When an interim legislative committee set out this summer to understand why Wyoming locks up more kids per capita than other states, lawmakers quickly realized the data needed to answer that question was unavailable. As a result the Joint Judiciary Committee sponsored House Bill 37 – juvenile justice data reporting for introduction in the upcoming budget session that begins Monday.
The proposed legislation charges the Department of Family Services with standardizing juvenile justice data collection. Throughout the interim session, “it became clear that there were some disparate data systems,” said Lindsey Schilling, senior administrator for social services, the DFS division responsible for juvenile justice. “Several different entities had different parts of the information that would be needed to make good policy decisions. So this was a bill that the committee came up with to try and look at finding a solution to the disconnected and disparate data collection efforts.”
The data is disparate because the system is disparate. Instead of sending all juvenile cases to juvenile court, county attorneys have discretion — a policy known as single point of entry — and each county takes a slightly different approach. Some funnel juvenile cases to municipal and circuit court, some rely on juvenile court and others routinely use all three. There are also counties with diversion programs designed to keep juvenile offenders out of court all together.
Without a means of tracking juvenile justice from county to county, it’s hard to gauge whether current practices yield positive outcomes for young people and public safety. Wyoming doesn’t know recidivism rates or high school graduation rates for juvenile offenders, or how often they reoffend as adults.
The bill doesn’t fill all the holes, advocates say, and there’s concern about compliance. But stakeholders call it a good start.
Gotta start somewhere
Wyoming doesn’t have mechanisms for tracking all the ways the justice system entangles children, but DFS has some data on juvenile court.
When a juvenile court judge decides a child has broken the law, the judge can sanction the child. DFS then oversees the judges orders, be it counseling, community service, incarceration or probation.
The juvenile court cases DFS tracks, however, are just a sliver of the overall children who come in contact with the justice system. DFS hasn’t been required to collect data from municipal and circuit courts, or locally run diversion and probation programs. If passed into law, HB 37 will start to change that.
“The desire is just to understand the system, who’s coming into the system, how they’re getting there,” Schilling said. “How many are then moving on to correctional systems? How many are being diverted to local programs? There just generally wasn’t a way to even kind of understand the system as it currently exists today.”
It’s a good place to start, Schilling said, but the draft still leaves out municipal courts. For some counties, that would omit a significant amount of juvenile justice data. In Sweetwater County, for example, nearly half the juvenile cases went to the municipal courts in Rock Springs and Green River between 2015 and 2019, according to documents provided by Damon DeBernardi, the former Sweetwater County deputy attorney and current chair of the governor’s State Advisory Council on Juvenile Justice.
The difficulty in collecting data from municipal courts is jurisdiction, Schilling said. District and circuit courts are funded and overseen by the state, whereas municipal courts are the purview of cities and towns.
“I think conversations will have to continue on how to roll in all of the activity that happens in the municipal court,” says Schilling. “What I think this does is establish the foundation and kind of backbone and I don’t have any doubt that the committee and advocacy groups will continue to build on what we can set up and start under this particular piece of legislation.”
There’s also the issue of compliance. The draft bill saddles DFS with assuring participation by state agencies and governmental entities required to provide data, but it’s not clear what happens if they don’t. “What I didn’t see in the draft was sort of the consequences or penalties for non-compliance,” Schilling said.
Dropping the ball
History indicates there’s good reason to be concerned about compliance. As the Joint Judiciary Committee discovered, 20 years ago Wyoming lawmakers passed similar legislation requiring the Division of Criminal Investigation to coordinate with the courts to gather juvenile justice data and to report to the legislature on an annual basis. But that never happened.
“Everyone, on all three branches of government, are responsible for this failure,” judiciary Co-chair Sen. Tara Nethercott (R-Cheyenne) told the committee in September. “For 20 years we were supposed to have been reported to about this data, and we never asked for the report, never received the report obviously and didn’t review the report. So we dropped the ball as legislators. The judicial branch never turned over any of the data and the executive branch never asked for it to be collected. So an epic failure on all of our parts for which we all share responsibility.”
Questions about whether Wyoming’s juvenile justice policies lead to positive outcomes for children also have implications for the state budget. The proposed 2023-24 biennial budget allocates $26 million to operate the Boys and Girls schools. On top of that, DFS pays private entities who handle an array of programs for juvenile offenders, from residential treatment to transportation to counseling. In 2020, that cost DFS over $7 million.
“Should we be spending our money differently, and more effectively and more efficiently?” Nethercott asked the committee. “I think it’s fair to say that none of us know the answer to that question, but we are committed to finding it, and so that’s the goal of the data.”
Advocates say Wyoming has a long history of dropping the ball on juvenile justice reform.
“Juvenile justice is one of the things we talk about, but talk about and do nothing, or do a very piecemeal type of thing,” Beth Evans said. She was the chair of the State Advisory Council on Juvenile Justice in 2011 when the Joint Judiciary Committee also took up juvenile justice as an interim topic.
Wyoming had one of the highest juvenile incarceration rates in the nation at that time too, and Evans went to the committee meeting in Worland to send a message to lawmakers.
“When I went to that meeting, I pulled in an old red wagon, with every study I could find that had been done about Wyoming, and in Wyoming, and the red wagon was full,” Evans said.
There were reports in that wagon dating back to 1969.
“You want another study?” Evans said she asked the committee. “What are we going to do? Just put it on top of this pile?”
Study after study pointed to how a lack of data allowed for ineffective practices to prevail in certain communities, Evans said. “If you’re picked up for a minor in possession in Lusk, you’re treated differently than Casper, and you’re treated differently than Rock Springs. A lot depends on the county attorney.”
But several county attorneys told the committee they opposed changes to juvenile justice, according to minutes from the meeting.
Evans said prosecutors were resistant to the state telling them what to do.
‘Precursor to an overhaul’
John Worrall remembers that red wagon. He had a private law practice in Worland at the time and recalled attending the 2011 Joint Judiciary Committee meeting just to listen. Fast forward to 2022, and Worrall is now the Washakie County Attorney and president of the Wyoming County & Prosecuting Attorneys’ Association.
“My association supports this bill,” Worrall said. He’s heard concern from some county attorneys about having to fill out more forms, but that doesn’t worry Worrall. “I’m thinking that it isn’t going to really hinder me in doing my job.” Worrall said he hopes data collection is the precursor to a major overhaul.
“To be totally frank, there’s a lot of things that are wrong with our juvenile justice system in this state, and it’s partly a function of the fact that we’re quite a small state and mostly rural,” Worrall said. With a small population spread across a large area, it can be hard for every community to provide programming for troubled youth, but Worrall says data could identify areas most in need.
“I’m talking about serious information collection, and efforts to devise plans for these kids to keep them away from the kind of things that get them in trouble,” he said. On Worrall’s list is increased access to mental health care and substance use treatment for young people in rural communities.
“How do you get people to understand that we need to spend some money to hopefully better treat the youth and get better outcomes from them?” Worrall asked. “So we don’t have them all at the Boys School or the Girls School, or juvenile detention centers in Casper and Gillette.”
Figuring out how to keep juveniles out of those facilities, and in their communities, is what advocates hope more data will enable Wyoming to do. Right now the only way to measure progress is to rely on data provided by the U.S. Department of Justice’s Office of Juvenile Justice and Delinquency Prevention. For nearly two decades, the results of the U.S. Census of Juveniles in Residential Placements indicated that Wyoming places juvenile offenders involuntarily in facilities at higher rates than the rest of the nation.
The federal data also shows that juvenile offenders are locked up for probation violations at a rate well above the national average, and higher than neighboring states and other states with small populations.
During the interim, state officials and stakeholders raised concern about accuracy of the federal figures. Last June, DFS Director Korin Schmidt told the committee federal data inflated Wyoming’s incarceration rate.
“So when we talk about things like incarceration rates . . . those rates for us also include children who have been abused or neglected, that maybe need a higher level of care, they need to place it in a residential treatment center,” Schmidt said. Judges can also place children in facilities for foster care or for psychiatric treatment, and Schmidt told the committee she’s concerned those children are miscounted as juvenile offenders.
The rate of juvenile offenders in out-of-home placements is based on a voluntary one-day count administered by the U.S. Census Bureau usually on the third Wednesday in October every odd year. The form asks participating facilities for the total number of people under 21 assigned beds in the facility, and for the total number in the “facility SPECIFICALLY BECAUSE they were CHARGED WITH OR COURT-ADJUDICATED FOR AN OFFENSE,” (emphasis from the form).
The survey includes detailed instructions and defines the terms used in the survey questions. Given how specific the form is, it’s unclear how foster care or psychiatric admissions might be mistakenly included, but Chris Moll, president of the Wyoming Youth Services Association, said “there’s confusion about who to fill the form out for.” WYSA, which represents private group homes and residential treatment centers across the state, supports the juvenile justice data reporting bill. “We need some consistency,” Moll said.
The federal data could be an overcount or an undercount, but it’s hard to say for certain because the list of participating facilities is not made public.
In addition to private and state-run facilities, there are also four county-run juvenile detention centers. When contacted directly, only two of the four told WyoFile they filled out the survey.
Moll is hopeful Wyoming’s juvenile justice data reporting bill will garner more participation than the federal survey. “There’s a lot of counties that see anything with OJJDP on it and they want nothing to do with it,” he said, adding that for some it feels like “it’s government overreach.”
The proposed legislation would take effect July 2024, giving DFS time to promulgate rules and get a new datasystem online. Schilling from DFS says she’s optimistic about participation in part because new technologies make data entry easier.
The bill is an important step, Rep. Karlee Provenza (D-Laramie) said, but she’s unsure DFS is the right agency for the job.
“It’s not a perfect solution but we don’t have any data right now, so some data is better than none,” she said. Provenza is concerned that because DFS oversees juvenile probation and the Boys and Girls schools, there’s a conflict of interest in asking the agency to police itself.
“Who tattles on themselves?” she asked. The bill as it stands doesn’t guarantee oversight, she added.
Worrall, the county attorney, says one interim wasn’t enough to fully address the challenge. “Unless we get into this juvenile justice question with both feet, and commit not only the time to study it properly and to do what needs to be done,” he said, it could result in one more study in the wagon but no change.
“If we ever really want to accomplish some dramatic change in what goes on in our juvenile justice system, we just have to give over to the idea that we’re going to do it and we’re going to spend what it takes to get it right, because we’re talking about one of our most precious resources for everybody and that’s our children,” Worrall said.