1. A Fiscal Perspective: The National Trend Towards Free Market Principles in Juvenile Justice Marc Levin and Jeanette Moll Center for Effective Justice, Texas Public Policy Foundation Presentation to the Nebraska Juvenile Justice Summit December 6, 2012

2. Introduction to the Foundation The Texas Public Policy Foundation is a state-based think tank covering a broad range of issues, from health care to education, with a mission to promote individual responsibility, free enterprise, limited government, and private property rights. In 2005, the Center for Effective Justice was founded within the Foundation, focusing on criminal justice reforms within Texas. Our work in Texas eventually spread to juvenile justice, and successful policy implementation in Texas led to the expansion of our work to other states.

3. Ten Guiding Principles

4. First: Some Confinement is Necessary Juvenile justice systems simply must provide at least some style of secure confinement for the small minority of serious or violent juvenile offenders. Public safety concerns demand this level of security to prevent further crimes while the youth undergoes rehabilitation. However, those facilities must be sufficiently safe to allow for effective rehabilitation for juvenile offenders. Generally, smaller facilities and those closer to home are better. o The Missouri Model; $120 per day and less than 9 percent recidivism in adult or juvenile system.

5. Second: Community- Based Programming Countless studies have highlighted the general effectiveness of community-based programming over institutional state “training schools,” which usually are located hundreds of miles away from a youth’s home. This effectiveness generally springs out of positive connections made and maintained in the community; however, the lower costs of community-based placements can dramatically effect state budgets.

6. Third: Because of the effectiveness of community-based programming… Confinement should not be the default response for most youth. Careful distinctions are needed to differentiate between the majority of youth, who are low-risk and would likely become worse off due to confinement, from the small minority of high-risk youth, who would benefit from secure confinement. In Texas, a broad barrier was set for state level secure confinement (misdemeanant youth). Other states limit confinement on a case-by-case basis.

7. Fourth: Risk and Needs Assessments are Necessary A proven and reliable risk and needs assessment can, on its own, greatly increase successful outcomes in juvenile justice systems. Static and dynamic factors; risks and needs. Provides invaluable information on treatment plans and placement options. Most useful when available and used by each decision- maker at each juncture of the justice system.

8. Fifth: School Discipline Heavily Impacts Juvenile Justice The advent of zero-tolerance policies began a trend away from traditional in-school discipline, towards greater reliance on juvenile justice interventions into common school misbehavior. This use of the juvenile justice system to discipline students can come at a high cost and overburden the courts, diverting valuable justice system resources away from genuine public safety concerns. Research shows that a balanced approach to school behavior issues can reduce overreliance on the justice system while creating better outcomes for students.

9. Sixth: Juvenile Probation is Often the Best Alternative Juvenile justice systems are under pressure to avoid secure confinement for most juvenile offenders. Probation can provide a wide-range of supervisory alternatives to confinement. Costs for probation are mere fractions of costs of confinement, and probation can be easily tailored to each juvenile offenders needs and risks. o Average cost for basic probation per day per youth in Texas is $17.25, which equates to $6,296 per year. Few geographic limitations (in terms of service providers).

10. Seventh: Focus on the Evidence Evidence-based programming is the “buzz-word” in juvenile justice systems. Simply, an evidence-based program is one that has been proven to reduce the risk of criminal behavior. Funding is increasingly tied to the exclusive use of such programming. Multiple databases track and compile research and evidence. While it is important to use proven programs, it is also important to avoid ignoring creative solutions and innovation.

11. Eighth: Juveniles in Adult Facilities Are at a Unique Disadvantage Even serious juvenile offenders face risks and disadvantages in adult lockups. The risks include an increased likelihood of physical and sexual assault as well as suicide risks. Disadvantages include a lack of education and age-appropriate programming.

12. Ninth: The Performance Incentive Funding Revolution Texas implemented performance incentive funding in 2009. Under the Commitment Reduction Program, counties are provided with funding to retain jurisdiction over youths who would otherwise be committed to state facilities. Other states—Ohio and Illinois—have implemented their own version of performance incentive funding. While each system is unique, the common thread is financial assistance following a reduction in state commitments. This creates a fiscal incentive toward treatment closer to home.

13. Tenth: Juvenile Justice Reform is Spreading Unlikely states, actors, and policymakers are taking up juvenile justice reforms for fiscal and moral reasons. A common refrain: “If Texas can do it...” Louisiana, Mississippi, Virginia, Georgia, Florida, Texas, California, Colorado, Nebraska: almost every state is looking for better outcomes and increased cost-effectiveness for juveniles.

14. The Texas Model

15. Texas Reform Origins In 2006, a crisis struck juvenile justice in Texas. Criminal prosecutions were not enough: o Judges began avoiding sending youth to state facilities. o The Legislature swiftly acted to bar any further misdemeanants in state secure facilities. o Legislation was passed to increase security, install video cameras, and provide for an Ombudsman.

16. Damage Done Legislators had lost faith in the state facilities and began seeking out better ways to handle juvenile justice. State facility populations continued to decline, and thus state savings due to lower rates of incarceration could be passed on to the counties. The Commitment Reduction Program was enacted in 2009. o Community-based. o Less than $140 per day. o Evidence-based. o Claw-back provision.

17. Justice Reinvestment Results An initial $45 million funding of the Program gave counties grant money to place youths in community- based settings. Reduced populations in state facilities permitted the closure of three facilities and a cost savings of $100 million. Initial results show that out of 4,000 youths first placed through the Program, only 58—or 1.4 percent— eventually required placement in a state facility. Delinquency rates continue to fall. Statewide referrals are down 18 percent, outpacing the national drop of 13 percent.

18. The Texas Model for Other States Texas’ success was largely predicated on unlikely policymakers aggressively turning their attention toward this issue and making the bold choices once thought unlikely from a state like Texas. As the state reaped the benefits—both in lower costs and in lower delinquency rates—other states sought to learn from our success. The Foundation began to export the Texas Model to other states, by reaching out to conservatives to share our research and lessons learned. The Texas Model is not limited to performance incentive funding—but moreover, the recognition that confinement is not always the answer.

19. Right-Sizing Nebraska’s Juvenile Justice System

20. An Overview Due to the size and type of state Nebraska is, the juvenile justice system here is substantially more compressed than most other states. However, that compression means that each dollar in the system is even more precious, and that in some sense it may be easier to create an effective and efficient system. State law already permits a county-state partnership for community-based juvenile justice. Expansion of that partnership would dramatically decrease costs and increase effectiveness. That partnership would play a role in each of the five pressure points on the Nebraska system.

21. County Juvenile Services Aid Program Created in 2001; statutorily limited to $4 million each year. In 2010 total funding was $1.4 million. Community-based programming available under the Aid Program is broad, but cannot include secure facilities. In 2010, the $1.4 million was leveraged to provide services for 12,000 youth, including 4,000 diversions, restitution, community service, and mentor-mentee matches.

22. Expanding the Aid Program The entire cost of a diversion via the Aid Program is equal to two days in a YRTC. o $257 per day, vs. $65 for group homes or $15 for electronic monitoring. This Aid Program represents juvenile justice reinvestment like other states have had great success with, and could present significant cost savings for the juvenile justice system. How to expand? Specifically tie grants to a county’s reduction in the number of youths sent to a state facility. o Low-level commitments. o Commitment for the purpose of programming? o Chemical dependency: 77 percent in Nebraska.

23. First Pressure Point: Truancy The current response to truancy over-relies on the juvenile justice system. Truancy is a problem that requires a serious response: it is linked to losses in educational achievement, decreased employment gains, and higher risks for drug use and other delinquency issues. Omaha World-Herald found a correlation between absenteeism with increased probability of dropping out. o More than 20 days; 1-in-3 chance of graduating.

24. Truancy, continued In the 2010-2011 school year, over 9,000 students were sent to the juvenile justice system based on a truancy issue. Justice system intervention is not always effective: o Replacing the parental role; o No evidence it works and not targeted to the problem; o Expensive. Schools should have central role. o In Douglas County, the GOALS system attempts to proactively prevent students from ever reaching the 20 day threshold. o But if they do, the Truancy Diversion Program is an interagency effort to weed out youth who do not need justice system intervention. Diversion Plans. Only 5 percent required filing of a petition.

25. An Efficient Response to Truancy Cases The County Aid program could provide the essential truancy prevention and response programming in schools and in the diversion program. In addition, the Legislature should enact a policy that requires the adoption of a memorandum of understanding between the Board of Education, the Office of Court Administration, and DHHS, similar to those approved for the Board of Education and universities, which will permit data sharing between the justice system and the educational system.

26. Second Pressure Point: Secure Pre-Trial Detention In fiscal year 2011, 2,240 Nebraska youth were detained in a secure or staff-secure facility at least once, and the number of bookings totaled 3,171, reflecting multiple detentions of some of those youth. Detention precipitates higher rates of incarceration, even for similarly situated youth. Studies have found that youth are more likely to eventually receive formal judicial intervention and incarceration, even when controlling for offense severity, race, age, and gender. Additionally, youth can learn deviant behavior when housed with more dangerous or violent youth, an effect called “peer deviancy training.”

27. Detention, continued Alternatives: Risk assessments; deferred prosecution programs; mental health docket; evening reporting center; shelter options; specialized docket for gang members, human trafficking, and prostitution charges; electronic monitoring. Nationwide, JDAI sites saw a 6.1 percent drop in re- arrest rates while awaiting adjudication; 7.2 percent drop in failures to appear. The evidence suggests Nebraska could safely reduce detention usage. o Low-level crimes. o 20.25 days, on average.

28. Early Results in Douglas County Nebraska is now a statewide JDAI site, but Douglas County was the first to adopt the reforms. Between February 2011 and this year, average daily population within their detention facility declined 38 percent, from 167 in 2007 to 104 in 2011, and the average length of stay in the facility has dropped four days in that same time frame. As detention in Douglas County costs approximately $200 per day, per juvenile.

29. Third Pressure Point: Youth Population in the Adult System Nebraska has some youths currently handled in the adult system that may more appropriately be handled in the juvenile system. In raw numbers, approximately 2,619 youth were directly filed in the adult court, and 20.2 percent or 477 of those youth were then transferred to the juvenile court system. Of those 2,619 youth, 35 percent (914 youth) were ages 11-16. Adult court jurisdiction over juveniles can decrease the rehabilitative opportunities for youths. In a review of seven different studies on this topic, the American Journal of Preventive Medicine found an average 33.7 percent increase in the likelihood that a juvenile in the adult court system would be re-arrested for a “violent or other crime than were juveniles retained in the juvenile justice system.” o Holds true even if the original sentence was probation (DOJ).

30. Adult System, continued Not necessarily the “worst of the worst;” not necessarily true rehabilitation possibilities. o Only 12 percent of youths tried as adults received some form of incarceration in jail or prison, while 63 percent received a fine of between $80 and $170. In 2010, only 36 youths were placed in the Nebraska Correctional Youth Facility, the destination for all youths tried as adults and sentenced to a prison term in Nebraska. o These even small numbers of youth placed in the adult correctional facility have a dramatic effect on the correctional system budget. Nebraska’s Correctional Youth Facility currently costs $230.25 per day, over $84,000 per year, which is triple the average cost per adult offenders elsewhere in the correctional system.

31. Policies to Correct System Placements Create a presumption, or “default,” that youths 16 and younger should be handled by juvenile courts (or county courts acting as juvenile courts). o Include a specific waiver provision that would allow judges to remove a youth to the adult court system when the circumstances so require, this would ensure that the public safety is still held to preeminent importance. o Such a default would otherwise ensure that the juvenile justice system—and all its attendant tools—is at least considered as a method to address youth crime and reduce future criminality.

32. Policies, continued Consider blended sentencing. o Sentence begins in a juvenile facility. At the age of majority or other specified point in time, the juvenile justice agency or the original sentencing judge reevaluates the juvenile’s progress; if insufficient rehabilitation is found, the second part of the blended sentence kicks in, and the juvenile (now an adult) is transferred to the adult system for the balance of the sentence. If the agency or the judge is satisfied by the rehabilitation, then the juvenile is released on parole. o Satisfies need to involve the adult court system to alleviate public safety concerns, but also permits younger offenders to begin their sentence with other minors and in more age-appropriate settings and programming.

33. Fourth Pressure Point: Diversion and Probation Nebraska has a formal diversion program, which is an excellent tool for county officials. o Commonly, charges involve alcohol. 68 percent of diverted juveniles are misdemeanants. Biggest issue: lack of adherence to the diversion itself. o 287 youth (5.8%) in one year referred to diversion had no contact whatsoever with the diversion program. o Only 70-90 percent of youth usually participated in one or more appointment. o One study suggests that only 53 percent of all diverted cases were completed “successfully” (completed all of the programmatic requirements). (Data and study may be updated.) o Out of cases closed (some sort of review of the case file) only 62 percent were successful diversion completions.

34. Increasing Diversion Effectiveness Low participation rates may impact the rehabilitation effects of diversion and its ability to remove youth from the system. Enhancing the County Aid Program will greatly enhance diversions, both in breadth and quality. Another policy goal: increase family involvement. o Require attendance at first or more meetings. o Sign a behavior contract.

35. Successful Probation Completions Probation population decreased 11 percent between 2004 and 2011. o 44 percent misdemeanors, 5.7 percent felonies. Liquor offenses, property crimes, assault, and disturbing the peace were the most common offenses. 8.1 percent revocation rate, but a 13.7 percent “unsatisfactory closure” rate. Successful closures are on the decline. o From 2004 to 2011, the number of successful discharges each year from probation dropped from 2,499 to 1,820, a drop of 27 percent. This occurred even though the probation population itself only dropped 11 percent, revealing a proportionally greater decrease in unsuccessful closures.

36. Increasing Probation Effectiveness The County Aid Program will play a role in increasing probation programming. Consider a civil citation program to divert low-level youth away from probation entirely. o In lieu of arrest; community-based programming and services. o Florida boasts high rates of completion (99 percent in some counties) and saved $50 million over five years. o Legislature had passed a pilot program for civil citations; expand from pilot to statewide.

37. Increasing Probation Effectiveness, continued Administrative Sanctions o HOPE Court; immediate sanctions and penalties rather than delayed revocations. o For the HOPE Court in Hawaii (adults) the results were more than 50 percent reduction in probation revocations and reoffending, an 80 percent reduction in missed probation appointments, and an 86 percent reduction in positive drug tests. o LB 800 (2010) permitted administrative sanctions; a mandatory system of administrative sanctions for certain juveniles may decrease revocations and unsuccessful completions. Ensure Full Information Sharing o The information learned and used prior to disposition and during supervision needs to be fully shared and communicated with each responsible officer. This would provide supervision officers a broader frame of reference as to how the youth has responded to different interventions during their progression through the system.

38. Fifth Pressure Point: Overuse of Secure Confinement In FY 2010, 592 youths were committed to the two YRTCs for an average of 160 days (boys) and 229 days (girls). Costs ranged from $183 per day to $257 per day. o Over 50 percent of total OJS budget. o After one year, 29 percent (boys) and 17 percent (girls) returned to custody. Given the nature of the offense in some cases (theft, drug possession, shoplifting), some youths in YRTCs may be low-level and receive more harm than good from secure confinement. o 40% committed for a property crime, 10% for a drug crime, 27% for a violent crime, 13% for a public order offense, and a small minority for probation violations.

39. Right-Sizing Nebraska’s YRTCs Use the County Aid Program to provide counties with the resources who retain youths that otherwise would be sent to state facilities. o Residential treatment, group homes, and drug treatment would be excellent county-based alternatives that could be funded with a per diem from the state. Since less than the daily cost at a YRTC, state savings could follow.

40. Length of Stay In Nebraska, the boys’ YRTC currently has an appropriate average length of stay. The girls, at 229 days, may be too long in some cases. Residential treatment for juveniles with shorter lengths of stay— around six months—are associated with increased treatment effectiveness and gains in positive outcomes, and that longer lengths of stay do not increase positive outcome measures. o Two year study of 17,000 youth in Florida found “no statistically significant relationship to recidivism” for low-risk and moderate risk youth. o A different study matched youths with longer lengths of stay with youth with shorter lengths of stay and found little or no impact on re-arrest rates.

41. Conclusion Nebraska is on the “right track.” The County Aid Program may provide the key to a more efficient and cost effective juvenile justice system from top to bottom: truancy, detained youths, probation and diversion placements, and even avoiding secure confinement when its safe to do so. Every youth diverted from a life of crime saves society $2 million over his or her lifetime.