A few years ago, legal reformers petitioned the Kansas Legislature to modify the state’s juvenile justice system to incarcerate fewer youths. It’s hard to argue that warehousing young offenders in jail isn’t counterproductive, so the Legislature passed Senate Bill 367 and Gov. Sam Brownback signed it into law on April 11, 2016.
Before, judges could detain juveniles up to 28 days per violation, and didn’t have to wait for them to commit more than one offense. Under SB 367, only after committing what is referred to as a “technical” violation for the third time can the youth be brought before a judge — and even then, a judge cannot detain the youth unless he or she poses a danger to others or others’ property.
A juvenile who merely defies the court’s orders by not showing up for probation meetings, continuing to use illegal drugs, refusing to attend drug or alcohol treatment programs, or even refusing to submit to drug tests will not end up in detention. For these technical violations, the judge can only point a finger and tell the young person to behave.
Before SB 367, we incarcerated many juveniles for too long. It was not unusual for judges to detain young offenders for 90 days or more for failing drug tests, missing school, missing probation officer meetings or other minor violations. When I was in private practice as a lawyer, I saw these types of punishments for crimes as minor as disorderly conduct, petty theft, marijuana possession — even schoolyard fights.
Moreover, the court could retain jurisdiction and the power to incarcerate 12-year-old offenders up until the youth’s 18th birthday. That’s five years longer than misdemeanor probation for adults. Kansas’ system needed reform.
The 2016 juvenile justice reform’s cookie-cutter, one-size-fits-all approach may be good for some youths — but not all. And it may also be bad for our community.
Consider the legislation’s possible negative impact on juvenile crime rates. In Sedgwick County, one of the two most populous counties in Kansas, charging rates for many mid- to low-level felonies increased, some by double digits. Class A misdemeanors increased more than 10%, and Class B misdemeanors increased more than 50%.
More crimes charged means more trouble for juvenile offenders, and also more victims. Would-be juvenile offenders know they won’t face serious consequences, so they aren’t afraid to commit new crimes.
This is not what lawmakers intended, so it’s time to tweak the state’s juvenile justice legislation to restore the most serious consequence to criminal behavior while preserving the spirit of reform.
The Legislature should give courts discretion to detain young offenders for repeated violations. Leave the need for findings to incarcerate for the first three violations unchanged. But for the fourth and each subsequent violation, give judges the discretion first to hold a hearing, and then to impose up to 48 hours detention for each violation without the need for additional findings. And for the fifth offense or more, give courts discretion to impose up to five days of confinement for each violation.
Some juvenile offenders need to know that they may be detained if they refuse to comply with the court’s orders. Until they do, we will continue to see juvenile crime rates increase. And that means more victims — including juvenile offenders who lack respect for a seemingly toothless juvenile justice system.
Kevin M. Smith is a district court judge in the 18th Judicial District, where he presides over child in need of care and juvenile offender cases.