TOPIC AREA

CURRENT LAW

HOUSE BILL (H.R. 1501)

SENATE BILL (S. 254)

Recommendations

Disproportionate MINORITY Confinement.

(42 U.S.C.

§ 5633(a)(23))

Under current law, states must make efforts to address any disproportionate minority confinement within their juvenile detention facilities. The DMC became a core requirement in 1992 to address a serious problem of overrepresentation of minority youth in juvenile detention centers. States are given broad discretion to determine what measures to take.

Sec. 1310.

State plans must address delinquency prevention and system improvement efforts to reduce the disproportionate number of minority juveniles who come into contact with the juvenile justice system as well as addressing any disproportionality that exists in detention facilities. Numerical standards or quotas may not be established.

Sec. 222.

(a)(27). Language does not specifically mention race. State plans must address any disproportionate confinement of "any segment of the population."

Senate provision should be rejected.

The Senate should cede to the House. By eliminating any specific reference to race, the Senate version eliminates the original purpose of the provision. This may have the affect of terminating programs already in place at the state level to address this problem.

Juveniles in Prison: Separation from Adult Inmates. (STATES)

(42 U.S.C.

§ 5633(a)(13) as interpreted by regulations)

Youth under juvenile court jurisdiction may not be detained where there is any physical or sustained sight or sound contact with adult inmates.

- sight contact is defined as "clear visual contact between incarcerated adults and juveniles within close proximity

to each other."

- sound contact is defined as "direct oral communication between incarcerated adults and juvenile offenders."

- ALL contact is prohibited in the residential areas of a facility.

Sec. 1310.

Instead of current law standard of "sight and sound" separation, states need only ensure that juveniles not have "regular contact" or unsupervised incidental contact. This would permit incidental contact with adults.

Sec. 103.

State detention centers must ensure that juveniles do not have prohibited physical contact or sustained oral communication with incarcerated adults. Brief and inadvertent superficial contact is permissible.

House provision should be rejected.

The House should cede to the Senate. The House language creates a loophole to allow for supervised incidental contact which could lead to potentially dangerous situations for juveniles.

Juveniles in Prison: Separation from Adult Inmates.

(FEDERAL)

(18 U.S.C. § 5035)

A juvenile under age 18 may be detained only in a suitable juvenile facility or other suitable place designated by the Attorney General with a preference for a foster home or community-based facility. The juvenile may not be detained in a facility where he or she has regular contact with an adult convicted of a crime or awaiting trial on a crime. Insofar as possible, alleged delinquents should be kept separate from adjudicated delinquents.

Sec. 204.To the maximum extent feasible, a juvenile prosecuted as an adult in federal court shall not be detained prior to sentencing in any facility in which the juvenile has regular contact with adult persons convicted of a crime or awaiting trial on criminal charges.

- A juvenile who is prosecuted as a juvenile shall not be detained prior to disposition in any facility in which the juvenile has regular contact with adult persons convicted of a crime or awaiting trial on criminal charges.

Sec. 103. Delinquent youth in federal court may not be detained:

- where they have prohibited physical contact or engage in sustained oral communication with incarcerated adults that provides an opportunity for the adult to physically harm the youth;

- an exception to prohibited contact allows for supervised proximity between a youth and an adult inmate that is brief and inadvertent or accidental, in secure nonresidential areas not used by juveniles.

Sec. 105(b). Release and Detention Prior to Disposition.

To the extent practicable, violent juveniles shall be kept separate from nonviolent juveniles.

House provision should be rejected.

The House should cede to the Senate. The House language creates a substantial loophole which could allow certain youth as young as 13 who are prosecuted in the Federal system to have unlimited exposure to adult inmates.

REMOVAL of JUVENILES from ADULT JAILS. (STATE)

(42 U.S.C.

§ 5633(a)(14))

Youth may be detained in adult facilities for the following purposes:

- 6 hours for processing, or 6 hours before or after a court appearance;

- in rural areas, for 24 hours plus weekends & holidays for delinquent youth who are awaiting an initial court appearance;

- during and up to 24 hours after emergency conditions that make travel unsafe.

Sec. 1310.

Extends current law to allow detention with adults subject to separation requirements described above.

For juveniles accused of nonstatus offenses and detained in a jail/lockup for a period not to exceed 6 hours: (i) for processing or release; (ii) while awaiting transfer to a juvenile facility; or (iii) in which period such juveniles make a court appearance;

- In rural areas, for 48 hours plus weekends & holidays for youth accused of nonstatus offenses who are awaiting an initial court appearance;

- In rural areas, for up to 20 days prior to sentencing whenever parents consent, the child's views are represented by counsel, and the court determines detention is in the child's best interest. Subject to review every 5 days in the presence of the juvenile;

During and up to 24 hours after emergency conditions making travel unsafe have cleared.

Sec. 222.

Extends current law to allow detention with adults:

- In rural areas for 48 hours plus weekends & holidays for delinquent youth awaiting an initial court appearance;

- In rural areas, indefinitely whenever parents consent, the child's views are represented by counsel, and the court determines detention is in the child's best interest. Subject to review every 5 days; such review MAY be in the presence of the juvenile.

- During and up to 48 hours after emergency conditions making travel unsafe.

The parental consent exception in both Senate and House provisions should be rejected.

This exception is a radical change to current law and will result in children being placed in adult jails for unacceptably long periods.

Confidentiality of RECORDS.

(STATE)

(42 U.S.C.

§ 3796 et seq.)

Federal grant provisions do not require any particular method of maintaining or disseminating juvenile records.

Sec. 102. Grant Program.

Funding from the Juvenile Accountability Block Grant is available to States providing an adult-equivalent records system for all juveniles committing a felony-equivalent offense, with information available to law enforcement, FBI, all courts, and school officials.

Sec. 504. Grant Program for

Juvenile Records.

Authorizes a grant program for States to improve record-keeping systems. In order to qualify, states must have in place a system to make juvenile records available for firearm background checks. This system must assure that records of violent juvenile offenses are not expunged and are available as if it were an adult record.

Sec. 1310. State Plans.

(Amends 42 U.S.C. § 5633)

An amendment to the Juvenile Justice and Delinquency Protection Act requires that the State, to the maximum extent practicable, will implement a system to ensure that if a juvenile is before a court in the juvenile justice system, public child welfare records relating to such juvenile that are on file in the geographical area under the jurisdiction of the court are made known to the court.

Sec. 321. Block Grant Program.

In order to receive funds from the Attorney General, States must provide an adult-equivalent records system for all juveniles committing a felony-equivalent offense, with information available to law enforcement, FBI, all courts, schools and colleges.

- If a juvenile is adjudicated delinquent, the records of that adjudication are transmitted to the FBI. Records of the most serious felony offenses shall be maintained and disseminated in the same manner as adult criminal records. Records of any other felony offense shall only be made available within the criminal justice system. There is also a provision that allows for the record to contain a notation of expungement under State law.

Sec. 1104. Transfer of School Disciplinary Records.

(Amends 20 U.S.C. 8921 et seq. Part F, § 14604(b).)

Within 2 years after this Bill's enactment, each State receiving federal funds under this Act shall provide an assurance to the Secretary that the State has a procedure in place to facilitate the transfer of disciplinary records by local educational agencies to any private or public elementary school or secondary school for any student who is enrolled or seeks, intends, or is instructed to enroll, full-time or part-time, in the school.

Oppose language in BOTH bills and remove in Conference.

However, we recommend continuing current law privacy protections for juvenile records. However, in the alternative we recommend restricting the shared information to courts and law enforcement agencies only. We also recommend that schools be required to go to the courts to access juvenile records. The records should only be released if the schools can establish a compelling need to protect the safety of other students.

Confidentiality of RECORDS. (FEDERAL)

(18 U.S.C.

§§ 5038(a),(c))

Records of juvenile proceedings may be released to: other courts, an agency preparing a report for another court, law enforcement agencies for use in an investigation or law enforcement employment check, the treatment agency or facility to which a juvenile has been committed, an agency conducting a national security employment check, the victim of the juvenile's act of delinquency indicating final disposition. They may NOT be released for any other employment check, license, bonding, or similar request.

Sec. 207. Juvenile Records and Fingerprinting.

A juvenile delinquent's records shall be made available for official purposes, including communications with any victim or, in the case of a deceased victim, such victim's representative, or school officials, and to the public to the same extent as court records of adult criminal prosecutions are available. When a juvenile has been adjudicated delinquent for an act that, if committed by an adult, would be a felony or for a violation of section 924(a)(6), the court shall transmit to the FBI information concerning the adjudication, including name, date of adjudication, and notation that it was a juvenile adjudication.

Sec. 108. Use of Juvenile Records.

When a juvenile is adjudicated delinquent, courts shall transmit such records to the FBI, which will maintain an adult-equivalent records system. These records will be available to schools/colleges, provided that their content is not used for the sole purpose of denying admission.

- In addition to all the ways that juvenile records can be released under current law, there is an additional provision that requires juvenile records to be made available to a law enforcement agency for a position within that agency. If a juvenile is adjudicated delinquent, the records are transmitted to the FBI. Records of the most serious felony offenses shall be maintained and disseminated in the same manner as adult criminal records. Records of any other felony offense will also be transmitted to the FBI but will only be made available within the criminal justice system or for purposes of responding to a national security clearance.

- A juvenile may petition the court after 5 years to have such records removed from the FBI database if they can establish by clear and convincing evidence that they are no longer a danger to the community.

Oppose language in BOTH bills and remove in Conference.

However, of the two we prefer the Senate version which limits records sharing and contains a provision that allows the juvenile to petition to have his or her records removed from the database after 5 years if he or she can establish they are no longer a danger to the community. Additionally, we recommend restricting information sharing to courts and law enforcement agencies with a requirement that schools can only access information with the court's permission.

We also recommend that schools be required to go to the courts to access juvenile records. The records should only be released if the schools can establish a compelling need to protect the safety of other students.

PROSECUTING JUVENILES in FEDERAL COURT:

Expanding Federal Jurisdiction.

(18 U.S.C.

§§ 5032