienation from school or because he or she recognizes the stigma of a criminal record.60 Contact with the criminal justice system limits a student's future employment opportunities.61

52 Id. at 55, citing Kathleen Nolan, Police in the Hallways: Discipline in an Urban High School, University of Minnesota Press (2011).

53 Id. at 39.

54 Rocque & Paternoster, supra note 4, at 638.

55 Kirk & Sampson, supra note 3, at 39.

56 Best, supra note 11, at 1679.

57 Kirk & Sampson, supra note 3, at 41, citing Jon Gunnar Bernberg & Marvin D. Krohn, "Labeling, Life Chances, and Adult Crime: The Direct and Indirect Effects of Official Intervention in Adolescence on Crime in Early Adulthood," 41(4) Criminology 1287-1318 (2003).

58 Id. at 54.

59 Id. at 40.

60 Id.

61 Id.

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School-based arrest can also result in devastating psychological effects, including public humiliation, diminished self-worth, distrust of law enforcement, distrust of the school personnel, and ultimate alienation from school.62

Consistent documentation has against found that rather than making schools safer places, exclusionary disciplinary policies further deprive students of educational opportunities.63 In fact, in a 2010 report, The Advancement Project noted that punitive discipline policies have led to a tripling of the national prison population from 1987 to 2007.64 Thus, "although zero tolerance has given some school and community stakeholders a sense of security by temporarily emptying schools of students with 'violent' dispositions and putting them in prisons, these policies have done little to remove the despair, alienation, fear, and violence that pervade both U.S. schools and U.S. society."65

III. RECOMMENDATIONS

School districts have the responsibility of implementing effective strategies tocombat racial disproportionality in discipline practices. "Even if discrepancies indiscipline are not racially motivated, the overrepresentation of black students andthose of lower socioeconomic status in school discipline contributes to racialstratification in school and society."66 This "stratification" in the past has broughtabout landmark lawsuits such as Brown v. Board of Education and, morerecently, Parents Involved in Community Schools v. Seattle School District No. 1.However, there are numerous hurdles involved in taking legal action based on

62 Best, supra note 11, at 1680, citing The Pub. Policy Research Inst., Study of Minority Overrepresentation in the Texas Juvenile Justice System Final Report (2005).

63 Gonzalez, supra note 2, citing Advancement Project, Education on Lockdown: The Schoolhouse to Jailhouse Track (2005), available at http://www.advancementproject.org/ sites/default/files/publications/FINALEOLrep.pdf; Augustina Reyes, Comment, "The Criminaliza-tion of Student Discipline Programs and Adolescent Behavior," 21 St. John’s J. 73, 77-78 (2006); Mississippi Youth Justice Project, Southern Poverty Law Center, Effective Discipline for Student Success: Reducing Student and Teacher Dropout Rates in Mississippi (2008), available at http://www.splcenter.org/sites/default/files/downloads/effective_discipline-MS.pdf; Heather Cobb, "Separate and Unequal: The Disparate Impact of School-Based Referrals to Juvenile Court," 44 Harv. C.R.-C.L. L. Rev. 581, 582-88 (2009); Deborah N. Archer, "Introduction: Challenging the School to Prison Pipeline," 54 N.Y.L. Sch. L. Rev. 867, 868-70 (2010); (other citations omitted).

64 Id., citing Advancement Project, Test, Punish, and Push Out: How "Zero Tolerance" and High-Stakes Testing Funnel Youth into the School to Prison Pipeline (2010), available at http://www.advancementproject.org/sites/default/files/publications/rev_fin.pdf.

65 Best, supra note 11, at 1679, citing Ivan Eugene Watts & Nirmala Erevelles, "These Deadly Times: Reconceptualizing School Violence by Using Critical Race Theory and Disability Studies," 41 Am. Educ. Res. J. 271, 282 (2004).

66 Togut, supra note 27, at 178, citing Christine Bowditch, "Getting Rid of Troublemakers: High School Disciplinary Procedures and the Production of Dropouts," 40(4) Soc. Problems 493, 506 (Nov. 1993).

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statistical disparities. Thus, we are left with extra-judicial, practical, evidence-based approaches for combating this major civil rights issue within our schools.67

Compiling some of the best practices and recommended approaches to ending racial disparities in exclusionary discipline, the Children's Law Center recom-mends the following courses of action:

1. Schools and children's advocates should work together to address theschool-to-prison link in elementary and intermediate grades, promising agreater chance of dissolving the link for any given child.68

2. Legislators, educational policy-makers, and educational institutions musttake a holistic approach to disincentivizing race disparities in disciplinaryaction, and should instead adopt incentives that allow each child a realchance.69

3. Educational institutions should recognize the impact of outside factors onstudent behavior that may also lead to discipline disparities, including:

• Residential segregation and unequal housing which createisolated, poor schools;

• Extreme punitive approaches to misconduct in the criminal justicesystem;

• Existing incentives for school administrators to exclude students;and

• Perceptions of poor and minority students that encouragemarginalization.70

4. States should provide incentives to increase accountability in severalareas, including:

• Operation of alternative education programs• Increasing graduation rates, beginning with incentives in intermediate

grades• Elimination of zero-tolerance policies• Adoption of restorative justice practices• Adoption of positive behavior support practices• Implementation of stringent due process procedures for school

discipline matters• Quality cultural and diversity training for all school personnel who

interact with students, including school resource officers• Promotion of respectful school climates71

67 Skiba, Eckes & Brown, supra note 30, at 1112.

68 See Rocque & Paternoster, supra note 4.

69 Geronimo, supra note 40, at 284.

70 Id. at 298.

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5. Communities should seek to improve the quality of educational servicesfor all children.72

71 Id. at 299.

72 Togut, supra note 27, at 179.

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WHY SHOULD SCHOOLS CHOOSE TO ADDRESS STUDENT MISBEHAVIOR WITHIN THE SCHOOL CODE OF CONDUCT INSTEAD OF RELYING UPON

EXCLUSIONARY DISCIPLINE PRACTICES AND JUVENILE COURT PROSECUTION?

Reprinted with permission, Children's Law Center, Inc.

The Negative Impact of Exclusionary School Discipline, Including Prosecuting Children for Misbehaviors that Can be Addressed within the School Environment

The annual costs to taxpayers for a child in the detention system is more than $97,000 per year. The cost to society for a life of crime of a high risk youth is $3.8 million dollars. Investing in the future of our youth through education and treatment results in lower costs and greater benefits. The annual cost of after-school programs is $3800, a public university education is $22,000 and Jobs Corp Training is $39,000. The benefit to society through the lifetime tax contributions of a four year degree holder is $1,000,000. Community based treatment programs can yield benefits of up to $13 for every dollar spent as well as reducing recidivism by up to 22 percent.

• http://www.justicepolicy.org/images/upload/09_05_REP_CostsofConfinement_JJ_PS.pdf

• http://blueprintky.org/documents/12pub_Ending-the-use-of-Incarceration-for-Status-Offenses-in-Kentucky.pdf

Students who experience out-of-school suspension and expulsion are far more likely to drop out of high school, which has a detrimental economic effect on society as a whole. A high school dropout will earn $400,000-$485,000 less over a lifetime than a high school graduate. The loss in tax revenue to state and federal governments is in the billions of dollars. Healthcare is also affected by higher dropout rates as dropouts have poorer health and lower life expectancies. It is beneficial to society to find alternatives to exclusionary discipline practices for both economic and healthcare reasons.

• American Academy of Pediatrics, "Out-of-School Suspension andExpulsion", February 23, 2013. http://pediatrics.aappublications.org/content/131/3/e1000.full#sec-5

• Shore R, Shore B. "Kids count indicator brief: reducing the highschool dropout rate," Baltimore, MD: The Anna E. Casey Foundation;2009.

• National Institutes of Health. "Pathways linking education to health,"Washington, DC: National Institutes of Health; 2003.www.federalgrants.com/PATHWAYS-LINKING-EDUCATION-TO-HEALTH-4663.html

Parents whose actions or neglect contribute to the child's misbehavior should be held accountable. Kentucky statutes allow for parents of children adjudicated as public offenders to be fined if the court finds that the guardian has failed to exercise reasonable

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parental control and this failure is the proximate cause of the act the child was adjudicated for. (KRS 610.180). The court may also order parents or guardians to participate in treatment or social service programs ordered for the child. (KRS 610.160). It is also possible for the court to assess detention costs of a child to parents if a child is adjudicated guilty as habitual truant or public offender and; 1. The child has previously been adjudicated guilty as a habitual truant or public offender or is now being considered for transfer as a youthful offender, 2. Failure of neglect of the parent to exercise control substantially contributed to the adjudicated act; and 3. The parent has the ability to pay the fees ordered. (KRS 610.295)

Exclusionary Discipline policies which separate children from the educational environ-ment have a large impact on the achievement gap and graduation rates, significantly impacting youth of color at a disproportionate rate.

• Breaking Schools' Rules: A Statewide Study of How SchoolDiscipline Relates to Students' Success and Juvenile JusticeInvolvement located at http://justicecenter.csg.org/resources/juveniles/report

The incarceration of children removes them from home and places children with other young people, many of whom have committed more serious, violent offenses.

• In Kentucky, as in many other states, all children charged with status orpublic offenses or offenses qualifying for transfer to adult court areincarcerated together in Kentucky's Juvenile Justice Detention Centersand if committed to the Department of Juvenile Justice are placedtogether in Kentucky's Youth Development Centers.

o Final OJJDP Report on Very Young Offenders located athttps://www.ncjrs.gov/pdffiles1/ojjdp/186162.pdf

• In that environment, children learn from their peers and model even moreanti-social and oppositional behavior.

• Children then identify themselves as criminals or gang members.

Charging children in court with offenses that could be addressed within the school environment disempowers the school because it reduces the school's capacity to assume its rightful position of authority vis-à-vis the child.

• http://www.ncsc.org/sitecore/content/microsites/future-trends-2012/home/Other-pages/SchoolToPrison-Pipeline-In-Texas.aspx

Studies indicate that many schools fail to implement the full range of services available to address school discipline and often employ exclusionary discipline without thought to a more systemic approach to changing school culture. More intentional and innovative school districts have chosen to adopt systemic approaches designed to address behavior with the goal of improvement and education to ensure greater educational progress within a positive school climate.

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• National Study of Delinquency Prevention in Schools, GottfredsonAssociates, Inc, November 2000.

• http://www.pbis.org/swpbs_videos/pbs_video-creating_the_culture.aspx

The Juvenile Court Process is designed to protect a child's constitutional rights, not to ensure that the child is held accountable for all misbehavior.

• Criminal charges require proof beyond a reasonable doubt.

• Criminal charges mandate Sixth Amendment protections that invokeattorney-client privilege and protect children from the naturalconsequences of their actions.

• Criminal charges mandate Fifth Amendment protections that invoke theright to remain silent and deter open acceptance of responsibility and thusa move towards accountability.

Charging a child with a status offense removes a child who is in foster care through a dependency, neglect or abuse process from the interventions and supports of child protective services and into a role where the child will only receive services if committed to the Cabinet for Health and Family Services (CHFS) as a status offender.

• CHFS does not routinely provide pre-adjudicative services to childrencharged with status offenses.

• In KY, a child charged with a status offense can be held in juveniledetention for periods of time before and after adjudication for the violationof a valid court order.

• The child will be held in the same detention facility that houses childrencharged in juvenile and adult court with misdemeanor and felonyoffenses.

Charging a child with a public offense who is in foster care through a dependency, neglect or abuse (DNA) process can result in that child being removed from the custody of CHFS and placed in the custody of the Department of Juvenile Justice (DJJ).

• As separate state agencies, in separate Cabinets, the two governmentorganizations compete for limited dollars and frequently are both trying todivest themselves of children placed in their care.

• DJJ is not designed to meet the needs of dependent, neglected orabused children.

• DJJ does not have the same range of mental health services that areintended to be present for a child in the system because of findings ofDNA.

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National studies indicate that children pushed more deeply into the Juvenile Justice System are more likely to end up with Adult Criminal records, fail to graduate high school and fail to find employment.

• National Juvenile Justice Network, The Truth About Consequences,Studies Point Toward Sparing Use of Formal Use of Juvenile JusticeSystem Processing and Incarceration, A National Juvenile JusticeNetwork Research Summary.

• Holman, B., and Ziedenberg, J. (2006). The Dangers of Detention: TheImpact of Incarcerating Youth in Detention and Other SecureFacilities. Justice Policy Institute. Available athttp://www.justicepolicy.org/ images/upload/06-11_REP_DangersOfDetention_JJ.pdf. Accessed April 2012.

Alternatively, national studies indicate that if student misbehavior is addressed with consequences close in time to the event and at the community level, students can develop more empathy for those they have harmed, assume more responsibility for their misbehavior and have a greater chance of conforming their behavior to reasonable adult expectations.

• Improving School Climate: Findings from Schools ImplementingRestorative Practices, located at http://www.iirp.edu/pdf/IIRP-Improving-School-Climate.pdf

"In the classroom, it's about getting to a state where we can work, rather than seeing how much punishment we can heap on a student. The more kids understand that, the more they're willing to own their actions and become productive members of their class. This is different from the model that says, 'You're going to get a detention and a suspension, whether it's going to help you or not,' over and over and over again. Now the kids have the authority to make their own corrections. We didn't really believe that we could get our kids to the point where they could express remorse, sympathy and respect. Now the kids have embraced restorative practices even more than the adults."

-- Saliyah Cruz, principal

"Before implementing restorative practices, we had a lot of issues of violence, fires, and kids misbehaving in class, disrespect. What restorative practices does[sic] is change the emotional atmosphere of the school. You can stop guns, but you can't stop them from bringing fists or a poor attitude. A metal detector won't detect that."

-- Russell Gallagher, assistant principal

Research shows that there is a negative relationship between the use of suspension and expulsion and school-wide academic achievement. The use of out-of-school suspension and expulsion policies hurts not only those who are punished, but also those students the policies are supposedly designed to protect. "The Zero Tolerance Task Force of the American Psychological Association determined that schools with higher rates of suspension tend to have lower academic quality, pay less attention to school climate (social, cultural, academic, ethical), and receive lower ratings on school governance measures."

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• American Academy of Pediatrics, "Out-of-School Suspension andExpulsion", February 23, 2013. http://pediatrics.aappublications.org/Content/131/3/e1000.full#sec-2

• "Opportunities Suspended: The Devastating Consequences of ZeroTolerance and School Discipline Policies." Cambridge, MA: Civil RightsProject, Harvard University; 2000.

• Sundis J, Farneth M. "Putting kids out of school: what's causing highsuspension rates and why they are detrimental to students, schoolsand communities." Open Society Institute-Baltimore's StudentAttendance Series Policy Paper #2. Baltimore, MD: Open SocietyInstitute; September 2008:2

Juvenile Court Process

Supports

Positive Behavioral Interventions and Supports (PBIS):

PBIS is a three tiered targeted intervention approach to school discipline that ranges from school wide to child focused interventions. The system rewards positive behavior

Complaint filed with Court Designated Worker (CDW)

or an arrest is made

Petition is filed in District Court Juvenile Division

CDW Diversion Agreement (dismissed on completion)

Detention Hearing, Arraignment, Pre-Trial Conference, Youthful

Offender Hearing

Youthful Offender tried as an adult in Circuit Court

Adjudication (trial or guilty/finding of delinquency

Not guilty/no finding of delinquency (no further

action)

Guilty/finding of delinquency, Disposition

hearing is set

Court ordered conditions with no formal supervision

Monitoring or Probation form DJJ or DYS

Disposition Restitution

Commitment to DJJ

Detention

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and provides the possible consequences of problem behavior so the student is aware of expectations and consequences. This addresses the issue of many students not having the knowledge of what the good behaviors that are expected are whereas as simply punishing a student does not inform them of what they should do differently. The three tiers are:

1. The first tier targets the whole student population. It involves clearly defining andteaching behavioral expectations.

2. The second tier targets students at risk of problem behavior and usesinterventions consistent with school behavior expectations.

3. The third tier targets students with serious behavioral problems. It offers intense,individualized intervention and may include family or community involvement.

Studies have shown links between the implementation of PBIS and reductions in behavior problems and discipline, and improved academic performance and social behavior.

Student Response Teams (SRT):

The SRT is a resource to help improve student behavior and willingness to learn. It is comprised of school-based teams with support provided by district staffed Academic Achievement SRTs for students that are struggling the most. In addition, the district regularly convenes to examine data and address concerns to determine when additional supports are necessary.

Individualized Education Plan (IEP):

An IEP is implemented to ensure a student with a disability gets special education and related services as needed. Parents, teachers, school administrators and staff work together to address an individual child's needs and develop a specific plan to provide accommodations, modifications and services as needed. Progress on IEP identified areas is monitored and the IEP can be altered as progress is or isn't made.

Behavioral Intervention Plan (BIP):

A BIP is a behavioral plan developed by the IEP team for disabled children with behavioral problems. The plan is developed for an individual child after a Functional Behavioral Assessment is completed and the behavioral problem is identified. The plan identifies the problem and ensures that the behavior is dealt with appropriately and consistently throughout the school environment. The BIP should set behavioral goals, monitor the child's progress and be adjusted upon review, if needed.

Restorative Justice (RJ):

RJ focuses on the needs of both the victim and the offender and emphasizes individual accountability, healing and mediation. It encourages the offender to take responsibility for their actions by repairing the harm done to the victim. RJ relies on the theory that offenders will choose more positive behaviors once they are aware of the true impact of

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their actions. It encourages community involvement and open communication among parties involved.

Student Assistance Team (SAT):

The SAT is a school team that works with parents to implement a positive intervention process for a student. There is an emphasis on cooperation between the school, family and the community to ensure the student's success. The team meets to develop strategies to best meet the needs of the child. They consider strengths, concerns and possible interventions when developing a plan. The progress of the student is tracked so adjustments can be made.

Response to Intervention (RtI):

(RtI) is a multi-tiered approach to help students having academic difficulty. Areas of concern are identified and analyzed so an intervention plan can be developed. Once implemented, the student's progress is closely monitored at each stage to determine the need for further research-based instruction and/or intervention. RtI is used in both general and special educations in an effort meet the needs of all students and close the achievement gap.

Family Resource and Youth Services Center (FRYSC):

The FRYSC is a school based group that integrates community, school and family resources to strengthen families and remove learning barriers. The goals of the FRYSC are to improve attendance, decrease behavior/suspension issues, increase academic support, improve physical/mental health and improve parent relations. Services provided may include training, childcare, health and social services referrals, career development services and counseling.

Glossary

Department of Community Based Services (DCBS):

Department within the Cabinet for Health and Family Services, serving families and children through nine regional offices across the Commonwealth. Case Managers within the agencies manage cases dealing with neglect, abuse, child support, and custody. Referrals can be made by family members, lawyers, or judges. The ultimate goal of DCBS is keeping the family together with separation as a last resort.

Department of Juvenile Justice (DJJ):

DJJ is a department within the Department of Justice that specifically manages youth up to the age of eighteen. DJJ oversees management of youth in custody or being detained in Juvenile Detention Centers or jails within the Commonwealth. DJJ also assists in determining the most effective ways to work with families raising struggling youth in school, home, and public environments. The ultimate goal is a balance of the best interest of the public and that of the youth.

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Exclusionary Discipline:

Exclusionary discipline practices tend to be more punitive than rehabilitative. The intentions are to fix a problem occurring in a child's life, but in most cases they make matters worse. Such practices are disproportionately enforced against struggling African American children than Caucasian children. Examples of such discipline are suspension, expulsion, write-ups, and requested detention by the school.

Impact:

Impact is a statewide program that coordinates services for children with severe emotional disabilities and their respective families. It has Service Coordinators and Local Resource Coordinators serve children through eighteen Regional Interagency Councils. It has resources that include school support, in-homes services, respite, and therapeutic foster care. The client must be under eighteen and have a diagnosed psychiatric disorder along with being "severely limited" in at least two of the following to be eligible: self-care, interpersonal relationships, family life, self-direction, education, risk, and service-coordination.

Impact Plus:

A behavioral health program for Medicaid-eligible children who have complex behavioral healthcare needs. A collaborative between the multiple agencies related to services for children with disabilities in Kentucky as well as their families and stakeholders. Developed to increase availability of community-based service options and to decrease the need for in-patient care, signaling a renewed commitment to the development and expansion of community-based behavioral health services. Parent involvement is the cornerstone of the program. The goal is for parents and caregivers to be able to understand the child's needs and the systems involved, to best help the child now and in the future.

Public Offense (PO):

Actions a child is accused of committing relating to firearms and weapons or a public offense which, if committed by an adult, would be a crime.

"Public offense action means an action, excluding contempt, brought in the interest of a child who is accused of committing an offense relating to firearms and weapons or a public offense which, if committed by an adult, would be a crime, whether the same is a felony, misdemeanor, or violation, other than an action alleging that a child sixteen (16) years of age or older has committed a motor vehicle offense." KRS §600.020.

Status Offense (SO):

A crime a youth is accused of committing that they would not be cited for if they were an adult. Examples are truancy, running away, or smoking.

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SENATE BILL 200 SUMMARY

Key Points:

• SB 200 provides for a more effective use of resources to hold offendersaccountable, achieve better outcomes for youth in the juvenile justice system andtheir families, and maintain public safety.

• The provisions in the bill are based on recommendations from a bi-partisan, inter-branch task force and extensive stakeholder input.

• The bill addresses three key questions to ensure improved effectiveness andoutcomes:

(1) Are the right resources used on the right youth to produce better outcomes?The bill focuses the most expensive resources on more serious offenders byplacing restrictions on the commitment of lower level offenders and the length oftime they may be placed out-of-home.

(2) Does Kentucky use timely, quality treatment and supervision to hold youthaccountable? The bill provides for earlier access to treatment and supervisionand increases funding for high quality services in local communities.

(3) How will we know if it is working? The bill establishes oversight andperformance measurement for the policies.

Unified Juvenile Code Task Force

The task force on the Unified Juvenile Code (task force) reviewed the state's juvenile justice system and developed data driven policy recommendations that hold offenders accountable, improve outcomes for children and families, maintain public safety and control costs in the juvenile justice system.

It conducted an extensive review of Kentucky juvenile justice data, an assessment of the juvenile justice system, and a review of the research. The task force reviewed issues relating to both public and status offenses. (A status offense is one that is an offense only because of the person's age, such as truancy or running away.) It also heard information provided by a variety of juvenile justice stakeholders and members of the task force itself.

Task Force Findings

The task force analysis led to findings in four areas:

• Kentucky is spending significant resources on out-of-home residential placementfor low-level status and public offenders. More than half of the Department ofJuvenile Justice's (DJJ) $102 million annual budget goes to secure and non-secure residential facilities that cost an average of $87,000 per bed per year. In

35

addition, the Department for Community Based Services (DCBS) spent an estimated $6 million in fiscal year 2012 for out-of-home placement of status offenders.

• Lower-level offenses comprise a significant and growing share of the juvenilejustice system. Misdemeanants and violators make up the majority of youth ineach type of out-of-home placement, and more than 80 percent ofmisdemeanants and violators had two or fewer prior adjudications.

• The length of time violators and misdemeanants spend in out-of-home facilities isabout the same as those adjudicated on felony offenses and has increased 31percent and 21 percent, respectively, over the past decade. Hundreds of statusoffenders are spending 8½ months out-of-home following commitments to DCBS,and many are spending time in detention as well.

• A lack of services and alternatives in the community has likely contributed tomore expensive commitments to DJJ and DCBS and more youth being placedout-of-home.

SB 200 and Expected Impact

The legislation would:

• Focus the most expensive resources on the more serious offenders.

• Increase and strengthen evidenced-based programs, practices and policies inlocal communities.

• Improve government interface.

The reforms are projected to reduce DJJ's out-of-home population by one-third. The bill requires evaluation of facility utilization, and puts the state in position to potentially reduce capacity or close facilities. The potential savings from the public offense reforms could total up to $24 million over five years. These savings may be reinvested to ex-pand community-based programs and proven practices. The shift of lower-level youth and resources from out-of-home placement to evidence-based community programs will lead to safer communities and better outcomes for Kentucky's youth and their families.

Summary of Senate Bill 200:

Focuses the Most Expensive Resources on the More Serious Offenders

• Enhances the Court Designated Worker (CDW) procedure and establishes areview process. The bill enhances the current CDW process by requiring thatevidence-based assessments, practices, and programs be utilized to provideinterventions that are consistent with what research indicates will lead toimproved outcomes. A review process is established to provide oversight to thework of the CDW and provide recommendations. Court remains an option forcases that are unsuccessful in this process.

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• Restricts commitment of lower-level offenders in certain instances. The billrestricts misdemeanor and Class D felony offenders from being committed to DJJunless they have been adjudicated for a deadly weapon offense, an offense thatwould classify the juvenile as a sex-offender, or unless they have three or moreprior adjudications.

• Limits the length of out-of-home placement and length of supervisionbased on seriousness of the offense and risk to reoffend. The bill requiresDJJ to develop case plans using evidence-based tools that take intoconsideration the juvenile's risk level and the seriousness of the offense. Limitsare placed on the amount of time the juvenile may be held in out-of-homeplacement by DJJ for treatment and the total amount of time the youth may becommitted or probated to DJJ. Limits are also placed on the length of time ajuvenile may be on court supervision.

• Limits out-of-home placements as a sanction for supervision violations.The purpose of sanctions for supervision violations is to encourage compliancewith the terms of supervision. The bill requires the use of graduated sanctions toencourage compliance and, if not successful, permits detention for up to thirty(30) days. Supervision violations may not be used to commit, or recommit, achild to the DJJ.

Increases and Strengthens Evidence-Based Programs, Practices and Policies in Local Communities

• Requires use of objective, evidence-based tools in decision-making.Evidence-based screening and assessment tools must be utilized by courtworkers and DJJ staff to guide treatment, supervision and placement decisions.Validated risk and needs assessments are required to be utilized if available.Results of a validated risk and needs assessment must also be provided to thecourt prior to disposition.

• Establishes the fiscal incentive program to increase funding for services inlocal communities. Two grant programs are established to increase resourcesfor communities to provide local services to juveniles and their families. Ninetypercent of the funding will be allocated to a competitive grant program to reducethe number of juveniles committed or detained and to reduce the number ofdiversion-eligible cases that are brought into court. The remaining 10 percent offunding will be allocated to a second program available to judicial districts that didnot receive grant funding to provide services to youth on an as-needed basis inexceptional cases.

• Increases engagement and accountability of families. The bill provides forincreased involvement of families.

Improves Government Performance

• Requires improved data collection and reporting to measure outcomes.The bill requires increased data collection and reporting to measure the results of

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the programs and policies to ensure that they are achieving the results intended. The bill also requires the state to track juvenile recidivism outcomes.

• Establishes an Oversight Council. The bill establishes an Oversight Council tooversee implementation of the bill, review the performance data, and makerecommendations for changes or improvements based on the data. TheOversight Council will also continue to review juvenile justice and educationissues that were not addressed by this task force, such as graduated responseprotocols for schools, and out-of-home placement of status offenders.

• Requires DJJ to evaluate the use of its facilities. The bill requires DJJ toevaluate its secure and non-secure facilities once the population is reduced toconsider changes in the utilization of facilities or the potential for closure offacilities if appropriate. Savings achieved from any closures are to be reinvestedinto supervision and treatment services in the community.

• Increase training and education. The bill requires juvenile justice involvedagencies to increase training and education of workers to improve the quality ofservices and to improve outcomes.

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DEVELOPING THE LAW IN KENTUCKY COURTS RECENT KENTUCKY CASES THAT LITIGATE JUVENILE LAW ISSUES

(2000-PRESENT) Compiled by Tim Arnold, Post Trial Division Director1

I. KENTUCKY

A. Public/Status Offender Cases2

1. Final and published.

a. N.C. v. Com., 396 S.W.3d 852 (Ky. 2013).

Juvenile was entitled to Miranda warnings prior toquestioning by school principal and school resource officer.

b. M.A.M. v. Com., 402 S.W.3d 546 (Ky. App. 2013).

Order entered based solely on allegations against analleged status offender was not a "valid court order" andtherefore could not form the basis for a subsequentcontempt proceeding against the child.

c. S.B. v. Com., 396 S.W.3d 928 (Ky. App. 2013).

Nearly blank truancy evaluation form was not sufficient tomeet the jurisdictional requirements to charge a child withbeing a habitual truant. The CDW was prohibited from filingthe complaint, and the court was required to dismiss thecomplaint when it was filed in error.

d. J.L. v. Com., 332 S.W.3d 745 (Ky. App. 2011).

Primarily a Boykin case, but dicta in the case provides animportant practice tip: "a party risks the loss of anotherwise valid argument on appeal if the record before usis incomplete. Merely asking a trial court to note anobjection raised in another case is likely insufficient togarner full review by this Court because we are limited toexamination of the certified record in each individualappeal." Id. at 747.

1 This list was originally compiled with assistance from the late Gail Robinson, and has been updated with assistance from John Wampler, attorney, Juvenile Post-Disposition Branch.

2 There have been quite a number of cases recently where CHFS commitments have been vacated due to the trial courts failing to advise children of their Boykin rights. These have been omitted from this list, unless they also stand for another specific position of law.

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e. D.G. v. Com., 355 S.W.3d 476 (Ky. App. 2011).

Yet another case where sentence was vacated due tofailure to advise child of Boykin rights. However, the Courtof Appeals also held that were it not for that fact, thecommitment to the Cabinet would have been proper, dueto the court evaluating other less restrictive alternativesand finding them to not be feasible.

f. J.K.B. v. Com., 336 S.W.3d 917 (Ky. App. 2011).

A court's jurisdiction over status offenders ends ateighteen.

g. N.K. v. Com., 324 S.W.3d 438 (Ky. App. 2010).

In cases of habitual truancy, the DPP has to do home visitsand perform certain other tasks before a complaint may befiled. The CDW cannot file a habitual truancy petitionunless the DPP has done his or her job under KRS159.140(1.) The court specifically said: "it was the intentionof the legislature to make it more rigorous to resort to thecourt for intervention into a truancy matter." Also, kid hasto admit guilt; counsel can't do it for the juvenile.

h. B.H. v. Com., 329 S.W.3d 360 (Ky. App. 2010).

Similar finding regarding DPP and CDW as in N.K. Alsonotes that issues of subject matter jurisdiction may beraised at any time.

i. A.C. v. Com., 314 S.W.3d 319 (Ky. App. 2010).

A dependency petition will not suspend proceedings in astatus case. Also, juvenile proceedings must meetconstitutional muster.

j. Petitioners F v. Brown, 306 S.W.3d 80 (Ky. 2010).

Supreme Court held that KRS 17.174 permitted theDepartment of Juvenile Justice to obtain DNA samplesfrom public offenders adjudicated guilty of offenses listed inKRS 17.170 and 17.171. Court also held that DNAsampling does not violate the U.S. or Kentuckyconstitutional provisions against unreasonable searchesand seizures, due process or privacy and is not in violationof the juvenile code. Note: KRS 17.174 was repealed.KRS 17.170(2)(b) permits DNA sampling from publicoffenders fourteen or older adjudicated guilty of felony sexoffenses, incest, attempts or conspiracy to commit those

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offenses and for those declared to be juvenile sex offenders.

k. C.W.C.S. v. Com., 282 S.W.3d 818 (Ky. App. 2009).

Child who was questioned at school in counselor's officeabout sex offense allegation by law enforcement was not"in custody" for Miranda purposes. Sex offender assess-ment may be performed by DJJ evaluator who is notlicensed psychologist but works under supervision of sucha person.

l. J.S. v. Com., 304 S.W.3d 67 (Ky. App. 2009).

Family court order committing child found to be a habitualrunaway to the Cabinet was proper because child hadbeen involved with a gang and his removal from thecommunity was necessary to protect him. Evaluating KRS600.010(2)(c) and 600.020(35), this case established thatfor a child to be committed, there must be a showing that:(1) all less restrictive alternatives were attempted, or (2) nofeasible alternative to commitment existed.

m. N.L. v. Com., 323 S.W.3d 732 (Ky. App. 2009).

Child was entitled to a continuance of disposition hearingto obtain independent sex offender assessment after DJJconducted such an assessment.

n. D.E. v. Com., 271 S.W.3d 539 (Ky. App. 2008).

Throwing a rock onto the property of another does notconstitute the offense of criminal trespassing third degree.

o. K.F. v. Com., 274 S.W.3d 457 (Ky. App. 2008).

Case must be remanded to family court since child was notgiven notice of contempt charge which resulted in hercommitment to the Cabinet. Further, family court erred infailing to have separate disposition hearing contrary toKRS 610.180 when child objected to combined hearing.However, commitment is a possible disposition forcontempt in status offense action.

p. S.D.O. v. Com., 255 S.W.3d 517 (Ky. App. 2008).

Court of Appeals upheld adjudication for terroristic threat-ening second degree based on note linked to child with "hitlist" included.

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q. Com. v. S.K., 253 S.W.3d 486 (Ky. 2008).

Juvenile courts have jurisdiction to enforce restitutionorders even after juveniles have turned eighteen.

r. W.D.B. v. Com., 246 S.W.3d 448 (Ky. 2007).

Infancy defense rejected. Court found evidence sufficientand rejected claim of lack of corroboration of confession.Court upheld trial court's rejection of informal adjustmentand denial of Daubert hearing concerning sex offenderevaluation.

s. B.J. v. Com., 241 S.W.3d 324 (Ky. 2007).

An adjudicatory hearing may be conducted with thejuvenile defendant voluntarily in absentia.

t. B.B. v. Com., 226 S.W.3d 47 (Ky. 2007).

Four year old child found to lack testimonial competence insex offense case. Additionally, because of child's lack ofcompetence, hearsay statements attributed to her werealso inadmissible.

u. J.D. v. Com., 211 S.W.3d 60 (Ky. App. 2006).

Boykin applies in juvenile proceedings, even when a childis represented by counsel, and court has read him his KRS610.060 "arraignment rights" (clarifying holding in D.R. v.Com., 64 S.W.3d 292 (Ky. App. 2001)).

v. N.T.G. v. Com., 185 S.W.3d 218 (Ky. App. 2006).

Juvenile court may not impose probated detentionsentence on thirteen (13) year old child when KRS635.060(4) prohibits detention for children under fourteen(14).

w. A.W. v. Com., 163 S.W.3d 4 (Ky. 2005).

Child can be found in contempt of court for violating acondition of probation. Court may impose sentence longerthan sentence that was probated. Contempt sanction maybe longer than the maximum detention time permitted for apublic offender, as statute was not intended to limit court'scontempt powers.

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x. T.D. v. Com., 165 S.W.3d 480 (Ky. App. 2005).

KRS 159.140 and 630.060 requiring that CDW may notreceive a habitual truancy complaint unless adequateassessment of reasons for truancy has been performed byDirector of Pupil Personnel must be followed since thestatutes are jurisdictional. Child's attorney must bepermitted to make closing statement at juvenile courtadjudication.

y. Q.C. v. Com., 164 S.W.3d 515 (Ky. App. 2005).

Juvenile court has inherent authority to revoke probation,and juvenile probation is sufficiently similar to adult proba-tion that KRS 533.050 applies. Due process requires theCommonwealth to file written notice of alleged violations ofprobation. However, appeal was dismissed as moot sinceQ.C. was over eighteen.

z. M.M. v. Williams, 113 S.W.3d 82 (Ky. 2003).

A juvenile who wishes to have his/her judgment stayedpending appeal must file for mandamus in the Court ofAppeals. Habeas corpus not appropriate to review issue ofwhether the judgment is stayed by operation of law.

aa. D.R.T. v. Com., 111 S.W.3d 392 (Ky. App. 2002), discretionary review denied August 13, 2003.

A person who is over eighteen at the time of disposition may not be ordered into detention as a disposition.

bb. X.B. v. Com., 105 S.W.3d 459 (Ky. App. 2003).

Before a child can be committed and removed from the home, the juvenile court must make formal findings which demonstrate that commitment and removal from the home is the least restrictive alternative.

cc. M.J. v. Com., 115 S.W.3d 830 (Ky. App. 2002), discre-tionary review denied October 15, 2003.

Trial court did not err by continuing trial for two weeks after Commonwealth announced closed, in order to allow the Commonwealth to meet the burden of proof. Continu-ations are in the sound discretion of the court, and the unavailability of the witness at the time trial commenced justified the trial court letting the Commonwealth re-open their case after announcing closed.

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dd. Com. v. Deweese, 141 S.W.3d 372 (Ky. App. 2003), discretionary review denied October 24, 2004.

Juvenile not entitled to discovery before automatic transfer hearing. KRS 610.342 not a rule of discovery, as legis-lature is not permitted to create a rule of practice and procedure. Discovery rules do not apply to preliminary hearings, such as transfer hearings.

ee. Com. v. M.G., 75 S.W.3d 714 (Ky. App. 2002).

A child has a right to personally confront the victim in a sex offense case, and a juvenile court may not violate that right by conducting an ex parte interview of the victim. Social workers are required to Mirandize a child before interviewing them, if the worker is acting as an agent of law enforcement. Juveniles have a right against self-incrimination in the disposition of a juvenile case, so a child may not be punished for not admitting to his offense as part of a sex offense evaluation.

ff. D.R. v. Com., 64 S.W.3d 292 (Ky. App. 2001).

Generally a child cannot waive counsel unless they have first had occasion to speak with counsel. (Note: modified by amendment to KRS 610.060). Boykin applies in juvenile proceedings.

gg. J.D.K. v. Com., 54 S.W.3d 174 (Ky. App. 2001).

Juvenile sex offender not required to give blood sample to the Department of Corrections for inclusion in sex offender DNA database.

2. Not final or not to be published.3

a. R.S. v. Commonwealth, 423 S.W.3d 178 (Ky. 2014).

Motion for directed verdict not required in public offensecases. Rather, juvenile who argues upon close of theevidence that the evidence is insufficient is entitled toreview under an abuse of discretion standard, using theprinciples in Jackson v. Virginia, 443 U.S. 307 (1979).Restitution against a juvenile should be awarded only aftera hearing to determine the value of the loss. In cases

3 CR 76.28(4) (c) was revised effective 1-1-07 to permit citation of unpublished decisions rendered after 1-1-03, "if there is no published decision that would adequately address the issue before the court." The opinion must be identified as unpublished and a copy must be attached to the pleading. Not final cases cannot be cited.

44

involving multiple youth, court can order one youth to repay the entire amount on the theory of joint and several liability. Juvenile restitution should be ordered in the best interest of the child, and so should not be excessive to the amount that the child can reasonably pay.

b. B.H. v. Commonwealth, 2103 WL 6145532 (Ky. App. Nov.12, 2013) (rehearing pending).

Abrogating M.A.M. v. Com., 402 S.W.3d 546 (Ky. App.2013) and finding that order based solely on allegationsagainst an alleged status offender may be a valid courtorder, and may form the basis for a contempt proceeding.

c. Com. v. McDonald, 2013 WL 5524308 (Ky. App. Oct. 4,2013).

Juvenile court does not have authority to unilaterally remand a public offense to the CDW, without the consent of the Commonwealth.

d. S.C. v. Com., 2013 WL 1844639 (Ky. App. May 3, 2013).

Mandatory conference under KRS 630.050 between CDW,child and complaining witness to determine whether thecomplaint could be waived by the child.

e. R.B. v. Com., 2013 WL 1091270 (Ky. App. Mar. 15, 2013).

A mentally retarded youth who was found guilty of ajuvenile sexual offense may be committed to theDepartment of Juvenile Justice as a public offender basedupon that charge.

f. Com. v. Bell, 2012 WL 1057966 (Ky. App. Mar. 30, 2012).

Court of Appeals upheld district court's suppression ofchild's "confession" to detectives on grounds that it was notvoluntary.

g. J.D.N. v. Com., 2012 WL 1447989 (Ky. App. Apr. 27,2012).

A court does not lose jurisdiction to order restitution simply because juvenile offender turns eighteen. The court also rejected the argument that an order to pay nearly $8,000 in restitution was not in the best interests of the child.

45

h. D.L. v. Com., 2012 WL 512623 (Ky. App. Feb. 17, 2012).

Commonwealth failed to meet its burden to prove that childstole a moped worth over $500, so its finding of felony theftby unlawful taking was incorrect. Its restitution order ofmore than $1,000 was overturned as well.

i. R.S. v. Com., 2012 WL 256141 (Ky. App. Jan. 27, 2012).Currently on MDR to Kentucky Supreme Court.

Court held that a single juvenile, found only to be complicitin a criminal mischief charge, could nonetheless still beheld fully liable for restitution for all of the actions of hisnumerous uncharged codefendants.

j. K.B. v. Com., 2012 WL 28679 (Ky. App. Jan. 6, 2012).Currently on MDR to Kentucky Supreme Court.

Court of Appeals held that joint and several liabilities injuvenile restitution matters was permissible. One keypoint: the Court held that a court may enter an order thatcodefendants are jointly and severally responsible forrestitution. So, the entry of such an order is stilldiscretionary with the individual courts and the individualcase.

k. A.H. v. Com., 2011 WL 1085639 (Ky. App. Mar. 25, 2011).

Family Court does not have the authority to extendeducational requirements to age twenty-one.

l. T.M.W. v. Com., 2011 WL 832491 (Ky. App. Feb. 25,2011).

Court committing kids to Cabinet without examining whether there were feasible least-restrictive alternatives was in error.

m. J.T. v. Com., 2011 WL 5105475 (Ky. App. Oct. 28, 2011).

A child's appeal on a habitual truancy charge becomesmoot once she turns eighteen.

n. C.S. v. Com., 2010 WL 985303 (Ky. App. Mar. 19, 2010).

Sisters should not have been found guilty of habitualtruancy when DPP only made a phone call to mother andfailed to comply with requirements of KRS 159.140(1)mandating that DPP become acquainted with child's homeconditions, determine cause of truancy and seekelimination of that cause.

46

o. R.B.J. v. Com., 2009 WL 1349219 (Ky. App. May 15,2009).

Family Court properly found that school complied with requirements of KRS 159.140(1), and school was not required to hold IEP meeting for special education student prior to filing habitual truancy complaint.

p. D.S. v. Commonwealth, 2009 WL 2633194 (Ky. App. Aug.28, 2009).

Family court's order revoking child's probation for status offense reversed because hearing was held in child's absence and there was no showing that he was served with written notice of the revocation hearing.

q. J.M. v. Com., 2008 WL 1919725 (Ky. App. May 2, 2008).

Court of Appeals held that evidence in support ofadjudication of guilt was sufficient even though onlywitness to identify J.M. previously swore out complaintagainst another person.

r. C.J.D. v. Com., 2008 WL 1918630 (Ky. App. May 2, 2008).

A juvenile is not entitled to a jury trial even when theoffense charged by the Commonwealth makes him eligiblefor declaration by the Court as a juvenile sex offender.

s. S.M. v. Com., 2008 WL 2696896 (Ky. App. Jul. 11, 2008).

Juvenile court may not order juvenile sex offenderassessment for voyeurism which is not an offense allowinga child to be declared a juvenile sex offender.

t. B.K. v. Com., 2008 WL 2780298 (Ky. App. Jul. 18, 2008).

Trial court had jurisdiction to consider beyond controlpetition even though Commonwealth failed to introduceevidence that pre-petition conference was held with theCDW pursuant to KRS 630.050.

u. M.G. v. Com., 2008 WL 4683239 (Ky. App. Oc. 24, 2008).

Case must be remanded to court for determination ofwhether KRS 159.140(1) requirements were met beforetruancy petition was filed. Court also stated that dueprocess was violated when defense counsel was not givensufficient time to prepare for truancy adjudication hearing;Boykin was not complied with since child did not evenenter an admission and court should not have held

47

contempt hearing with no prosecutor present but no reversible error under circumstances.

v. I.B. v. Com., 2008 WL 162891 (Ky. App. Jan. 18, 2008).

Case involved sixteen-year old girl charged with sex abusefirst degree based on having sexual contact with twenty-nine-year-old woman when both were intoxicated. Courtheld that adult victim should have been cautioned aboutincriminating herself in a variety of crimes, hearsay wasimproperly admitted, competency inquiry concerning fouryear old child was insufficient, and failure of DJJ to providesex offender assessment to court and counsel prior todisposition was erroneous.

w. J.W. v. Com., 2007 WL 3227436 (Ky. App. Nov. 2, 2007).

Juvenile's "confession" to sex abuse first degreeinsufficiently corroborated in violation of RCr 9.60;adjudication of guilt reversed.

x. C.R.S. v. Com., Cabinet for Health and Family Services,2007 WL 2285807 (Ky. App. Aug. 10, 2007).

District Court's decision to commit child to the Cabinetviolated least restrictive alternative mandate of KRS600.010(2)(c). Cabinet, which recommended commitment,did not justify why that was necessary and did not exploreother options.

y. K.M. v. Com., 2006 WL 1719752 (Ky. App. Jun. 23, 2006).

Miranda did not apply to preclude admission of statementsjuvenile made to social worker admitting drug use, wherethere was no allegation that juvenile was either in custodyor under interrogation by social worker when she madestatements admitting to drug use.

z. W.L. v. Com., 2004 WL 406537 (Ky. App. Mar. 5, 2004).

Finding that a child used a deadly weapon for the purposeof the robbery statute does not necessarily equal "use of afirearm" for the purpose of automatic transfer statute, KRS635.020(4).

aa. C.I. v. Com., 2003 WL 22461730 (Ky. App. Oct. 31, 2003).

Juvenile court not required to conduct a hearing on CR 60.02 motion arguing that the juvenile could not be a sexual offender because he is mentally retarded. While some evidence tended to support allegation of mental

48

retardation, that evidence was insufficient to overcome presumption that original judgment was correct.

bb. I.K. v. Foellger, 2003 WL 22271357 (Ky. App. Oct. 3, 2003).

District court may impose a no contact order as condition of release, even where that condition burdens the public school. However, district court may not continue that no contact order after commitment to the Department of Juve-nile Justice. DJJ's authority with respect to treatment and placement may not be overruled by the district court.

B. Youthful Offender Cases4

1. Final and published.

a. Dye v. Com., 411 S.W.3d 227 (Ky. 2013).

Youthful offender's confession was involuntary, whenpolice threatened juvenile with the death penalty eventhough that was not an option.

b. Grider v. Com., 404 S.W.3d 859 (Ky. 2013).

Youthful offender may be given enhanced sentence of lifewithout parole for twenty-five years based on aggravatedhomicide offense.

c. Edwards v. Harrod, 391 S.W.3d 755 (Ky. 2013).

Youthful offenders who also qualify as "violent offenders"are subject to the same limitations on parole eligibility asadults.

d. Jackson v. Com., 363 S.W.3d 11 (Ky. 2012).

Firearm enhancement for drug offenses was applicable injuvenile court, and so defendant was transferrable onoffense of trafficking in a controlled substance while inpossession of a firearm, which is a Class B felony.

4 Only those with significant application to juvenile practice are included. Only juvenile issues included in summary, so rulings on general criminal law or evidence law issues are not included unless they have special application to juvenile court.

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e. K.R. v. Com., 360 S.W.3d 179 (Ky. 2012).

Supreme Court held that complicity is enough for transferunder the "use of a firearm" prong of juvenile transfer. Italso held that when district court failed to transfer thejuvenile, writ of mandamus was an appropriate remedy forthe Commonwealth. See also K.N. v. Commonwealth, 375S.W.3d 816 (Ky. App. 2012) (same holding).

f. Chipman v. Com., 313 S.W.3d 95 (Ky. 2010).

Juvenile, who was seventeen years old, was convictedpursuant to conditional plea in the Circuit Court, KentonCounty, of second-degree robbery, and was sentenced asa youthful offender to sixty-one months' imprisonment.Juvenile appealed. The Court of Appeals affirmed. TheSupreme Court granted discretionary review, and held thatjuvenile was exempt from being sentenced as an adult. Itis important to note that the court left open the possibility ofa child remaining in adult court for sentencing if there hadbeen a stipulation that a firearm had been used in thecommission of the felony.

g. Dever v. Com., 300 S.W.3d 198 (Ky. App. 2009).

Youthful offender convicted of first degree sexual abusebased on victims being under twelve (12) was exempt fromsex offender registration pursuant to KRS 17.500(3)(a).

h. Kozak v. Com., 279 S.W.3d 129 (Ky. 2008).

Juvenile who was transferred to circuit court pursuant toKRS 635.020(2) for rape first degree but pled guilty to sexabuse first degree which would not have allowed him to betransferred must be remanded to circuit court and informedthat his guilty plea will exempt him from sentencing as ajuvenile under KRS 640.040(4) and allowed to withdrawthat guilty plea.

i. Com. v. Carneal, 2008 WL 5046730 (Ky. Nov. 26, 2008).

Three year limitations period for filing RCr 11.42 motionbegan to run when Carneal was sentenced at age fifteen,and motion filed within three years of eighteenth birthdaywas untimely.

j. Com. v. Merriman, 265 S.W.3d 196 (Ky. 2008).

Violent offender probation prohibitions of KRS 439.3401(3)do not apply to youthful offenders. KRS 640.030(2)

50

allowing probation at eighteen year old hearing takes precedence over KRS 439.3401(3).

k. Shepherd v. Com., 251 S.W.3d 309 (Ky. 2008).

Instruction on life without parole was erroneous since KRS640.040(1) does not permit that penalty for YOs but errorwas harmless since jury did not recommend that sentence.Commonwealth's statements during voir dire regardingwhether defendants deserved extra sympathy because oftheir youth did not warrant a mistrial. A violation of KRS610.220(2) concerning length of time child may be held incustody is only one factor to be considered in decidingwhether a confession is voluntary.

l. Humphrey v. Com., 153 S.W.3d 854 (Ky. App. 2004),(discretionary review denied Feb. 9, 2005).

Juvenile's waiver of juvenile transfer hearing must beknowing, voluntary and intelligent. Where only evidence ofvoluntariness of waiver was waiver form, and record wasambiguous about whether juvenile was properly advisedby counsel, hearing was appropriate to determine whetherthe waiver was knowing, voluntary and intelligent.

m. Caldwell v. Com., 133 S.W.3d 445 (Ky. 2004).

Apprendi v. New Jersey, 530 U.S. 466 (2000) does notapply to juvenile transfer proceedings. Factors relevant totransfer do not have to be submitted to a jury or provedbeyond a reasonable doubt.

n. Phelps v. Com., 125 S.W.3d 237 (Ky. 2004).

A juvenile court adjudication is not a "conviction" for thepurposes of any offense under the penal code, so ayouthful offender cannot be charged with being a "secondor subsequent offender" or a "felon in possession of afirearm" on the basis of the offender's prior juvenile courtrecord. Also, substantial defects in the degree of theoffenses for which the child was indicted warrantsdismissal of the indictment, and remand to juvenile courtfor a new transfer hearing.

o. Welch v. Com., 149 S.W.3d 407 (Ky. 2004).

Defendant was entitled to be informed of his Miranda rightsbefore being asked to make incriminating admissions at aprogram for adjudicated juvenile sexual offenders.Admissions made to counselors without benefit of Mirandawarnings are inadmissible. Admissions subsequently

51

made to sheriff's deputies, while defendant was still a resident of the treatment program, were fruit of the poison-ous tree.

p. Com. v. Jeffries, 95 S.W.3d 60 (Ky. 2002).

Juvenile entitled to a meaningful opportunity to be heard athis eighteen year old hearing. This right was denied whenthe trial court denied Jeffries the right to present evidencein mitigation, and to controvert the contents of a reportsubmitted by the Commonwealth.

q. Com. v. Townsend, 87 S.W.3d 12 (Ky. 2002).

Juvenile who agreed at his eighteen year old hearing to beremanded to a DJJ institution for six months and thenreturned to court for a decision about whether to beprobated or remanded to corrections, waived his rightunder the statute to be "finally discharged" upon thecompletion of the juvenile treatment program. (Note: KRS640.030(2) amended subsequent to this to remove the"finally discharged" language).

r. Com. v. Davis, 80 S.W.3d 759 (Ky. 2002).

Juvenile who did not challenge whether he met theminimum criterion for transfer to circuit court and trial as anadult in either the circuit or district court waived his right tomake that challenge on appeal.

s. Manns v. Com., 80 S.W.3d 439 (Ky. 2002).

Juvenile court adjudication is not a "conviction" for thepurpose of the rule of evidence permitting impeachment byprior "convictions." Statute permitting juvenile records tobe used at sentencing or for impeachment is un-constitutional to the extent that it applied to the use ofthose records as impeachment. Juvenile court adjudi-cations can be used at sentencing provided they meet theminimum qualifications provided by statute.

t. Barth v. Com., 80 S.W.3d 390 (Ky. 2001).

Co-defendant's statement, which was inadmissible at trial,was admissible at juvenile transfer hearing for the purposeof establishing probable cause. Rules of evidence do notapply in a transfer hearing.

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u. Osborne v. Com., 43 S.W.3d 234 (Ky. 2001).

Fact that burglary charge was omitted from transfer ordertransferring child to circuit court for trial as an adult onrobbery and murder charges did not deprive circuit court ofjurisdiction over burglary count. KRS 640.010 providesprocess for transferring the child, not the charge, andindictment can vary from transfer order so long as the childwould still be eligible for transfer on indicted offenses.

v. Gourley v. Com., 37 S.W.3d 792 (Ky. App. 2001).

Youthful offender entitled to have PSI done by Departmentof Juvenile Justice, rather than Probation and Parole.Court order directing Probation and Parole to do PSI in YOcase was prejudicial and reversible.

w. Stout v. Com., 44 S.W.3d 781 (Ky. App. 2000).

Decision about whether to transfer juvenile under KRS640.010 (the "eight factors test") must be supported bysubstantial evidence.

x. Darden v. Com., 52 S.W.3d 574 (Ky. 2001).

Juvenile may not be tried as an adult for mere possessionof a firearm. "Use of a firearm" is required under KRS635.020(4), and possession does not equal use.

2. Not final or not to be published.

a. Robertson v. Com., 2013 WL 1688357 (Ky. App. Apr. 19,2013) (M.D.R. granted 12/13).

Where counsel completely failed to subject the Common-wealth's case to "meaningful adversarial testing" at thejuvenile transfer hearing, the presumption of prejudice isappropriate under U.S. v. Cronic, 466 U.S. 648 (1984).

b. Bean v. Com., 2013 WL 375494 (Ky. App. Feb. 1, 2013).

The court held that the decision to transfer to circuit courtshould be made under an "abuse of discretion" standard.The court may find that a property crime is sufficientlyserious to support transfer, notwithstanding the languageof KRS 640.020(2)(b)2. Factors relating to the seriousnessof the offense can also relate to other factors, such as thebest interest of the child and the community and prospectsof adequate rehabilitation by the juvenile justice system.

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c. Lake v. Com., 2010 WL 2976530 (Ky. App. Jul. 30, 2010).

The court found that all of the asserted errors of Lake's trialcounsel either were not actual errors or did not result inprejudice to the defendant. Additionally, relief pursuant toRCr 11.42 is not available due to perjury at the trial.Therefore, the court held that Lake was not entitled to anew trial.

d. K.R. v. Com., 2010 WL 45897 (Ky. App. Jan. 8, 2010).

Circuit court properly issued writ of mandamus requiringthat child's case be transferred to that court pursuant toKRS 635.040(2) even though child did not personallyhandle the gun used in the crime.

e. London v. Com., 2009 WL 3047644 (Ky. App. Sep. 25,2009).

Trial court did not abuse its discretion by denying probation to a youthful offender based primarily on the seriousness of the offense.

f. Masengale v. Com., 2009 WL 2971788 (Ky. App. Sep. 18,2009).

Masengale should have been sentenced as a juvenile in circuit court pursuant to KRS 635.060 and KRS 640.040(4) since he pled guilty to misdemeanors after being transferred on felony charges.

g. Jackson v. Com., 2008 WL 4754851 (Ky. App. Oct. 31,2008).

Case remanded for hearing on voluntariness of plea to enhanced first degree trafficking in a controlled substance since Jackson claimed he was ineligible for transfer since juvenile offenses cannot be enhanced and trial counsel was ineffective for failing to object to transfer.

h. Rees. v. Ottman, 2008 WL 3551151 (Ky. App. Aug. 15,2008).

Corrections Commissioner properly held in contempt for refusing to follow order granting youthful offender shock probation. Youthful offender is eligible for shock probation if he is denied probation at eighteen year old hearing under KRS 640.030(2).

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i. Hooten v. Com., 2006 WL 2578297 (Ky. App. Sep. 8,2006).

The Court of Appeals held that: (1) district court did not abuse its discretion when it waived jurisdiction over sixteen year old's first degree robbery case and transferred case to the circuit court based solely on three of the eight factors relevant to transfer (seriousness, offense against person, best interest of public) and (2) statute that provided a discretionary scheme for the district court to waive jurisdiction over a juvenile offender and allow transfer of the case to the circuit court did not violate due process.

II. U.S. SUPREME COURT

A. Miller v. Alabama, 132 S. Ct. 2455 (2012)

The Eighth Amendment prohibits a sentencing scheme which mandates life in prison without the possibility of parole for juvenile homicide offenders.

B. J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011)

A child's age properly informs the Miranda custody analysis, so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer; a child's age differs from other personal characteristics that, even when known to police, have no objectively discernible relationship to a reasonable person's understanding of his freedom of action.

C. Graham v. Florida, 130 S. Ct. 2011 (2010)

Supreme Court held that: (1) Eighth Amendment prohibits imposition of life without parole sentence on juvenile offender who did not commit homicide; and (2) state must give juvenile non-homicide offender sentenced to life without parole meaningful opportunity to obtain release.

D. Roper v. Simmons, 543 U.S. 551 (2005)

Abolished the death penalty for individuals who committed their crimes while juveniles.

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56

PROJECT NAME

ISSUE BRIEF

www.pewstates.org/Publicsafety July 2013

Georgia’s 2013 Juvenile Justice ReformNew Policies to Reduce Secure Confinement, Costs, and Recidivism

Public Safety Performance Project

Issue Brief

OverviewFollowing a criminal justice overhaul in 2012, Georgia enacted House Bill 242 in 2013, which included wide-ranging reforms to its juvenile justice system based on recommendations from the Special Council on Criminal Justice Reform for Georgians. The council’s provisions of the bill will save an estimated $85 million over five years and reduce recidivism by focusing out-of-home facilities on serious offenders and investing in evidence-based programs. The bill also streamlines and revises the state code relating to juvenile justice and child welfare, including creating new processes for cases involving children in need of services.

Highlights

Problem: In fiscal 2013, the Georgia Department of Juvenile Justice, or DJJ, was appropriated $300 million, nearly two-thirds of which paid for out-of-home facilities, which include secure and nonsecure facilities.1 The state’s secure residential institutions—youth development campuses, or YDCs, and regional youth detention centers, or RYDCs,—cost an average of about $90,000 per bed per year. Despite these substantial expenditures, results were poor: More than 50 percent of adjudicated youth were readjudicated delinquent or convicted of a crime within three years of release, a rate that has held steady since 2003. For youth released from YDCs, the recidivism rate was 65 percent.

Findings: The special council conducted an extensive review of the state’s data and found that the juvenile justice system was producing poor results despite the high cost. A significant number of youth in expensive out-of-home facilities had been adjudicated for low-level offenses, many were assessed as a low risk to reoffend, and the public safety outcomes were weak. Additionally, the council found that many parts of the state had limited or no community-based programs for juvenile offenders, leaving judges with few options other than commitment to a state facility.

Reforms: The council, with technical assistance from The Pew Charitable Trusts, the Annie E. Casey Foundation, and the Crime & Justice Institute,

issued recommendations that focus state facilities on higher-level offenders; reduce recidivism by investing in evidence-based programs and practices; and improve government performance by requiring data collection and performance-based contracting. HB 242, which contained many of the council’s policy recommendations, passed both chambers of the General Assembly unanimously and was signed into law by Governor Nathan Deal on May 2, 2013. The state also appropriated $5 million in fiscal 2013 to fund a county-level voluntary incentive grant program.2

1000

1500

2000

2500

3000

3500

‘18‘17‘16‘15‘14‘13‘12‘11‘10‘09‘08‘07‘06‘05‘04‘03‘02

2,973

ACTUAL

1,917 1,908

1,305

Titletext

Figure 1:

0PROJECTED

Georgia Council’s Policies to Save $85 MillionFigure 1: Juvenile out-of-home population and projections, 2002-2018

Note: Projection includes only those reforms that were proposed by

the council. Source: Georgia Department of Juvenile Justice (historical

data); The Pew Charitable Trusts (projections)

57

The Pew Charitable Trusts

Public Safety Performance Project

Impact: The 2013 initiatives are expected to save Georgia nearly $85 million through 2018 and avoid the need to open two additional juvenile residential facilities. This will allow the state to reinvest a portion of the savings to expand community-based programs and practices proven to reduce recidivism.

Background

The 2011 General Assembly, seeking new ways to protect public safety while controlling the growth of prison costs, created the Special Council on Criminal Justice Reform for Georgians to improve the state’s adult sentencing and corrections system. The council produced a set of comprehensive, data-driven recommendations, which were adopted in HB 1176 during the 2012 session. The legislation, which passed both chambers of the General Assembly unanimously and was signed by Gov. Deal in May 2012, is projected to avert all the anticipated growth in prison population and costs through 2018, saving at least $264 million. Through accompanying budget initiatives, the

state redirected more than $17 million of the savings into “accountability” courts, such as drug and DUI courts, and other efforts to reduce reoffending.3

Following the 2012 legislative session, Gov. Deal issued an executive order extending the council’s term, expanding its membership, and broadening its focus to include the juvenile justice system. Under this mandate, the council conducted a detailed analysis of Georgia’s juvenile justice system and solicited input from a wide variety of stakeholders. The council formed two working groups, focused on community supervision and out-of-home placements, to review the analysis and consider policy options. The working groups met frequently throughout the summer and fall, and developed fiscally sound, data-driven policy options that will hold offenders accountable, increase public safety, and reduce corrections costs. These recommendations were reported back to the full council, which reviewed and adopted them. The council released its final report in December 2012.

Key Findings

Mirroring national trends, the number of youth in Georgia’s juvenile justice system declined in recent years.4 Between 2002 and 2011, the out-of-home adjudicated population dropped from 2,973 to 1,917.5

Though the number of youth in the system declined, costs remained high for Georgia taxpayers. In fiscal 2013, the appropriation for DJJ exceeded $300 million.6 Nearly two-thirds of the budget was directed to out-of-home facilities. The state’s secure facilities include YDCs, which cost $91,000 per bed per year, and RYDCs,7 which cost $88,000 per bed per year.8

“That is huge savings, and we

think not only does it improve

public safety, it also does the right

thing for providing alternatives.”

— Gov. Nathan Deal, HB 242 bill-signing ceremony,

May 2, 2013

58

Georgia’s 2013 Juvenile Justice Reform

Public Safety Performance Project

Despite these expenditures, the recidivism rate remained high. More than half of the youth in the juvenile justice system were readjudicated delinquent or convicted of a crime within three years of release. This rate has held steady since 2003.9 For youth released from YDCs, the rate was 65 percent, 6 percentage points higher than those released in 2003.10 See Figures 2 and 3.

The council’s analysis revealed five other major challenges for the state:

1 High number of lower-level and lower-risk offenders in out-of-home facilities

The council found that a majority of youth in out-of-home facilities were felony offenders, and nearly 1 in 5 were assessed as a high risk to reoffend. Among juveniles in these facilities,

however, almost 1 in 4 had been adjudicated for a low-level offense, including a misdemeanor or status offense,11 and approximately 40 percent were assessed as a low risk to reoffend.12

Looking specifically at juveniles in nonsecure residential facilities in 2011, 53 percent had been adjudicated for a misdemeanor (45 percent) or status offense (8 percent), and more than half (56 percent) of those were assessed as low risk. See Figure 4.13

2 High number of lower-risk designated felony offenders in facilities

In 1980, Georgia adopted a juvenile sentencing law called the Designated Felony Act. It required that all juveniles convicted of any of 11 serious offenses, or designated felonies, serve at least one year at a YDC.14 The initial list focused on violent

Despite High Costs, Most Youth Return to System

Note: Recidivism is defined as an adjudication of delinquency in juvenile court or a finding of guilt in adult court for an offense

committed within 3 years of release from an out-of-home facility or placement on community supervision. Source: Georgia

Department of Juvenile Justice

$50,000

$55,000

$60,000

$65,000

$70,000

$75,000

$80,000

$85,000

$90,000

$95,000

Regional youthdetention center

Youth developmentcampus

Titletext

Figure 2:

$91,126$88,125

0%

10%

20%

30%

40%

50%

60%

70%

Three-Year Recidivism Ratestext

Figure 3:

53%

65%

Juveniles released fromyouth development

campus facilities

All adjudicated juveniles

$50,000

$55,000

$60,000

$65,000

$70,000

$75,000

$80,000

$85,000

$90,000

$95,000

Regional youthdetention center

Youth developmentcampus

Titletext

Figure 2:

$91,126$88,125

0%

10%

20%

30%

40%

50%

60%

70%

Three-Year Recidivism Ratestext

Figure 3:

53%

65%

Juveniles released fromyouth development

campus facilities

All adjudicated juveniles

Figure 2: Annual cost per bed of Georgia juvenile secure placement by facility type, 2011

Figure 3: Three-year recidivism rates for Georgia youth released in 2007

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The Pew Charitable Trusts

Public Safety Performance Project

offenses such as murder, rape, and kidnapping. But over the past three decades, the number of designated felonies has grown to 29 and incorporated less-severe offenses, such as smash-and-grab burglary.15

The data revealed that youth adjudicated as designated felons were the only segment of the out-of-home population that consistently increased between 2002 and 2011. As a result, designated felons constituted 98 percent of the youth in YDCs in 2011. One reason for this was that they were spending more time in out-of-home facilities: Between 2002 and 2011, their average time served grew 13 percent.

Despite the growth in the number of designated felons, the overall risk level of these offenders had not increased. In fact, the percentage of designated felons identified as high risk remained essentially flat, at about 24 percent, while the percentage identified as low risk increased slightly, from 36 percent in 2004 to 39 percent 2011.16

3 Lack of validation and inconsistent use of risk- and needs-assessment tools

Risk- and needs-assessment and detention-assessment instruments are objective tools designed to inform key decisions at various stages in the justice process. Currently, Georgia uses the Detention Assessment Instrument to help determine whether youth should be confined pending court proceedings. The state uses another tool, the Comprehensive Risk and Needs Assessment, to evaluate each juvenile’s likelihood to be adjudicated for another crime, inform placement and supervision levels, and identify needs.

The council identified two challenges with these tools. First, in order to be effective, assessment instruments must be validated regularly and “renormed” 17 on the state’s population to ensure that they accurately predict and effectively categorize risk. Georgia’s detention instrument had never been validated, however, and the risk and needs assessment had not been validated

45% 47%

8%

Status

Misdemeanor

Felony53Low-LevelOffenses

%

More Than Half of Juveniles in NonsecureFacilities in for Low-Level OffensesGeorgia adjudicated nonsecure residential populationby offense type, 2011

Figure 4:

Source: Georgia Department of Juvenile Justice

More Than Half of Juveniles in Nonsecure Facilities in for Low-Level OffensesFigure 4: Georgia adjudicated nonsecure residential population by offense type, 2011

Source: Georgia Department of Juvenile Justice

“We know one thing for certain:

Spending $91,000 a year to lock

up a juvenile and getting 65 percent

recidivism in return is not working.

We can be smarter with taxpayer dollars.

More importantly, we can produce

a safer Georgia.”

— Chief Justice Carol Hunstein,

State of the Judiciary address, Feb. 7, 2013

45% 47%

8%

Status

Misdemeanor

Felony53Low-LevelOffenses

%

More Than Half of Juveniles in NonsecureFacilities in for Low-Level OffensesGeorgia adjudicated nonsecure residential populationby offense type, 2011

Figure 4:

Source: Georgia Department of Juvenile Justice

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Public Safety Performance Project

since 2006. Second, these two tools were neither readily available to all probation officers nor used consistently when available. Additionally, judicial officers were not provided with the risk results before making decisions regarding placement and supervision levels.

4 Lack of community-based options

Stakeholders provided the council with information indicating that in many areas of the state, particularly less-populated ones, few community-based options were available for youth involved with the juvenile justice system. Where programs did exist, no performance data were available to determine whether they were effective. This lack of access to proven programs was considered by the council to be a contributing factor to the commitment of status offenders, misdemeanants, and low-risk youth to state-run facilities.

5 Lack of uniform data collection

With 159 counties that operate independent, dependent, or shared juvenile courts, Georgia has a complex patchwork of court management and data collection systems.18 As a result, the council found that the state struggled to collect uniform data necessary to determine the impact of existing policies. Though the state had made progress in data collection and sharing, significant impediments to collecting and tracking outcome measures remained. For example, the council found that the state was not able to identify with precision which cases result from school-related offenses or assess the degree to which school-based incidents and referrals affect the system.

Legislative Package

Based on its review and analysis of Georgia’s juvenile justice system, the council issued a comprehensive set of recommendations in December 2012. The report grouped the

recommendations into three areas: focusing out-of-home facilities on higher-level offenders, reducing recidivism, and improving government performance. It was submitted for consideration to the governor, lieutenant governor, speaker of the House of Representatives, chief justice of the state Supreme Court, and the chief judge of the Georgia Court of Appeals.

Many of the recommendations in the report were incorporated into HB 242,19 sponsored by House Judiciary Committee Chairman Wendell Willard and other representatives. The General Assembly unanimously passed the legislation, with votes of 173-0 in the House and 47-0 in the Senate, and Gov. Deal signed it into law May 2, 2013. The bill becomes effective Jan. 1, 2014.

Additionally, the state is investing in evidence-based programs to reduce recidivism, including $5 million through accompanying fiscal 2014 budget initiatives20 and $1 million through existing federal funding. These efforts are expected to save the state nearly $85 million through 2018 and avert the need to open two additional juvenile residential facilities.

“The [council’s] recommendations

are anchored in the belief that

we need to do a better job determining

which youth offenders really need to enter

an expensive YDC and which ones can be

effectively supervised in the community.”

— Gwinnett County District Attorney Danny Porter

and Oconee County Sheriff Scott Berry,

Gwinnett Daily Post, Feb. 23, 2013

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Public Safety Performance Project

The council recommendations contained in HB 242 and the fiscal 2014 budget advance three priorities:

1 Focus out-of-home facilities on higher-level offenders

These policies reflect a consensus that the most-expensive resources, most notably, out-of-home facilities, should be targeted where they have the greatest impact on public safety, while more-effective, less-costly alternatives to such placements should be made available for youth who are adjudicated for lower-level offenses or are less likely to reoffend.

• Create a two-class system within theDesignated Felony Act. Designated felonyoffenses are divided into two classes, basedon severity—Class A and Class B—thatcontinue to allow restrictive custody whilealso adjusting available sanctions to accountfor both offense severity and risk level. ForClass A and Class B offenses, the mandatoryminimum confinement periods are eliminatedto allow for judicial discretion. In addition,

dispositions for Class A designated felony offenses remain a maximum of 60 months. Class B offenses are reduced to a maximum of 18 months in confinement.

• Prohibit residential commitmentfor all status offenders and certainmisdemeanants. Misdemeanor offenders mayreceive out-of-home placement if their offensehistory includes four prior adjudications, ofwhich at least one was a felony.

• Establish a voluntary fiscal incentivegrant program. The state appropriated $5million in fiscal 2014 to fund the JuvenileReinvestment Grant Program, which supportscommunities in developing evidence-basedprograms for juveniles. An additional $1million was added from existing federal fundsto increase evidence-based programs in localcommunities. Localities will assess theircurrent mix of juvenile offender programmingand submit proposals to expand their capacityto meet their identified needs. Grants willbe awarded through a competitive processand recipients must meet performancegoals, including a 20 percent reduction incommitments to state facilities.

2 Reduce recidivism

Research over the past 25 years has identified programs and practices that can achieve significant reductions in recidivism among adult and juvenile offenders. Ensuring that resources are invested in evidence-based or promising practices will improve public safety returns on taxpayer investments.

• Ensure that resources are focused onprograms proven to reduce recidivism.DJJ is required to include evidence-basedprograms in its continuum of services.

Broad Support Among the Georgia groups that supported the special council’s recommendations contained in HB 242 were:

• Prosecuting Attorneys’ Councilof Georgia

• State Bar of Georgia

• Georgia Association of CriminalDefense Lawyers

• Council of Juvenile Court Judgesof Georgia

• JUSTGeorgia 21

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• Require the use of assessment instrumentsto better inform decision-making.Detention-assessment instruments mustbe used before detaining a juvenile in asecure facility, and risk assessments must

be administered whenever the court is considering confinement as a disposition for a juvenile. Independent of legislation, but based on recommendations of the special council, DJJ is developing a structured decision-

The Special Council and the Juvenile Code Rewrite

In addition to recommendations from the Special Council on Criminal Justice Reform for Georgians, HB 242 contained extensive revisions to the juvenile justice and child welfare codes.

These changes were the result of years of work by JUSTGeorgia, a coalition of community organizations, and the Young Lawyers Division of the State Bar of Georgia. In 2009, the juvenile code rewrite was introduced as legislation based on work of the Young Lawyers Division and went through more than four years of review by state lawmakers and stakeholders. In 2013, many of the provisions of the rewrite were incorporated into HB 242, including code reorganization, updates to the child welfare system, and new processes for children in need of services and addressing competency in juvenile proceedings.

Strong Public Support for ReformsFigure 5: Georgia voters strongly support reducing the size and cost of Georgia’s juvenile corrections system and reinvesting in effective alternatives

Source: Public Attitudes on the Juvenile Justice System in Georgia, February 2013, http://bit.ly/12L5v39. On behalf of Pew’s public

safety performance project, Public Opinion Strategies and The Mellman Group conducted a statewide survey in Georgia of 600

registered voters from Jan. 9 to 13, 2013. The margin of error for a survey of this size is plus/minus 4.0 percent. The margin of error

is higher for subgroups.

Acceptable

87%

Total

63% Strongly

“Send fewer lower-risk juvenile offenders to a

secure facility and use some of the savings to

create a stronger probation system that holds

juvenile offenders accountable for their crimes.”

Total by Party Affiliation

Poll Question:

Republican Independent Democrat

86% 83% 91%

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The Pew Charitable Trusts

Public Safety Performance Project

making instrument for use by probation officers in making recommendations to the court and in determining placement and services for youth.

• Focus resources on higher-risk offendersby allowing lower-risk offenders to beplaced on administrative caseloads.Courts or probation officers are authorized toplace juveniles on administrative caseloads,an alternative type of supervision with a loweroversight level, allowing probation officers toconcentrate their efforts on youth who requiremore intensive supervision.

3 Improve government performance

Assessing and tracking performance outcomes are the first steps in ensuring that the desired results are achieved and give policymakers the information necessary to make informed decisions.

• Require performance-based contracting.Any contracts entered into by DJJ for servicesfor delinquent youth must include incentives,penalties, or both to motivate programproviders to achieve desired results.

• Require uniform data collection andtracking. To ensure that the policies andpractices adopted by the state are achievingthe desired results, local jurisdictions mustcollect and report a wide range of uniformdata, including offender demographics,offense information, case outcomes, andplacement decisions.

• Require agencies requesting transportationof a juvenile to a secure facility to pay forthat transport. To promote accountabilityfor decision-making, any agency requestingthe transportation of a juvenile to a detentioncenter will be responsible for all costsassociated with the transport.

“Doing the right thing for our

children is not a partisan issue.”

— Rep. Wendell Willard,

chairman of the House Judiciary Committee,

House floor presentation of HB 242, Feb. 28, 2013

“We have become smarter in the way we address the enormous cost and

the horrible return on investment that our taxpayers are receiving.”

— Judge Michael Boggs, Georgia Court of Appeals,

cochairman of the Special Council on Criminal Justice Reform for Georgians22

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Oversight Council for Adult and Juvenile ReformsIn the 2013 legislative session, the Georgia General Assembly also passed HB 349,23 which included recommendations of the special council related to adult sentencing and corrections. The legislation also created the Georgia Council on Criminal Justice Reform to provide ongoing oversight of the implementation and impact of adult and juvenile corrections reforms. The new council is responsible for establishing performance measures and proposing additional reforms to further reduce recidivism and state expenditures.

Honorable Michael P. Boggs (cochair) Judge, Court of Appeals of Georgia

David Werner (cochair) Deputy Chief of Staff, Governor’s Office

Representative Stacey Abrams District 84, Atlanta

Scott Berry Sheriff, Oconee County

Justo Cabral Solicitor-General, Lowndes County

Senator John Crosby District 13, Tifton

Honorable Jason Deal Superior Court Judge, Northeastern Judicial Circuit

Linda Evans Member, Judicial Qualifications Commission

Honorable Ural Glanville Superior Court Judge, Atlanta Judicial Circuit

Honorable Carol Hunstein Chief Justice, Supreme Court of Georgia

Honorable Todd Markle Superior Court Judge, Atlanta Judicial Circuit

David McDade District Attorney, Douglas County

Representative Mary Margaret Oliver District 82, Decatur

Daniel J. Porter District Attorney, Gwinnett County

Representative Jay Powell District 171, Camilla

Senator Ronald Ramsey, Sr. District 43, Decatur

Ken Shigley Past President, State Bar of Georgia

Representative Willie Talton District 145, Warner Robins

Honorable Steven Teske Juvenile Court Judge, Clayton County

Representative Wendell Willard District 49, Sandy Springs

The Special Council on Criminal Justice Reform for Georgians

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PUBLIC SAFETY PERFORMANCE PROJECT

Endnotes1 DJJ operates two types of secure residential facilities: youth development campuses, or YDCs, and regional youth detention centers, or RYDCs. There are seven secure YDCs for juveniles adjudicated delinquent and committed to the state. There are 22 secure RYDCs, which are intended as short-term placements for youth who have been charged with delinquent offenses. Some juveniles, however, are held at RYDCs after being found delinquent while they await placement at a YDC or other facility. In addition, DJJ contracts with private providers to place juveniles in nonsecure residential facilities, which are community residential programs that include group homes, emergency shelters, wilderness/outdoor therapeutic programs, and other placements that provide 24-hour care in a residential setting.

2 HB 106: http://opb.georgia.gov/sites/opb.georgia.gov/files/related_files/site_page/HB%20106%20-%20FY%202014%20Appropriations%20Bill.pdf.

3 HB 1176 and 2012 legislative reforms: http://www.pewstates.org/uploadedFiles/PCS_Assets/2012/Pew_Georgia_Safety_Reform.pdf.

4 According to the Office of Juvenile Justice and Delinquency Prevention, the population of committed juveniles declined 25 percent nationally between 2006 and 2010. http://www.ojjdp.gov/ojstatbb/ezacjrp.

5 Unless otherwise noted, all analyses in this report were conducted by The Pew Charitable Trusts, based on data provided by DJJ, and analyses were reviewed by DJJ and the Council of Juvenile Court Judges. The total out-of-home population includes all adjudicated youth who are in an out-of-home placement, with the exception of superior court youth.

6 Georgia HB 742, fiscal 2013 Appropriations Bill. Appropriations for DJJ have varied in the past several years, ranging from $265 million in fiscal 2005 to $343 million in fiscal 2009. In fiscal 2012 the appropriation was reduced to $286 million. http://www.djj.state.ga.us/ResourceLibrary/resStatistics.shtml#BUDGET.

7 See Endnote 1.

8 DJJ.

9 DJJ. For all youth who were released in 2007, the recidivism rate was 52.5 percent within three years. Recidivism is defined as an adjudication of delinquency in juvenile court or a finding of guilt in adult court for an offense committed within three years of release from an out-of-home facility or placement on community supervision.

10 DJJ.

11 A status offense is one that would not be a crime if it were committed by an adult. It is only an offense because of the perpetrator’s status as a child. Such offenses include truancy, running away from home, incorrigibility, and unruly behavior.

12 DJJ. Risk percentages are for offenders in 2011 based on the state’s Comprehensive Risk and Needs Assessment tool. These

percentages may change in future years for a variety of reasons, including revalidating and “renorming” the assessment tool.

13 The adjudicated youth who are in nonsecure residential placement include those placed there as a result of their disposition, as well as youth placed there for reasons not related to their commitment to DJJ, such as a referral from the Georgia Division of Family and Children Services. Youth who are in nonsecure residential placement for reasons not related to their commitment to DJJ would not be affected by the recommendations in this report and were therefore removed before determining impacts.

14 The original designated felony offenses included murder, rape, voluntary manslaughter, aggravated sodomy, armed robbery, attempted murder, kidnapping, attempted kidnapping, arson in the first degree, arson in the second degree, and aggravated assault.

15 O.C.G.A §15-11-63.

16 DJJ. Risk percentages are for offenders in 2011 based on the state’s Comprehensive Risk and Needs Assessment tool. These percentages may change in future years for a variety of reasons, including revalidating and “renorming” the assessment tool.

17 Validation of an assessment tool is any combination of statistical processes used to determine how accurate the representation created by the tool is compared to that which it intends to measure. Norming of an assessment tool is a comparison to a standard, or recognition of patterns that result from the use of the tools, so as to initially calculate or to later reconsider the scoring and the usage of such an instrument.

18 There are 134 dependent courts in which DJJ handles intake services and case management and oversees probation services. Eight courts share operations between DJJ and the county. There are 17 independent courts in which court employees handle the intake, case management, and probation services. Independent courts also manage their own information systems, many of which are separate from the system used by the dependent counties.

19 HB 242, http://www.legis.ga.gov/Legislation/20132014/135887.pdf.

20 See Endnote 2.

21 JUSTGeorgia is a statewide juvenile justice coalition whose lead partners are Georgia Appleseed Center for Law and Justice, the Barton Child Law and Policy Center of Emory University School of Law, and Voices for Georgia’s Children.

22 Mike Klein, “Juvenile Justice Bill Would Revise Designated Felony Act.” Mike Klein Online: Public Policy Journalism, Feb. 11, 2013. Retrieved April 22, 2013, from http://mikekleinonline.com/2013/02/11/juvenile-justice-bill-would-revise-designated-felony-act

23 HB 349, http://www.legis.ga.gov/Legislation/en-US/display/20132014/HB/349.

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