Tabitha was on the run from her foster family when she celebrated her 17th birthday. She had been on the streets for four weeks when she finally turned herself in to Child Protective Services in Aberdeen, Washington. “I had nowhere else to go,” she told The Appeal.
Instead of being immediately placed in a new foster home, Tabitha was put in the back of a cop car. Because she was in violation of a court order, the consequence for running away was juvenile detention. “Juvie was kind of messed up,” she said. “You’re stuck in a cell all day.
What she remembers most are the toilets. “The toilets are all metal and it gets really cold,” she says.
Detention was not a deterrent to running away, she says, but it did teach her how the system works. She was afraid the court would extend her stint in detention because she smoked pot while she was on the run. “[I learned how to] play nice with the judges,” said Tabitha, whose last name was withheld for privacy. “Juvie just gave me even more reason to not get caught.”
Tabitha’s story is common. In Washington, young people, many of whom are also in the foster system, are often detained on status offenses—noncriminal actions like truancy and running away that would not be illegal for anyone over 18. Washington is an outlier among the states when it comes to locking up children for these violations.
But that could soon change. In January, state Senator Jeannie Darneille, who has long pushed for reform on this issue, introduced Senate Bill 5290, which would eliminate the use of juvenile detention for contempt of truancy orders, dependency placement orders, or child in need of services orders by July 1. Representative Noel Frame introduced companion legislation, House Bill 1434, in the Washington House. And a related measure, House Bill 1106, sponsored by Representative Tina Orwall, would eliminate the use of detention for violation of truancy-related court orders.
The fact that a child can go into detention for something that isn’t a crime is state-sanctioned trauma.
Senator Jeannie Darneille Washington
Although such measures have failed in years past, Democrats now control the state government and there’s growing momentum for reform. Darneille’s bill has already passed the Senate, and its companion bill is in committee in the House. Both bills have already made it further than they have in previous years.
“We’re hopeful that a year’s worth of work and dialogue has helped move the conversation forward and we expect that to continue during the remainder of session,” Darneille said. “The fact that a child can go into detention for something that isn’t a crime is state-sanctioned trauma.”
The Becca Bill
When the federal Juvenile Justice and Delinquency Prevention Act passed in 1974, one of its core requirements was the “deinstitutionalization of status offenders,” prohibiting states from receiving federal juvenile justice funding for detaining young people for noncriminal offenses. But in the early 1980s, an amendment to the JJDPA granted an exception to this core requirement, allowing judges to sentence children to secure confinement for a status offense if it violates a valid court order. The unintended consequence of that exception has been the widespread use of detention for status offenses in some jurisdictions.
Washington State is one of them. Data from the federal Office of Juvenile Justice and Delinquency Prevention showed that Washington used valid court order exceptions more than 2,700 times during a 12-month period around 2011, which was twice as many as Kentucky, the state with the next-highest rate of detention. In 2017, around 12 percent of all admissions to juvenile detention in Washington were for status offenses, according to the Washington State Center for Court Research.
Washington’s high detention rate stems from a 1995 law known as the Becca Bill. Named after Rebecca Hedman, a 13-year-old runaway who was found murdered, the law was intended to give judges discretion to send children to crisis residential centers (CRCs) that would provide mental health and substance use support. But budget cuts in the late 2000s significantly reduced the number of CRCs in Washington. According to testimony from a juvenile court administrator during a hearing on HB 1434, only two counties in Washington have secure CRCs, which are locked facilities, and eight have nonsecure CRCs, which allow children more movement within the building. When there aren’t enough beds in the treatment centers, children get sent to juvenile detention.
There is wide variation in how county courts use the valid court order exception. Clark County has stopped detaining young people for status offenses almost entirely. Other jurisdictions still do so frequently.
Bringing them into detention for a day or two … doesn’t change anything. They’re going right back to whatever their situation was.
Hillary Behrman Washington Defender Association
Naomi Smoot, executive director of the Coalition for Juvenile Justice, told The Appeal that such variation isn’t uncommon. “There’s often one jurisdiction, or even just one judge, who is continuing to hold on to the valid court order exception,” she said, “even if the rest of the state has realized that it’s not best practice.”
A growing debate
In previous years, the proposed legislation faced strong opposition from juvenile court administrators and superior court judges who argued that removing the valid court order exception would prevent them from keeping the most at-risk children safe.
Lisa West, administrator of Skagit County’s superior and juvenile courts, and president of the Washington Association of Juvenile Court Administrators, said her organization is opposed to the elimination of the valid court order exception until there are alternatives for youth who will not voluntarily participate in services or interventions. “Until there are other options for our most vulnerable youth, we are not willing to remove the only safety net in place,” she wrote in an email.
King County Superior Court Judge Sean O’Donnell made a similar point during a recent public hearing on HB 1434. “If we had the option of a secure detention that was outside of the juvenile detention facility … judges would use that,” he said. “[But] judges have to have an ability to enforce their court orders.”
When asked if the goal of detention was to keep at-risk youth safe or to punish them for disobeying a court order, O’Donnell said the purpose of detention is to get the child to comply with the order. “It is not to punish,” he said.
Despite such attitudes toward detention, momentum is starting to shift. In February 2019, the National Council of Juvenile and Family Court Judges adopted a resolution in favor of eliminating the exception at the state and federal levels. “I think this year we might have a shot at changing 30 years of practice,” said Hillary Behrman, director of legal services at the Washington Defender Association. In her experience, the use of detention for status offenses is, at best, a temporary fix. At worst, it further traumatizes a child who has most likely already been traumatized.
“Bringing them into detention for a day or two … doesn’t change anything,” she said. “They’re going right back to whatever their situation was.”
Other advocates say that using detention makes it less likely that kids will trust school officials, social workers, judges, and lawyers who are trying to help them. Not only does it fail to address underlying issues a young person is facing, they say, it increases the likelihood that children will have further involvement with the criminal legal system.
The push for juvenile justice reform in Washington State occurs against the backdrop of the reauthorization of the federal Juvenile Justice and Delinquency Prevention Act, which passed Congress in December 2018 with bipartisan support. Although advocates hoped that the reauthorization would include a phase-out of the valid court order exception, it remained intact.
Smoot of the Coalition for Juvenile Justice said the reauthorization limits secure detention to seven days and judges need to provide a written statement about why incarceration is in the interest of justice.
Smoot pointed out that approximately 40 states have eliminated detention for status offenses or use it sparingly. “Federal law has lagged behind the states,” she said. “Each legislative session, we see more and more states implement their own laws that will phase out the use of the court order exception. Utah did it last year. We’ve also seen other states across the country, like Kentucky, dramatically reduce theirs.”
Although states have decreased their reliance on the valid court order exception, the young people who are diverted are disproportionately white, Smoot said. “It’s pushed the racial and ethnic disparities even further out of whack.”
Girls are also overrepresented among youth in detention for status offenses. In Washington, young women make up approximately 30 percent of all youth admitted to detention, but 47 percent of all children detained on status offenses.
People need to actually engage the kid and listen to what they have to say.
Tabitha formerly detained teen
Francine Sherman, a clinical professor at Boston College Law School, is an expert on young women in the juvenile justice system. She said girls are more likely to run away than boys, and hence more likely to be detained on status offenses.
“Whether it’s fighting with their mother, staying out too late … and behaving in ways that are inconsistent with known social expectations,” she said, “we are a lot quicker to come down on girls for those kinds of things than we are boys.”
Offering an alternative
Regardless of the outcome of the proposed legislation, Washington has made strides toward reducing the number of children incarcerated for status offenses, particularly for truancy. In 2016, the state legislature mandated that all school districts create “community truancy boards” starting in 2017-18. The boards are made up of volunteers from the community who work with families to understand why their children are skipping school and coming up with a plan to encourage attendance.
“The idea of community truancy boards is to have that kind of next-tier conversation with a family about what’s driving the absences,” said Krissy Johnson, attendance program supervisor at the state’s Office of Superintendent of Public Instruction.
Although a formal evaluation of the impact of the truancy boards will not be completed until data from the current school year is available, they have most likely contributed to a statewide decline in the number of children detained for truancy. In Washington, there was a 16 percent decrease in admissions for status offenses between 2016 and 2017, with a 30 percent decline for truancy-related admissions, according to the Washington State Center for Court Research. Early estimates comparing the first half of 2017 to the first half of 2018 indicate an additional 16 percent reduction in the number of detention admissions for status offenses.
Tabitha might have benefited from community-based solutions like the truancy boards. Now, at 19, she is living in a shelter for young adults under 25 who have aged out of the foster care system. She’s working on finishing high school online, and has only two credits left before she graduates. She eventually wants to go to college, and is interested in art and photography.
Tabitha says there’s always a reason children run away or are truant. “If a kid runs away or skips school, obviously something bad’s happening in that house,” she says. “People need to actually engage the kid and listen to what they have to say instead of just throwing them in jail or juvie.”
Charlotte West is a 2018 John Jay/Tow Juvenile Justice Reporting Fellow.