Report Juvenile Justice 2019 Year-End Report

Diversion, Alternatives to Detention and Risk Assessment Tools

In 2019, Arkansas, Colorado, Louisiana, Tennessee and Washington enacted laws related to using assessment tools to divert appropriate youth from formal court processing.

Arkansas’ law, which will take effect in July 2020, requires all courts to implement diversion agreements based on the use of validated assessment tools, and also mandates the use of risk assessment tools in determining whether commitment of juveniles to the Department of Youth Services (DYS) is appropriate. Courts are prohibited from committing juveniles for misdemeanor offenses if the validated assessment deems them low-risk. Community-based alternative services are required to be evidence-based, developmentally appropriate, family-centered, strengths-based and trauma-informed. Finally, the law also requires the DYS to develop a reinvestment plan to redirect savings realized from reductions in the number of secure confinements to community-based services.

Similarly, Tennessee passed reforms clarifying when a court may place a child on diversion and what conditions, including the completion of substance abuse and mental health treatment services, may be required for the completion of diversion.

Colorado enacted sweeping reform in 2019 requiring the adoption and implementation throughout the juvenile justice system of validated risk and needs assessment tools, including a mental health screening instrument and a tool to be used by district attorneys in determining a juvenile's eligibility for diversion. System stakeholders must be trained on how to use all the tools and develop plans for measuring effectiveness. The law also expanded opportunities to divert youth from the juvenile justice system and limit the use of detention to only young people who pose a safety risk to themselves or the community. New procedures for juvenile probation were also adopted. 

Louisiana enacted “Solan’s Law” in 2019 designed to reduce the number of juveniles detained in the state by using assessment tools. The law states that secure detention shall be used only when it is determined to be necessary based on the child's assessed risk to public safety or to secure the appearance of the child in court. A detention screening instrument to determine the child’s risk to public safety must be used before or as soon as possible after a child is placed in detention. Additionally, each judicial district or parish is statutorily allowed to develop alternatives to detention programs, with no fees to the young people engaged in the program. The law is named after a 13-year-old boy who took his own life in a Louisiana detention facility.

Washington amended its law to keep out of detention those charged with status offenses—conduct that would not be a crime if committed by an adult, but for which juveniles may be adjudicated, including truancy, curfew violations, incorrigibility, running away, and underage possession and/or consumption of alcohol or tobacco. Specifically, the state eliminated the “valid court order exception”, which was a loophole in the law that allowed judges to detain status offenders for disobeying court orders. The new law directs the court to use other interventions including nonsecure out-of-home placement options, community-based mentoring, counseling, family reconciliation, behavioral health services and other services designed to support youth and families in crisis and to prevent the need for out-of-home placement.

Restoring Jurisdiction to the Juvenile Justice System

Michigan became the latest state to raise the age of juvenile court jurisdiction from 17 to 18. Starting in October 2021, 17-year-olds who commit certain crimes will no longer automatically be sent to adult court and will instead start in juvenile court. Another Michigan law now prohibits placement of youth under 18 with adults during confinement, trial or transport.

North Carolina enacted the “Raise the Age Modification” which builds on its 2017 reforms. The law includes a provision to allow youth to be transferred back to juvenile court from adult court if the prosecutor and defense counsel agree to the transfer. It also provides for the automatic expunction of records when a youth is remanded to juvenile court from adult court. 

Oregon will now have fewer young people tried in adult court. Young offenders ages 15 to 17 accused of serious crimes are no longer automatically tried in adult court. Prosecutors must request a hearing to determine whether or not a young person should be tried as an adult.

Due Process Rights and Competency

At least two states enacted laws that increase due process protections and one clarified competency procedures for juveniles.

Montana law now places restrictions on when a DNA sample may be taken by a police officer. A sample may only be taken under a court order, or if a parent has provided written permission. Provisions do allow a sample to be taken if a young person is found to have committed a violent crime.

In Illinois, law enforcement, including school resource officers, must comply with certain restrictions before detaining and questioning a student on school grounds. Notification or attempted notification must be made and documented and reasonable efforts to ensure that the student's parent or guardian is present during the questioning. If the parent or guardian is not present, officers must ensure that school personnel, including, a school social worker, a school psychologist, a school nurse, a school guidance counselor, or any other mental health professional, are present during the questioning.

Utah expanded protections related to juvenile competency by making developmental immaturity a factor in findings of incompetency to stand trial. The new law provides requirements for the evaluation of competency for a young person and provides instructions to forensic evaluators, courts, and others involved with the prosecution, evaluation and adjudication of the young person.

Conditions of Confinement for Juveniles

Five states—Arkansas, Maryland, Montana, Nebraska and New Jersey—enacted statutes limiting or prohibiting solitary confinement.

Arkansas now prohibits any young person who is detained from being placed in punitive isolation or solitary confinement for more than 24 hours unless a physical or sexual assault has been committed by the young person or there is an imminent or direct threat to the young person, other detainees or staff. If a young person is isolated for more than 24 hours, the director of the facility must provide written authorization for every 24-hour period.

Maryland also prohibits anyone under age 18 from being put in restrictive housing unless a director finds clear and convincing evidence that the young person poses an immediate danger to himself/herself, others or staff. Any young person put in restrictive housing must have daily physical and mental health assessments to determine whether the minor may be released, and they must be provided access to the same services—e.g., phone calls, mail, food, water, showers, health care, recreation and education—that any other young person in the facility would receive. Each year, every correctional unit must report to the governor the number of people put in restrictive housing by age, race, gender and basis for restrictive housing.

Montana’s new law defines restrictive housing as confinement to a cell for at least 22 hours a day and limits the use of restrictive housing over 24 hours unless it is “necessary to protect the youth or others.” An administrator must review any restrictive housing assignments within four hours regardless of weekends or holidays. Facilities may adopt policies that require young people to be separated from the general population if the youth exhibits serious behavior problems there are serious behavior problems.

Nebraska now prohibits any member of a vulnerable population, meaning people who are 18 years of age or younger, pregnant or diagnosed with a serious mental illness, from being placed in restrictive housing. Regulations may be put in place for immediate isolation of a young person if they pose a danger to themselves or others.

New Jersey passed the “Isolated Confinement Restriction Act” in 2019, and it goes into effect in August 2020. This law prohibits the use of any solitary confinement for youth age 21 or younger and other vulnerable populations. The law also strictly limits keeping an adult in solitary confinement for more than 20 consecutive days or longer than 30 days during a 60-day period.

Education of Students in Detention Facility

At least two states enacted laws in 2019 related to improving the education of students in detention facilities. Tennessee now requires the Department of Education to develop procedures, to be adopted by the state Board of Education, for providing instruction to students incarcerated in juvenile detention centers for a minimum of four hours each instructional day. Mississippi clarified the record sharing requirements of the home school district when a student is detained. It also states that if a young person is detained for more than 48 hours, the student must receive a diagnostic assessment of grade-level mastery and individualized instruction.  The law also requires a six-week summer enrichment program focusing on language arts and mathematics be available for students who have been detained in the summer months.

Sealing and Expungement of Juvenile Records

At least six states made changes in 2019 to make it easier for juveniles to maintain the confidentiality of records or to seal or expunge their records. Two states, Colorado and Nebraska, now have automatic expungement provisions. 

In Maine, juvenile case records must be kept confidential and only disclosed, disseminated, inspected or obtained by certain parties or by court order. The court may not disclose or disseminate records unless the juvenile is notified and given the opportunity to be heard. The names and identifying information regarding any alleged victims and minors contained in the juvenile case records must be redacted prior to disclosure, dissemination or inspection.

A Texas provision allows a court, without a hearing, to immediately seal records related to alleged conduct of a juvenile if the court finds the allegations are not true. The law also gives authority to a juvenile court to order the sealing of records if the young person was referred to juvenile probation.

Wyoming simplified its juvenile record expungement process by allowing prosecutors to petition for expungement upon successful diversion program completion. The legislation also eliminated the state filing fee for expungement.

Tennessee enacted legislation that authorizes juvenile court clerks, under the direction and order of a judge, to dispose of juvenile court records and documents after a period of 10 years following the juvenile reaching 18 years of age.

Colorado clarified that juveniles can expunge records from municipal courts and now allows class 2 and class 3 misdemeanor sex offenses to be expunged. The law also provides that young people who successfully complete diversion as an alternative to being charged with an offense shall have any law enforcement or school record expunged automatically.

Nebraska enacted similar provisions, requiring that any juvenile’s record be sealed automatically upon satisfactory completion of diversion, mediation, probation, supervision or other treatment program. The record can also be sealed automatically if the charges are dismissed. If a young person’s record is not eligible for automatic sealing, the young person or his or her parent can file a motion to have it sealed six months after the case has been closed or when the juvenile has reached the age of majority, whichever is sooner.

Appendix: List of 2019 Laws by State

Diversion, Alternatives to Detention and Risk Assessment Tools
Arkansas SB 152, Colorado SB 108, Tennessee SB 1325, Louisiana HB 158, Washington SB 5290

Restoring Jurisdiction to the Juvenile Justice System
Michigan SB 102, Michigan HB 4143, North Carolina SB 413, Oregon SB 1008

Conditions of Confinement for Juveniles
Arkansas HB 1755, Maryland HB1001, Montana HB 763, Nebraska LB 686 and New Jersey AB 314

Due Process Rights and Competency
Montana SB 262, Illinois HB 2627 and Utah HB 330

Education of Students in Detention Facility
Mississippi SB 2449 and Tennessee SB 62,

Confidentiality, Sealing and Expungement of Records
Colorado HB 1335, Nebraska LB 354, Maine HB 1135, Tennessee HB 168, Texas HB 1760, Wyoming HB 44