December 1996 Office of Juvenile Justice and Delinquency Prevention Formula Grants Regulation Revision Summary

Since early 1996, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) has taken a comprehensive look at the regulation, 28 CFR Part 31, that guides the States’ implementation of the Juvenile Justice and Delinquency Prevention (JJDP) Act of 1974, as amended. The Formula Grants program regulation has been modified periodically, usually following Congressional reauthorizations. The focus for the 1996 regulation review was to consider those changes which would be responsive to the expressed needs of States and localities while ensuring the safety of children in the justice system.

In April, OJJDP held two listening conferences, one in Idaho and another in New Jersey. At these meetings, the Office sought input from a cross-section of those affected by the JJDP Act: judges, public defenders, prosecutors, sheriffs, other juvenile justice practitioners, and private citizens. At the same time, the Office sought written suggestions from State Agencies and State Advisory Groups charged with implementation of the Act. Recommendations were also received through meetings with public interest groups and youth advocacy organizations.

Based on the information received, OJJDP proposed a revised regulation for public comment in the Federal Register on July 3, 1996. Following the comment period, views from the field were considered and a Final Revised Regulation was published in the Federal Register on December 10, 1996. The final regulation, synopsized below, provides enhanced flexibility to State and local governments and reduces red tape related to program administration.

Deinstitutionalization of Status Offenders

Section 223(a)(12)(A) of the JJDP Act provides that status offenders and nonoffenders not be detained or confined in secure detention or correctional facilities. OJJDP policy has, since 1975, provided an exception to allow a status or nonoffender to be detained for up to 24 hours, exclusive of weekends and legal holidays, in a juvenile detention facility. The revised regulation expressly provides that it is permissible to hold an accused status offender or nonoffender in a secure juvenile detention facility for up to 24 hours, exclusive of weekends and legal holidays, prior to an initial court appearance, and for an additional 24 hours, exclusive of weekends and legal holidays, immediately following an initial court appearance.

The JJDP Act provides that status offenders found to have violated a Valid Court Order may be securely detained in a juvenile detention or correctional facility under an exception to Section 223(a)(12)(A). The definition of a Valid Court Order, under Section 103(16) of the JJDP Act, provides that before a disposition of placement in a secure detention facility or a secure correctional facility is entered, an appropriate public agency (other than a court or law enforcement agency) must review the case and submit a written report to the court. The implementing regulation provided an example of a multi- disciplinary review team as an appropriate public agency.

Separation

Section 223(a)(13) provides that accused and adjudicated delinquent, status offender, and nonoffender juveniles shall not have contact with incarcerated adults. In order to meet this separation requirement, the prior regulation provided that while juveniles are in secure custody in an adult facility, sight and sound contact with adults is prohibited. When OJJDP began the process of reexamining the regulation, it became clear that some confusion existed with the definition of “sight and sound” contact. Therefore, sight contact is defined as clear visual contact between incarcerated adults who are in close proximity to juveniles alleged to be or found to be delinquent, status offenders, and nonoffenders in a secure institution. Sound contact is defined in the regulation as direct oral communication between incarcerated adults and juveniles in secure institutions. While separation must be provided through architectural or procedural means, the revised regulation provides that sight or sound contact that is both brief and inadvertent or accidental must be reported as a violation only if it occurs in secure areas of the facility that are dedicated to use by juvenile offenders, including any residential area. A residential area is an area used to confine individuals overnight, and may include sleeping, shower and toilet, and day room areas.

State laws are increasingly providing for the mandatory or permissible transfer of adjudicated delinquents to adult facilities once the delinquent has attained the age of full criminal responsibility established by State law. The revised regulation provides that the separation requirement of the Act no longer applies if the transfer or placement of an adjudicated delinquent who has reached the age of full criminal responsibility is required or authorized by State law.

The revised regulation modifies the prior compliance standard penalizing States that have not enacted laws, rules and regulations, or policies prohibiting the incarceration of all juvenile offenders under circumstances that would be in violation of Section 223(a)(13). These States were not eligible for a finding of compliance if any instances of noncompliance were sanctioned by State law, rule, regulation, or policy. The revised regulation establishes a single standard applicable to all States regardless of whether a law, rule, regulation, or policy exists, if compliance can be established under circumstances in which:

the instances of noncompliance do not indicate a pattern or practice; and either
adequate enforcement mechanisms exist; or
an acceptance plan has been developed to eliminate the noncompliant incidents.
Jail and Lockup Removal

Section 223(a)(14) provides that juveniles cannot be detained in any adult jail or lockup. Although not expressly provided in the prior regulation, OJJDP policy provided an exception to the jail and lockup removal requirement: an alleged delinquent could be detained, while separate from adults, for up to six hours for the purposes of identification, processing, and to arrange for release to parents or transfer to a juvenile facility. The regulation codifies this exception and extends it to include a six hour time period both immediately before and after a court appearance, provided that the juvenile has no sight or sound contact with incarcerated adults during the time the juvenile is in a secure custody status in the adult jail or lockup.

Sections 223(a)(14) (B) and (C) provide circumstances that extend the statutory 24-hour non Metropolitan Statistical Area (MSA) exception to the jail removal requirement based on distance/ground transportation and weather. The revised regulation removes previous regulatory language requiring States to document and describe, in their annual monitoring report, each individual use of these exceptions.

Collocated Juvenile and Adult Facilities

The regulation makes three revisions to the criteria to establish the existence of a separate juvenile detention facility that is collocated with an adult jail or lockup:

First, the regulation is modified to permit program space in collocated adult and juvenile facilities to be shared through time-phased use. While OJJDP’s objective is to encourage the development and use of separately located juvenile facilities whenever possible, it is recognized that expecting every jurisdiction to create wholly separate juvenile facilities, including the duplication of costly infrastructure elements like gymnasiums, cafeterias, and classrooms, may result in those jurisdictions being unable to provide any secure juvenile detention capacity. The revised regulation makes it possible for more jurisdictions to provide collocated juvenile and adult facilities by removing the requirement that collocated facilities not share program space between juvenile and adult populations. Utilization of time-phasing will allow both juveniles and adults access to educational, vocational, and recreational areas of collocated facilities. It is important to note that time-phased use is explicitly limited to nonresidential areas of collocated facilities and requires the use of written procedures to ensure that no contact occurs between detained juveniles and incarcerated adults.

Second, the requirement that a needs-based analysis precede a jurisdiction’s request for State approval of a juvenile facility that is collocated with an adult jail or lockup has been removed. Technical assistance will remain available to States and localities that wish to conduct such an analysis.

Finally, OJJDP’s concurrence with a State’s decision to approve a collocated facility will no longer be required. Annual on-site reviews by the State, coupled with OJJDP’s periodic review of the adequacy of State monitoring systems, will ensure that each collocated juvenile detention facility meets the criteria to establish a collocated juvenile detention facility.

Disproportionate Minority Confinement (DMC)

Section 223(a)(23) of the JJDP Act provides that States are to determine if minority juveniles are disproportionately confined in secure detention and correctional facilities and, if so, to address any features of its system that may account for the disproportionate confinement of minority juveniles. The regulation clearly states the position of OJJDP that the DMC core requirement neither requires nor establishes numerical standards or quotas in order for a State to achieve or maintain compliance.

Questions regarding the Formula Grants Regulation may be directed to OJJDP’s State Relations and Assistance Division, (202) 307-5924.