SB200 Rebuttal

I am writing in response to the story “WDRB Investigation: New KY law contributes to rise in Louisville juvenile crime,” done by Mr. Gil Corsey. I was the sponsor of Senate Bill 200, a major 2014 juvenile justice reform law aimed at holding youth accountable, while getting youth and their families the services and programming they need to get back on track. I serve as chair of the Juvenile Justice Oversight Council monitoring its implementation. Since passage, we’ve meticulously reviewed data from across the juvenile justice system, which show better outcomes for youth and families statewide.

I took issue with a number of the points Mr. Corsey made in this story. In Jefferson County, 42% of youth who were put on diversion in CY 2016 had committed a status offense. Status offenses are behaviors that many kids need to be steered away from at one point in their youth, like truancy or tobacco possession, but they are not considered crimes for adults. The increase in diversion cases in Jefferson County is driven primarily by these status offense cases, not crimes. 

This is exactly what we want to see. Research is clear that for low-level youth, such as those committing status offenses, pulling them deeper into the system can actually produce the opposite of the desired outcome. The youth’s behavior often gets worse, not better. Instead of fixing the problem, the government ends up pulling the youth away from their family and isolating them more.

I also want to point out a problem with how Mr. Corsey categorized “serious violent offenses” in his recidivism definition. In that definition he included four different types of assault in the 4th degree, a misdemeanor crime that results in either no visible injury or only minor injury. These crimes are not included in the FBI’s Uniform Crime Reporting category of violent offenses, and as a former prosecutor I personally do not believe they should be considered “serious, violent offenses” in the same category as crimes like robbery, rape and murder.

This recidivism definition is important to clarify because more than one-third of diverted youth who Mr. Corsey categorized as serious, violent re-offenders were charged with some form of assault in the 4th degree as their subsequent offense. If you exclude those youth from his recidivism definition, less than 4% of youth who were diverted in CY 2016 have subsequently committed a serious, violent offense. This is an extremely low recidivism rate.

I believe these data are important to clarify because examining data related to Senate Bill 200 implementation is a core component of the Juvenile Justice Oversight Council’s responsibility. We have defined performance measures to routinely track the implementation of the legislation, and we regularly receive data reports from the Administrative Office of the Courts, the Department of Juvenile Justice, and other relevant agencies charged with policy implementation. 

In examining statewide data, we have seen many positive results from Senate Bill 200 implementation. Statewide, public offense complaints (offenses that would be considered crimes if committed by an adult) have continued to decline in the years following the reforms. While we have seen an increase in diversions, we have also seen that more than 90% of youth successfully complete diversion and are kept out of the court system, and the vast majority of youth who successfully complete diversion do not reoffend. When youth are successful in diversion, it frees up time for the juvenile court to handle more serious cases and for judges to use their resources on the cases that truly pose a risk to public safety.

Finally, I want to make a critical point about Senate Bill 200: this legislation did not change any statute related to how the most serious crimes can be handled in juvenile court, or impact any juveniles who commit such serious offenses that they end up being sent to criminal court. Senate Bill 200 was designed to curb unnecessary, ineffective and costly detention for the lowest level offenders, and provide more effective community-based programs to address problem behavior. This allows the state to prioritize  scarce resources in court and in the Department of Juvenile Justice to better address the needs of youth who commit serious offenses and have significant prior history. This can improve public safety and improve outcomes for youth, which should be the ultimate purpose of Kentucky’s juvenile justice system.

DMC

UPDATE:  On November 28th, staff for the Department of Juvenile Justice and the Administrative Office of the Courts informed me that the data contained in this post is not statewide data, but rather specifically from Jefferson County.  I'll update this post with statewide data once the agencies have provided it.

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Over the last two years the Juvenile Justice Oversight Council (JJOC), created by Senate Bill (SB) 200's juvenile justice reforms, has overseen the implementation of that landmark legislation.  In the time since its enactment we have already seen positive outcomes with fewer kids ending up in the court system and being placed, unwisely and expensively, out of home.  This is still the early days of the reforms, but the preliminary indications are very good, and show the bill is improving outcomes for kids without diminishing public safety.

While we continue to discuss and dissect the rollout of this enormous reform bill, our work on the council also includes exploring policy areas that SB 200 didn't directly address.  At the top of that to-do list is an area of policy work that demands our attention and awareness: Disproportionate Minority Contact, or "DMC."  In Kentucky's juvenile justice system, a system Lady Justice demonstrates should be blind, is evidence that minority children are treated differently.

First, it is important to put the data in context.  Remember as you read through this column that as of 2014, Kentucky's youth population (10 to 17 year olds) roughly breaks down to 83 percent white, 10 percent black, 5 percent Hispanic and 2 percent Asian.

In 2015, statewide status offense (a status offense is not a crime but is an offense only because the person committing it is a juvenile, including truancy, possession of tobacco, running away) detentions already demonstrate a disproportionate reality, with 13 percent of those cases belonging to black youth, compared to 77 percent white youth.

With over 1,700 school complaints during the 2015-2016 school year (statewide) we see a vivid image of DMC.  Nearly 1,200 of them were complaints about black youth.  Here are a few other takeaways from this statewide data:

Black youth had nearly the same number of truancy complaints at 322 as white youth at 314 (remember the 83 percent vs. 10 percent).  Still more jarring is the difference in the disorderly conduct complaint category, wherein white youth make up 35 school complaints compared to the 226 lodged against black youth.  On the charge of Assault in the 3rd Degree (the attempted or actual assault on a teacher, law enforcement officer, first responder and other select professions; a class D felony) black youth had 92 school complaints compared to 17 for white youth.  To do the math for you, the percentage comparisons between white and black kids are grossly disproportionate relative to their respective share of the youth population: Truancy – 45 percent black, 44 percent white; Disorderly Conduct – 85 percent black, 13% white; Assault – 80 percent black, 15 percent white.

2015-2016 School Year, Complaints By Race

• Habitual Truancy
• Disorderly Conduct
• Abuse of Teacher
• Assault 3rd

• Habitual Truancy
• Disorderly Conduct
• Abuse of Teacher
• Assault 3rd

Complaint data provided by the Administrative Office of the Courts

I wish the data stopped there, but it does not.  Between 2014 and 2016, the likelihood that a juvenile would be deemed a "youthful offender," which means they're prosecuted in Circuit Court for felonies as an adult, has declined for white youth but has increased for black youth.  In 2014, 41 percent of youthful offenders were white, compared to 50% percent black (itself a disproportionate statistic), but the data from 2016 shows those two groups at 19 percent and 71 percent, respectively.

2014-2016 Youthful Offenders By Race (%)

• White
• Black

• White
• Black

Data provided by DJJ Juvenile Justice Resource Information (JORI) System

This is simply wrong.

Over the last few months the JJOC has heard hours of testimony about DMC in Kentucky and steps already underway to address it.  The September meeting of the JJOC was entirely about the subject.  Prior to the meeting I made a formal request to each member of the council to come prepared with policy recommendations, and they delivered.  I have already begun work on legislation I intend to introduce in the 2017 session to end this miscarriage of justice for minority youth and I intend to include many of these recommendations.  In the 2016 session I sponsored SB 270 that would have required the most prominent state agencies involved in the juvenile justice system to collect data on race, identify DMC in their own systems, and develop and implement plans to eliminate it to the extent they can.  That bill failed to pass, but I am not giving up.  The numbers are painfully clear that we must take steps to eliminate implicit bias in our system wherever it exists, to improve the community resources for troubled youth regardless of their skin color, and to make certain Lady Justice remains blind.