As a Commonwealth’s Attorney charged with responsibility for maintaining and enhancing public safety, I write in opposition to the proposed “Guidelines for Determining the Length of Stay of Juveniles Indeterminately Committed to the Department of Juvenile Justice.” Despite statements to the contrary in section 4.0, are not data-driven, and will ultimately harm public safety. 

I rely on evidence and data to guide my approach to cases. The overview (section 4.0) of these proposed guidelines refers to “the public’s perception of safety and security,” when youth commit serious offenses. Science, not perception, should drive our responses and we should rely on the strong base of research about what does and does not work to improve the likelihood that the young people in our juvenile justice system will change their behavior and succeed as assets to their communities. 

The overview also implies that the proposed longer LOS ranges are needed to provide accountability.  In section 4.0, the proposed guidelines state, “Accountability requires that staff make every effort to instill in juveniles a full appreciation of the harmful impact their actions have had on victims, the larger community, and the juveniles themselves.” Accountability is paramount, but by this definition, accountability does not  require a longer period of incarceration, or even, arguably, incarceration at all. Across the country, jurisdictions are using restorative justice processes to ensure that young people understand — and more importantly, take direct responsibility for — the impact of their actions on victims, the community, their families and themselves. These programs have demonstrated dramatic reductions in recidivism for youth with serious offenses when compared with current court system processes and dispositions.  (And have produced greater hearing for victims as well.)

The proposed LOS guidelines revise and dramatically increase the LOS ranges across all Tiers and risk levels, and add specific, time-consuming release criteria. These changes will dramatically increase the time youth spend in DJJ custody without any data-driven rationale for the change. Moreover, the proposed guidelines ignore the evidence that the current guidelines are working. 

The LOS guidelines adopted in 2015 are grounded in research using DJJ’s own data analysis that tracked re-arrest rates while controlling for offense and risk level. Among other findings, the Virginia-specific data showed that the probability of recidivism — expressed in the one-year rearrest rate — “increased by 33.3% if the [youth’s] LOS was longer than 15 months, and the probability of rearrest within one year was 44.3% higher for a [youth] with a LOS longer than 15 months compared to a [youth] with a LOS of 10 months or less.”

DJJ has not presented any findings that contradict the body of research supporting the current guidlines. In fact, the results achieved using the current 2015 LOS guidelines confirm the research findings. Despite the fact that DJJ has focused on a higher proportion of youth assessed as high risk, between 2014 and 2020, risk-adjusted recidivism rates fell 10% for youth released from DJJ facilities to parole. According to DJJ’s FY 2021 Data Resource Guide (page 79), recidivism for direct care releases, parole placements and parole releases have all fallen from 2018-2020. 

This proposed LOS policy does not include any updated data analysis tracking the impact of time in custody. Meanwhile, the proposed changes in the Tier ranking system (section 6.2, moving many youth with misdemeanors and all of those with parole violations into higher Tiers) and the projected LOS (table, section 6.3) will dramatically increase the LOS for all indeterminately committed youth, without a corresponding public safety benefit.  Given the earlier data analysis, there will be increased recidivism under these LOS guidelines, since 12 out of 20 Tier/Risk categories have a proposed late release date of at least 15 months, with several of them extending considerably longer, and the highest at 36 months. 

Further, national research supports the notion that longer stays in custody weaken youths’ pro-social ties to family and community, add to trauma, lead to worse health and mental health outcomes in adulthood, interrupt the maturation process, and ultimately lead to weaker communities. 

Youth with indeterminate commitments will return to their communities. We owe it to those communities — and to the young people leaving DJJ custody — to give these youth the best chance of success. DJJ’s own recidivism data shows that working with young people in the community, even young people who have been assessed as being at a higher risk to recidivate, is more effective than confinement. DJJ should be looking for more ways to support youth during their reentry and while on parole rather than extending their time in prison-like settings.

Finally, the proposed release eligibility criteria (section 8.2) that require completion of vocational programs and will add considerably to youths’ LOS. What is the rationale and evidence base for the proposed release eligibility criteria, and how will DJJ ensure that they are applied appropriately and fairly? 

While it is laudable that DJJ provides some vocational training options for youth in custody, DJJ should not be in the business of incarcerating youth in order for them to receive such training. It is not clear whether DJJ has explored ways to provide the treatments and services committed youth may need while they are on parole rather than relying on an extended stay in confinement to provide access to these services. Given the detrimental effects of incarceration, serving youth in the community whenever possible should be a top priority.

Vocational skill development can and should be made available to justice-system-involved youth in the community. Court Services Units across the Commonwealth already build local partnerships for various services and supports; these can and should include connecting youth with vocational programming in the community through partnerships with local career and technical education options, workforce development centers and apprenticeship and other training programs, especially those geared to the local employment context. 

Further, without any other changes, the longer lengths of stay in the proposed guidelines will result in a much higher population of youth in DJJ custody. It’s impossible to know exactly how large the increase will be, because DJJ has not released any analysis or population forecast that takes into account these drastically longer LOS guidelines. Nevertheless, it’s clear that the population will grow, which will require additional staff, likely result in overcrowding at Bon Air and may eventually make it necessary to (re)open an additional facility. 

Even if staffing capacity is currently adequate, how will DJJ ensure that it remains so with these changes? The Community Treatment Model (CTM) that DJJ uses in Bon Air requires a cadre of well-trained staff. The proposed LOS changes would exacerbate any existing staffing challenges and/or create such challenges, posing a serious threat to program quality and treatment for youth in direct care. Quality programming and treatment are key to reducing recidivism; if DJJ can’t deliver these because of instituting longer stays, they are making the prospects for public safety worse.

Furthermore, DJJ has re-invested the savings from facility closures into a much-needed continuum of community-based programs and services throughout the Commonwealth. With an increased population of youth in direct care and without a substantial agency budget increase, funds for these services would likely be re-directed to treating youth in facilities, despite the fact that DJJ’s own data shows that treating youth in the community is more effective and costs taxpayers less. This will have a disproportionate impact on jurisdictions that don’t have as much local funding to fill the gap.

DJJ should withdraw these extremely flawed proposed LOS guidelines and do a thorough assessment before submitting any revised LOS policy. The assessment should include an analysis of DJJ data to determine the impact of LOS on recidivism, including the point of diminishing returns at which more time in custody ceases to improve a young person’s likelihood of desistance from crime. At minimum, the assessment should also analyze the impact on the population in Direct Care — and in Bon Air specifically — factor the analysis into the required population forecasts, and determine whether DJJ has the human and financial resources, and the physical capacity, to provide safety, connection, purpose, and fairness for that expected population of young people.