[Federal Register Volume 61, Number 238 (Tuesday, December 10, 1996)]
[Rules and Regulations]
[Pages 65132-65140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31316]
[[Page 65131]]
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Part IV
Department of Justice
_______________________________________________________________________
Office of Justice Programs
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28 CFR Part 31
Formula Grants; Final Rule
Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 /
Rules and Regulations
[[Page 65132]]
DEPARTMENT OF JUSTICE
Office of Justice Programs
28 CFR Part 31
[OJP (OJJDP) No. 1106]
RIN 1121-AA43
Formula Grants
AGENCY: Office of Justice Programs, Office of Juvenile Justice and
Delinquency Prevention, Department of Justice.
ACTION: Final rule.
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SUMMARY: The Office of Juvenile Justice and Delinquency Prevention
(OJJDP) of the U.S. Department of Justice is publishing the final
revision of the existing Formula Grants Regulation, which implements
part B of Title II of the Juvenile Justice and Delinquency Prevention
(JJDP) Act of 1974, as amended by the Juvenile Justice and Delinquency
Prevention Amendments of 1992.
This final regulation is a further clarification and modification
of the regulations issued in March and April of 1995. It offers greater
flexibility to States and local units of government in carrying out the
Formula Grants Program requirements of the JJDP Act, while reinforcing
the importance of complying with those underlying legal requirements
and the policy objectives from which they stem.
The Department of Justice remains firmly committed to the core
requirements of the JJDP Act, such as the obligation to maintain sight
and sound separation between juveniles and adults. With that in mind,
this regulation is expected to assist jurisdictions that are working
diligently to comply with statutory and regulatory obligations by
expressly providing such flexibility as State authorized transfers of
delinquents who have reached the age of full criminal responsibility to
the criminal justice system and by recognizing certain real-world
factors which can make ``perfect'' compliance unrealistic. These
regulatory changes are in no way intended to evidence any lessening of
the Department's commitment to the core requirements.
EFFECTIVE DATE: This regulation is effective December 10, 1996.
FOR FURTHER INFORMATION CONTACT: Roberta Dorn, Director, State
Relations and Assistance Division, Office of Juvenile Justice and
Delinquency Prevention, U.S. Department of Justice, 633 Indiana Avenue,
NW., Room 543, Washington, DC 20531; (202) 307-5924.
SUPPLEMENTARY INFORMATION:
Description of Major Changes
Contact With Incarcerated Adults
The revised regulation provides definitions of sight and sound
contact to assist in understanding the level of separation that is
required under section 223(a)(13) of the JJDP Act (section 223(a)(13)).
Sight contact is defined as clear visual contact between incarcerated
adults who are in close proximity to juveniles alleged to be or found
to be delinquent, status offenders, and nonoffenders in a secure
institution. Sound contact is defined in the regulation as direct oral
communication between incarcerated adults and juveniles in secure
institutions. While separation must be provided through architectural
or procedural means, the revised regulation provides that sight or
sound contact that is both brief and inadvertent or accidental must be
reported as a violation only if it occurs in secure areas of the
facility that are dedicated to use by juvenile offenders, including any
residential area. A residential area is an area used to confine
individuals overnight, and may include sleeping, shower and toilet, and
day room areas.
Placement of Delinquents in Adult Facilities
State laws are increasingly providing for the mandatory or
permissible transfer (or placement) of adjudicated delinquents to adult
facilities once the delinquent has attained the age of full criminal
responsibility under State law. The revised regulation expressly
provides that the section 223(a)(13) separation requirement is not
violated as a result of contact between an adjudicated delinquent and
adult criminal offenders in a secure institution once the adjudicated
delinquent has reached the age of full criminal responsibility
established by State law, provided that the transfer (or placement) of
the adjudicated delinquent is required or authorized under State law.
Expansion of 6-Hour Hold Exception to Pre and Post Court Appearances
The revised regulation builds upon the existing authority to place
an alleged or adjudicated delinquent juvenile in an adult jail or
lockup for up to 6 hours by providing a 6 hour time period immediately
before and/or after a court appearance, subject to the section
223(a)(13) separation requirement, during the time the delinquent
juvenile is in a secure custody status in the adult jail or lockup.
Collocated Facilities
The revised regulation removes the requirement that a needs-based
analysis precede a jurisdiction's request for State approval of a
juvenile holding facility that is collocated with an adult jail or
lockup to qualify as a separate juvenile detention facility. OJJDP
concurrence with a State agency's decision to approve a collocated
facility will no longer be required. On-site reviews by the State to
determine compliance, coupled with OJJDP's statutorily required review
of the adequacy of state monitoring systems, will be used to insure
that each collocated juvenile detention facility meets and continues to
meet the collocated juvenile detention facility criteria.
The revised regulation permits the sharing of common use
nonresidential areas of collocated adult and juvenile facilities on a
time-phased basis that prevents contact between juveniles and adults.
Secure juvenile detention facilities around the country are routinely
overcrowded. OJJDP's objective is to encourage the development and use
of separately located juvenile facilities whenever possible. Still, it
is recognized that expecting every jurisdiction to create wholly
separate juvenile facilities, including the duplication of costly
infrastructure elements like gymnasiums, cafeterias, and classrooms,
may result in those jurisdictions being unable to provide any secure
juvenile detention capacity. The revised regulation makes it possible
for more jurisdictions to provide juvenile facilities by removing the
requirement that collocated facilities not share program space between
juvenile and adult populations. Utilization of time-phasing will allow
both juveniles and adults access to available educational, vocational,
and recreational areas of collocated facilities. Time-phased use is
explicitly limited to nonresidential areas of collocated facilities and
requires the use of written procedures to ensure that no contact occurs
between detained juveniles and incarcerated adults.
Deinstitutionalization of Status Offenders
The revised regulation expressly provides, formalizing existing
OJJDP policy, that it is permissible to hold an accused status offender
or nonoffender in a secure juvenile detention facility for up to 24
hours, exclusive of weekends and legal holidays, prior to an initial
court appearance and up to 24 hours, exclusive of weekends and legal
[[Page 65133]]
holidays, immediately following an initial court appearance.
Valid Court Order
The revised regulation eliminates the regulatory language
suggesting that jurisdictions use multi-disciplinary review teams to
prepare and submit a written report to a judge who is considering an
order that directs or authorizes the placement of a status offender in
a secure facility for the violation of a valid court order pursuant to
the valid court order exception to section 223(a)(12)(A). Although a
multi-disciplinary team is still an appropriate option, and is
encouraged when practical, this suggestion led to some confusion and,
therefore, the example was unnecessary.
Removal Exception
The revised regulation eliminates the requirement for States to
document and describe, in their annual monitoring report to OJJDP, the
specific circumstances surrounding each individual use of the distance/
ground transportation and weather exceptions to the section 223(a)(14)
jail and lockup removal requirement.
Compliance With Separation Requirement
The revised regulation modifies the compliance standard that
penalized States that have not enacted laws, rules, and regulations, or
policies prohibiting the incarceration of all juvenile offenders under
circumstances that would be in violation of the section 223(a)(13)
separation requirement. These States were not eligible for a finding of
compliance if any instances of noncompliance were sanctioned by state
law, rule or regulation, or policy. Instead, the revised regulation
establishes a single standard applicable to all States regardless of
whether a law, rule or regulation, or policy exists that prohibits the
detention or confinement of juveniles with incarcerated adults in
circumstances that would be in violation of section 223(a)(13),
providing that compliance can be established under circumstances in
which:
(1) the instances of noncompliance do not indicate a pattern or
practice; and either (2) adequate enforcement mechanisms exist; or (3)
an acceptable plan has been developed to eliminate the noncompliant
incidents.
Minority Detention and Confinement
The revised regulation specifically provides that the purpose of
the section 223(a)(23) Disproportionate Minority Confinement core
requirement is to encourage States to programmatically address any
features of its justice system that may account for the
disproportionate detention or confinement of minority juveniles. The
regulation is revised to clearly state that the Disproportionate
Minority Confinement core requirement neither requires nor establishes
numerical standards or quotas in order for a State to achieve or
maintain compliance.
Discussion of Comments
The proposed revisions to the existing Formula Grants Regulation
were published in the Federal Register on July 3, 1996 (61 FR 34770),
for public comment. Written comments were received from thirty-six
respondents on ten issues addressed by the proposed regulation. The
respondents represent a diverse group including child advocacy
organizations, state agencies responsible for carrying out the JJDP
Act, and public interest groups. All comments have been considered by
OJJDP in the issuance of this final regulation.
The following is a summary of the comments and the responses from
OJJDP:
1. Comment: Several respondents raised concern over the proposed
clarification of the Section 223(a)(13) prohibition against contact
between incarcerated adults and juveniles who are in close proximity
but not at such distances as ``several hundred feet.'' These
respondents contended that this statement in the commentary section of
the proposed regulation appears to conflict with the later statement in
the commentary section concerning the prohibition against systematic
contact. These respondents suggested that the ``several hundred feet''
standard would create monitoring difficulties and, consequently, it
should be clarified that ``several hundred feet'' was intended only as
an example and that the ability for a juvenile and adult to communicate
is the key. These respondents felt that it should be made clear that
``systematic, procedural, and condoned contact is always prohibited.''
Response: The Section 223(a)(13) separation requirement is designed
to protect juveniles who are at risk from contact with adult offenders
while under the delinquency jurisdiction of the juvenile justice
system. OJJDP agrees with the comment that ``systematic, procedural,
and condoned contact is always prohibited.'' The ``several hundred
feet'' example was intended to illustrate a common sense approach to
determining if visual ``contact'' or oral ``communication'' is
possible. This is not an issue of systematic, procedural, or condoned
contact, but one of the potential for harm to juveniles. OJJDP does not
believe that a juvenile who is able to see an adult from a significant
distance is in danger of being harmed. Simultaneous use of secure areas
of adult facilities continues to be prohibited and, under the revised
regulation, time-phased use of common use areas to achieve separation
is permitted in both collocated facilities and adult jails, lockups, or
other adult institutions. For collocated facilities, this revision is
designed to allow both juveniles and adults access to available
educational, vocational, and recreational areas common to the two
facilities.
2. Comment: A number of respondents opined that the ``brief and
inadvertent'' contact language of the proposed regulation essentially
changes the Section 223(a)(13) prohibition from ``no contact'' back to
``no regular contact'' for nonresidential areas of institutions.
Relaxing the no contact standard, it is argued, would permit more
violations because violations are already occurring under current
regulations. Several respondents believe this proposed regulation would
``muddy the waters'' and may ``expose children to needless risks'' by
lowering the standards to which states must adhere. They assert that
national policy should set the separation standard at the highest
possible level.
Response: The revised regulation seeks to clarify with
particularity the prohibition of systematic, procedural, or condoned
contact between incarcerated adults and juveniles. It is not the intent
of OJJDP, through the revised regulation, to in any way encourage or
tolerate increased contact between incarcerated juveniles and adults,
or to expose juveniles to greater risk. However, common sense and
practicality suggested that the regulatory definitions of both sight
and sound contact needed to be clarified, so that appropriate and
reasonable parameters would guide State and local policy and practice.
In considering the respondent comments concerning this proposed
regulatory clarification, it is important to note that the obligation
of local jurisdictions housing juveniles to maintain sight and sound
separation by architectural means or by established policies and
procedures remains firmly in place. This obligation, coupled with the
maintenance of policies, practices and facilities designed to maximize
separation, is designed to maintain strict adherence to the ``no
contact'' statutory prohibition between juveniles and adults in secure
custody.
OJJDP also believes, however, that strict adherence to the ``no
contact''
[[Page 65134]]
prohibition is not inconsistent, in view of the lack of a statutory
definition of the word ``contact'', with a recognition that brief and
inadvertent or accidental sight or sound contact may occur, upon
occasion, in nonresidential areas of a secure institution, without
being considered a reportable violation of the separation requirement.
OJJDP believes it would be unfair to penalize jurisdictions working
consistently and genuinely to maintain sight and sound separation
through policies, practices, and facilities architecture if brief and
inadvertent or accidental contact between a juvenile and adult occurs
in common use areas. This recognition should in no way be interpreted
to indicate acceptance or tolerance of such impermissible contacts, but
only as a recognition that in such environments, even the very best
intentioned facility administrators may not prevent all short-term,
accidental contact between juveniles and adults in a portion of the
facility used at different times by both juveniles and adults.
Nonetheless, based on the concern expressed in the comment, OJJDP
has expanded the regulatory language to prohibit contact in any secure
areas of an institution that are dedicated to use by juvenile
offenders, including any residential area. A residential area is an
area used to confine individuals overnight, and may include sleeping,
shower and toilet, and day room areas. OJJDP recognizes that in many
jurisdictions, especially jurisdictions in rural areas, there may be
periods of time when no juveniles are detained in an adult jail or
lockup facility. During these periods, jurisdictions use all areas of
the facility, including those areas dedicated to use by juveniles when
juveniles are present, for incarcerated adults because no contact
between incarcerated adults and juveniles is possible when juveniles
are not present in the facility.
This revision, coupled with the requirement that facilities
establish separation by architectural means or by establishing policies
and procedures for time-phased use of common use areas within the
secure perimeter of an adult jail, lockup, or penal facility, or within
a juvenile detention facility that is collocated with any adult jail or
lockup, helps to insure the safety of detained and confined juveniles.
OJJDP hopes that this explanation will assist those concerned with
the proposed regulation to see that it is in no way intended to
evidence a change in view or policy regarding the importance of
maintaining the sight and sound separation of juveniles from adults in
secure facilities at all times.
3(a). Comment: Several respondents asserted that an adjudicated
delinquent should only be subject to transfer to an adult facility,
such as a prison, once he (or she) reaches the age of full criminal
responsibility, as provided by State law, in circumstances where the
delinquent has been afforded the full due process rights available to a
criminal offender in a criminal court proceeding (e.g. bail, trial by
jury, etc.).
Response: The JJDP Act separation requirement expressly applies to
juveniles who are alleged to be or found to be delinquent. An
individual who has reached the age of full criminal responsibility is
no longer considered a juvenile under the law of a State unless
expressly so provided and would not, therefore, fall under the
protection of the JJDP Act separation requirement. States have a
compelling interest in striking a balance between the goal of achieving
an adjudicated delinquent's well-being through treatment and physical
security and the goals of punishment and protection of the public by
lengthening the period of confinement in appropriate circumstances. The
State of Texas, for example, has instituted a determinate sentencing
system for certain violent offenders which initially places a juvenile
adjudicated delinquent under the jurisdiction of the Texas Youth
Commission and requires the committing court to re-evaluate the
delinquent's placement status when he/she reaches the age of 18. At
that time, the court can transfer the individual, who is now an adult,
to an adult penal institution if warranted. Alternatively, the
delinquent can be retained under the custody of the Texas Youth
Commission to age 21, at which time transfer is mandatory if he/she is
not released. Our review indicates that the caselaw is not definitive
on the issue of whether a failure to provide a juvenile with all the
due process rights of a criminal defendant in a delinquency proceeding
would prohibit such a transfer, on due process or other grounds, to an
adult jail or prison. The regulation continues to prohibit the pro
forma administrative transfer of an adjudicated delinquent who has
reached the age of full criminal responsibility to an adult jail or
prison. However, we believe it is consistent with the JJDP Act and
principles of federalism to allow States to authorize or require the
transfer of such delinquents under State law. While the due process
issue is appropriately a matter of State law and practice, those
jurisdictions contemplating passage of a law to authorize such
transfers should consider whether delinquents subject to incarceration
in the criminal justice system upon reaching the age of full criminal
responsibility should be afforded the same due process rights in the
original delinquency adjudication to which an adult in a criminal court
proceeding is entitled.
3(b). Comment: One respondent opined that where an adjudicated
delinquent is subject to transfer to an adult institution on or after
reaching the age of full criminal responsibility pursuant to State law,
assurances should be required that age-appropriate needs, such as
health, mental health, recreation, and education services will be made
available.
Response: Meeting the basic needs of transferred adjudicated
delinquents should be a priority for any jurisdiction's correctional
system. It is the responsibility of the State to provide for basic
needs and services for all prisoners, including juveniles and young
adults.
3(c). Comment: Several respondents felt that the transfer of
adjudicated delinquents to adult facilities once they reach the age of
full criminal responsibility defeats the purpose of a delinquency
adjudication.
Response: It is important to note that persons eligible for such a
transfer are limited to those who are no longer considered juveniles
under State law. With States increasingly focusing on the transfer of
serious and violent juvenile offenders to criminal court for
prosecution, this type of transfer scheme may result in fewer transfers
of juveniles to the criminal justice system through judicial waiver,
prosecutorial direct-file, and statutory exclusion of certain offenses
from the jurisdiction of the juvenile court. This will help to assure
that appropriate treatment services are provided by the juvenile
justice system while the individual is a juvenile and may serve to
protect juvenile offenders from older delinquents who pose a threat or
whose treatment needs cannot be met by the juvenile correctional
system.
3(d). Comment: Several respondents stated that the transfer of
adjudicated delinquents to adult facilities is not sound policy because
the influences of adult facilities are extremely negative and harmful
to young adults. These respondents further asserted that the risk of
assaults and violence in juvenile facilities increase when wards know
that they are going to be transferred to adult correctional facilities.
This ``split'' disposition has a destabilizing influence on juvenile
programs, according to one respondent. Several respondents stated that
any advances made by juveniles in
[[Page 65135]]
the juvenile justice system through available educational, vocational,
and therapeutic programs will be destroyed as a result of the transfer
to an adult facility.
Response: OJJDP strongly recommends that States enacting a transfer
law provide the transferred adjudicated delinquent with age appropriate
programs. However, this Office is neither aware of any studies
supporting the alleged harm from such transfers nor believes that a
juvenile who is able to remain in a juvenile correctional setting at
least until the age of full criminal responsibility is worse off than
the juvenile who is transferred to the criminal justice system for
felony prosecution and, upon conviction, is incarcerated in the
criminal justice system.
3(e). Comment: One respondent suggested that OJJDP recommend that
States provide separate facilities for delinquent offenders who have
reached the age of full criminal responsibility.
Response: OJJDP agrees that this option merits State consideration.
Such a system has been adopted in Colorado, where older serious and
violent delinquent offenders who have reached the age of full criminal
responsibility and juveniles transferred to criminal court pursuant to
State transfer laws, are placed in secure treatment facilities designed
and operated for youthful offenders.
3(f). Comment: One respondent suggested that the proposed
regulatory change is of great assistance to individual States looking
for appropriate methods to deal with the rising levels of violent
juvenile crime.
Response: The intent of this regulatory change is to provide States
with appropriate flexibility in dealing with serious and violent
delinquent offenders who require sentences that extend into adulthood.
4(a). Comment: Three questions were asked by one respondent
concerning the ``6 hour rule'' that allows an alleged delinquent to be
held in a secure custody status in an adult jail or lockup for up to 6
hours for purposes of processing (while maintaining sight and sound
separation from adult offenders). The proposed regulation would apply
the six hour hold exception to include a six hour period before and/or
after a court appearance (both pre and post adjudication).
(a) Is the 6 hour rule cumulative (i.e. before and after inclusive
of the 6 hours) or is it a separate 6 hours for before and after a
court appearance?
(b) Is the time limit affected by the status of the jail site, i.e.
MSA or nonMSA?
(c) Would the 24 hour rural exception continue to be permitted?
Response: (a) The 6 hour rule is not cumulative. A juvenile may be
held up to 6 hours before a court appearance and up to 6 hours after a
court appearance in an adult jail or lockup.
(b) The time limit is not affected by the status of the jail site;
(c) The 24-hour rural exception is not changed by the regulation.
The 24-hour rural (MSA) exception is a statutory exception that applies
to initial law enforcement custody, which may or may not result in an
initial court appearance. The new six-hour hold exception would apply
in either an MSA or nonMSA jurisdiction both before and/or after a
court appearance.
4(b). Comment: Several respondents suggested that the 6-hour rule
following a court appearance be expanded to 24 hours for rural
jurisdictions because of the expense of identifying and traveling to an
appropriate facility or of constructing a separate detention facility
in a small rural county or group of counties.
Response: The nonMSA, or rural exception, provides a 24-hour
period, exclusive of nonjudicial days (Saturdays, Sundays and
holidays), to detain an alleged delinquent, pending an initial court
appearance, if State law requires such an appearance within the 24-hour
period. Long distance and weather may extend this exception. The 6-hour
hold exception has historically applied when police are holding a
juvenile for investigation or processing a juvenile for purposes of
notifying parents, arranging release, or transporting to a juvenile
facility. Expansion of the 6-hour hold for pre- and post-court
appearances is designed to facilitate court appearances of juveniles
that require transportation. The statutory 24-hour nonMSA exception for
initial court appearances is premised on the need for time to plan the
placement/release of the juvenile. Subsequent court appearances can be
planned in advance, negating the need for an extended placement of the
juvenile in an adult jail or lockup.
4(c). Comment: One respondent found that the 6-hour exception was
too inflexible where no reasonable alternative juvenile placement was
available following arrest. The respondent suggested that a workable
``good faith'' rule be established.
Response: The six-hour exception gives law enforcement officials in
nonMSA jurisdictions the opportunity to make decisions about
investigating, processing, and/or transporting juveniles. States and
local units of government have found the 6-hour exception to be
sufficient where mechanisms are put in place to expedite the handling
of alleged delinquents who need to be detained for investigation or
processing in secure custody in an adult jail or lockup.
4(d). Comment: One respondent organization cited the Institute for
Judicial Administration/American Bar Association (IJA/ABA) Standards
which state that ``The interim detention of accused juveniles in any
facility or part thereof also used to detain adults is prohibited.'' In
support of its opposition to the proposed regulation, this respondent
noted that under conditions where juveniles are held with adults prior
to adjudication, ABA standards recommend a blanket prohibition against
the detention of juveniles with adult inmates prior to adjudication
under any circumstances.
Response: Congress considered the secure confinement of accused
delinquent juveniles for up to 6 hours in an urban jail or lockup to be
a reasonable outside time limit for processing purposes. This period of
time was considered to reflect a ``rule of reason'', as stated in the
House Committee report on the 1980 JJDP Act reauthorization. OJJDP is
not establishing any new policy by this regulation, but rather is
codifying in the regulation what has been the Office's monitoring
policy for 16 years, and extending it to pre- and post-court appearance
holds.
5(a). Comment: One respondent, while supporting the time-phasing of
common use areas of collocated facilities, requested clarification on
whether ``professional treatment staff'' can be ``shared'' between
juvenile and adult populations.
Response: In collocated facilities, professional care staff such as
medical, counseling, or education services continue to be permitted to
serve both adult and juvenile residents, although not at the same time.
5(b) Comment: One respondent asserted that elimination of the
requirement for OJJDP's concurrence in State-approved collocated
facilities weakens the Office's enforcement capabilities.
Response: States will continue to have the responsibility to
approve and monitor these facilities. OJJDP will continue to review the
monitoring practices of States, as well as provide training and
technical assistance. Further, the criteria for the establishment of
such facilities are clearly set forth in Sec. 31.303(e)(3) of the
regulation.
5(c). Comment: Another respondent felt that the regulation should
more
[[Page 65136]]
clearly reflect that collocated facilities are not prohibited and that
these facilities are permissible if established in accordance with the
regulatory criteria set forth to establish that a collocated facility
is a separate and distinct facility from the adult jail or lockup with
which it is collocated.
Response: OJJDP's proposal to eliminate the requirement for its
concurrence in State approval of a collocated facility, and the
elimination of a needs-based analysis, should make it clear that the
establishment of collocated facilities is not prohibited. States may
approve collocated facilities in accordance with State law and policy
as long as each such facility meets the criteria set forth in
Sec. 31.303(e)(3) of the regulation.
5(d). Comment: Another respondent opined that the needs-based
analysis and prohibition of time-phased use should not be eliminated.
Response: A properly constructed and operated collocated facility
that meets the criteria set forth in Sec. 31.303(e)(3) does not create
conditions where the health and safety of juveniles would be
jeopardized. Time-phased use of nonresidential areas allows for
efficient use of these resources which, otherwise, might not be
available to the juvenile population. Time-phased use, if properly
implemented, would not result in any contact between juveniles and
adults. Further, States are encouraged to conduct their own needs-based
analysis. OJJDP technical assistance will remain available, upon State
request, for this purpose.
6(a). Comment: One commentor, in response to the 24 hour detention
exception for status and nonoffenders, stated that nonoffenders should
not be placed in detention facilities. Limited exceptions should be
permitted in the event of a well documented need. In this way,
detention of nonoffenders will not become a pattern or practice.
Response: OJJDP agrees that the detention of nonoffenders, such as
dependent, neglected, or abused children, should not become a pattern
or practice. This authority should be used to meet emergency needs
only. States are encouraged to provide for the return of nonoffenders
to their families or to appropriate shelter care as soon as possible.
6(b). Comment: Another respondent considers the placement of
nonoffenders in secure detention to be a retrenchment of longstanding
national policy in opposition to such a placement.
Response: OJJDP Formula Grants program policy and regulation have
authorized the limited and temporary placement of nonoffenders in
secure detention facilities since 1975. When either status offenders or
nonoffenders are placed in such facilities, Section 223(a)(12)(B)
encourages States to place the status offender or nonoffender in
facilities which are the least restrictive alternative appropriate to
the needs of the child and the community. The provision does not change
established policy and is intended to provide adequate time to arrange
for appropriate placement prior to or following an initial court
appearance. Because the current statutory definition of ``secure
detention facility'' includes dedicated facilities for nonoffenders,
removal of the 24 hour hold exception's applicability to nonoffenders
would also prohibit the secure holding of nonoffender juveniles in
dedicated facilities. This issue needs to be addressed statutorily
before OJJDP can propose a change to the 24 hour hold exception's
applicability to nonoffenders.
6(c). Comment: One respondent believes that placement of status
offenders with children accused of delinquency can stigmatize them as
delinquent and that the proposed regulation dilutes OJJDP's strong
regulatory support for the deinstitutionalization of status offender
and nonoffender juveniles. This respondent supports the placement of
status offenders in secure residential facilities for up to six hours
and only when law enforcement is unable to contact a parent, custodian,
or relative, unreasonable distance exists, the juvenile refuses to be
taken home, or law enforcement is otherwise unable to make arrangements
for the safe release of the juvenile.
Response: OJJDP has, since 1975, authorized the secure short-term
detention of status offenders and nonoffenders in juvenile detention
facilities. While blanket use of this authority without regard to the
facts and circumstances of each juvenile taken into custody would be a
poor policy, State and local governments should determine the specific
law and policy that will govern the use of this authority.
7(a). Comment: Two respondents commented regarding revision of
Sec. 31.303(f)(3)(vi), authorizing the use of multi-disciplinary teams
to make recommendations on the use of secure confinement for a valid
court order violator, contending that such teams are an important tool
for the valid court order process and that the language should not be
deleted. Another commented that language should be added to clarify
that multi-disciplinary teams are only a suggested way of meeting the
requirement for an independent review team and that court or law
enforcement personnel can still serve on such a team.
Response: Multi-disciplinary teams may still be utilized for the
purpose of preparing and submitting a written report to a judge
considering an order to place a status offender in a secure facility
for violation of a valid court order.
The suggestion of multi-disciplinary teams in the existing
regulation was meant to be an example of one mechanism that would
fulfill the statutory requirement. However, this apparently created the
impression that only multi-disciplinary teams could be utilized. In
fact, the review could be conducted by an individual, agency, or team
representing a noncourt or law enforcement agency.
7(b). Comment: One comment opposed the deletion of language
requiring that secure confinement represent the least restrictive
alternative ``appropriate to the needs of the juvenile and the
community.'' This respondent felt that removal of this language lessens
the judge's overall responsibility to ensure the appropriateness of the
disposition in light of other available placement.
Response: Section 103(16)(C)(iii) of the JJDP Act and
Sec. 31.303(f)(3)(vi) of the regulation require that a disposition of
secure confinement must consider all alternative dispositions
(including treatment) to placement in a secure detention or secure
correctional facility. Removal of the referenced language does not
diminish the responsibility of the court to consider alternatives to
secure confinement. However, the referenced nonstatutory language is
vague and does not provide meaningful guidance.
7(c). Comment: Another comment requested clarification of why the
words ``of a status offender'' were added to the language ``In entering
any order that directs or authorizes the placement of a status offender
in a secure facility, the judge presiding over an initial probable
cause hearing or violation hearing must. * * *'' in Section
31.303(f)(3)(vi).
Response: The change was intended to underscore that the valid
court order (VCO) provision applies solely to status offenders. A
nonoffender may not be placed in secure confinement for any length of
time for violation of a court order.
7(d). Comment: One respondent recommended the deletion of the VCO
requirement for an independent review and determination of the reasons
for the juvenile's behavior. This respondent
[[Page 65137]]
insisted that the first was difficult to monitor and the latter
impossible to determine, asking ``How can the court ascertain the
reasons for the juvenile's behavior?''. Another respondent commented
that the VCO provision should be a recommendation rather than a
requirement.
Response: The use of the independent review standard under the
valid court order exception is statutorily established in Section
223(a)(12)(A) and the term ``valid court order'' is defined in Section
103(16) of the JJDP Act. Therefore, they cannot be deleted or modified
by regulation.
8. Comment: Comments were received both in favor of and opposed to
the proposal to eliminate the reporting requirement for each use of the
ground/distance and weather exceptions to the jail and lockup removal
exception. Those opposed to the change are concerned that it will
encourage abuses of the rule and lead to more youth in adult jails and
lockups, in violation of the statute.
Response: Enforcement of this provision will continue to be a State
responsibility that is subject to on'site monitoring and verification
by OJJDP during compliance monitoring visits to States utilizing this
jail and lockup removal exception. The changes streamline the process
and remove an unnecessary administrative burden.
9(a). Comment: Several respondents felt that the ``relaxation'' of
State reporting and monitoring requirements related to the separation
requirement is ``dangerous'' and could cause States to slide into
noncompliance. States might view this as an opportunity to relax their
oversight responsibility.
Response: It is not OJJDP's intent to encourage States to weaken
their commitment to the core requirements of the JJDP Act. However,
OJJDP believes that isolated violations of the separation requirement
that do not represent a pattern or practice should not jeopardize a
State's ability to access federal funds. OJJDP remains fully committed
to the enforcement of Section 223(a)(13) of the JJDP Act requiring the
separation of juvenile delinquents from adult offenders.
9(b). Comment: One respondent commented that the existence of state
laws, regulations, or court rules is the only mechanism that provides
any true assurance that future violations of the separation requirement
will not occur in a given jurisdiction. Another felt that eliminating
this requirement will mean that States will abandon their efforts to
obtain conforming laws, regulations, and court rules in order to
enforce the separation core requirement. A third respondent felt that
all States should have a policy that mirrors the JJDP Act separation
requirement.
Response: OJJDP encourages States to retain existing laws,
regulations, and court rules mirroring the separation requirement.
OJJDP also encourages States to utilize other effective enforcement
tools including: training and technical assistance workshops; on-site
training for law enforcement and adult jail and lockup personnel; and
development of alternatives to incarceration.
9(c). Comment: One commentor suggested that until such time as
OJJDP has unlimited resources, there is no way that the existence of a
``pattern or practice'' of noncompliance can be monitored.
Response: Section 223(a)(15) requires States to ``provide for an
adequate system of monitoring jails, detention facilities, and
nonsecure facilities to ensure that the requirements of paragraph
(12)(A), paragraph (13) and paragraph (14) are met, and for annual
reporting of the results of such monitoring to the Administrator; * *
*''. It is OJJDP's position that State monitoring systems successfully
identify the vast majority of violations and State monitoring reports
can be used to identify whether reported violations establish a pattern
or practice of separation violations in the State.
9(d). Comment: A single separation standard applicable to all
States for measuring compliance based on de minimis violations that do
not indicate a pattern or practice is a fair standard, according to one
respondent. Moreover, it is less cumbersome than the present compliance
requirement. Another respondent felt that it is clearly appropriate to
find overall compliance within the separation requirement even if
individual violations have occurred, as long as no pattern or practice
exists.
Response: It is OJJDP's intent to treat all States in a fair and
equitable manner. In addressing violations of Section 223(a)(13) of the
JJDP Act in terms of a pattern or practice, OJJDP's across the board
approach is equitable to the States, providing a substantive de minimis
standard for the separation requirement.
10(a). Comment: A commentor noted that the addition of the word
``programmatically'' in Section 31.303(j) to clarify that ``the purpose
of the statute and regulation is to encourage States to address
programmatically.* * *'' the disproportionate minority confinement
(DMC) core requirement (Section 223(a)(23)) will limit the focus of the
States and move them away from alternative ways to address the over-
representation of minorities in secure facilities.
Response: OJJDP notes that the addition of the word
``programmatically'' does not restrict a State's options for addressing
DMC. States are encouraged to examine all aspects of DMC and address
any features of its juvenile or criminal justice systems that may
contribute to DMC as identified by the State.
10(b). Comment: Another respondent stated that the regulation needs
to reflect a broader examination of minority over-representation. Since
1992, States have spent considerable time and dollars reviewing their
juvenile justice systems in their entirety. The clarification to the
DMC core requirement provides that States should address
``programmatically'' any feature of its justice system that accounts
for the disproportionate detention or confinement of minority
juveniles. However, the entire system should be analyzed, not just
juvenile detention or confinement.
Response: The regulation provides for a broad examination of the
DMC issue, including all decision points in the juvenile justice
system, and encourages States to address ``any feature of its justice
system'' that accounts for DMC and not just those that ``may account
for the disproportionate detention or confinement.'' The latter
language is taken verbatim from the statutory language of Section
223(a)(23) of the JJDP Act.
Executive Order 12866
This final rule is not a ``significant regulatory action'' for
purposes of Executive Order 12866 because it does not result in: (1) an
annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or state, local or tribal governments or communities; (2)
create a serious inconsistency or otherwise interfere with action taken
or planned by another agency; (3) materially alter the budgetary impact
of entitlement, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; and (4) does not raise novel legal
or policy issues arising out of legal mandates, the President's
priorities or the principles of Executive Order No. 12866, and
accordingly this rule has not been reviewed by the Office of Management
of Budget. This regulation has been drafted and reviewed in accordance
with Executive Order 12866, Section 1(b), Principles of Regulation.
[[Page 65138]]
Regulatory Flexibility Act
This final rule, if promulgated, will not have a ``significant''
economic impact on a substantial number of small ``entities'' as
defined by the Regulatory Flexibility Act. This action is intended to
relieve existing requirements in the Formula Grants program and to
clarify other provisions so as to promote compliance with its
provisions by States participating in the program.
Paperwork Reduction Act
No collections of information requirements are contained in or
affected by this regulation pursuant to the Paperwork Reduction Act,
codified at 44 U.S.C. 3504(H).
Intergovernmental Review of Federal Programs
In accordance with Executive Order 12372 and the Department of
Justice's implementing regulation 28 CFR Part 30, States must submit
Formula Grant Program applications to the State ``Single Point of
Contact,'' if one exists. The State may take up to 60 days from the
application date to comment on the application.
Lists of Subjects in 28 CFR Part 31
Grant programs--law, Juvenile delinquency, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble 28 CFR Part 31 is amended
as follows:
PART 31--[AMENDED]
1. The authority citation for Part 31 continues to read as follows:
Authority: 42 U.S.C. 5601 et seq.
2. Section 31.303 is amended to read as follows:
a. Paragraphs (d)(1)(i) and (d)(1)(v) are revised;
b. Paragraphs (e)(2) and (e)(3) are revised;
c. Paragraphs (f)(2), (f)(3)(vi), (f)(4)(vi), (f)(5)(i)(C),
(f)(5)(iii), (f)(5)(iv), (f)(6)(i), and (f)(6)(ii) are revised;
d. Paragraph (f)(4)(iv) is amended by removing ``and'' at the end
of the paragraph and paragraph (f)(4)(v) is amended by removing the
period at the end of the paragraph and adding ``; and'' in its place;
and
e. Paragraph (j) introductory text is amended by adding two
sentences following the second sentence.
The additions and revisions read as follows:
Sec. 31.303 Substantive requirements.
* * * * *
(d) * * *
(1) * * *
(i) Separation. Describe its plan and procedure, covering the
three-year planning cycle, for assuring that the requirements of this
section are met. The term ``contact'' includes any physical or
sustained sight or sound contact between juvenile offenders in a secure
custody status and incarcerated adults, including inmate trustees. A
juvenile offender in a secure custody status is one who is physically
detained or confined in a locked room or other area set aside or used
for the specific purpose of securely detaining persons who are in law
enforcement custody. Secure detention or confinement may result either
from being placed in such a room or area and/or from being physically
secured to a cuffing rail or other stationary object. 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. Separation must be accomplished architecturally or
through policies and procedures in all secure areas of the facility
which include, but are not limited to, such areas as admissions,
sleeping, and shower and toilet areas. Brief and inadvertent or
accidental contact between juvenile offenders in a secure custody
status and incarcerated adults in secure areas of a facility that are
not dedicated to use by juvenile offenders and which are
nonresidential, which may include dining, recreational, educational,
vocational, health care, sally ports or other entry areas, and
passageways (hallways), would not require a facility or the State to
document or report such contact as a violation. However, any contact in
a dedicated juvenile area, including any residential area of a secure
facility, between juveniles in a secure custody status and incarcerated
adults would be a reportable violation.
* * * * *
(v) Assure that adjudicated delinquents are not reclassified
administratively and transferred to an adult (criminal) correctional
authority to avoid the intent of separating juveniles from adult
criminals in jails or correctional facilities. A State is not
prohibited from placing or transferring an alleged or adjudicated
delinquent who reaches the State's age of full criminal responsibility
to an adult facility when required or authorized by State law. However,
the administrative transfer, without statutory direction or
authorization, of a juvenile offender to an adult correctional
authority, or a transfer within a mixed juvenile and adult facility for
placement with adult criminals, either before or after a juvenile
reaches the age of full criminal responsibility, is prohibited. A State
is also precluded from transferring adult offenders to a juvenile
correctional authority for placement in a juvenile facility. This
neither prohibits nor restricts the waiver or transfer of a juvenile to
criminal court for prosecution, in accordance with State law, for a
criminal felony violation, nor the detention or confinement of a waived
or transferred criminal felony violator in an adult facility.
* * * * *
(e) * * *
(2) Describe the barriers that a State faces in removing all
juveniles from adult jails and lockups. This requirement excepts only
those alleged or adjudicated juvenile delinquents placed in a jail or a
lockup for up to six hours from the time they enter a secure custody
status or immediately before or after a court appearance, those
juveniles formally waived or transferred to criminal court and against
whom criminal felony charges have been filed, or juveniles over whom a
criminal court has original or concurrent jurisdiction and such court's
jurisdiction has been invoked through the filing of criminal felony
charges.
(3) Collocated facilities. (i) Determine whether or not a facility
in which juveniles are detained or confined is an adult jail or lockup.
The JJDP Act prohibits the secure custody of juveniles in adult jails
and lockups, except as otherwise provided under the Act and
implementing OJJDP regulations. Juvenile facilities collocated with
adult facilities are considered adult jails or lockups absent
compliance with criteria established in paragraphs (e)(3)(i)(C)(1)
through (4) of this section.
(A) A collocated facility is a juvenile facility located in the
same building as an adult jail or lockup, or is part of a related
complex of buildings located on the same grounds as an adult jail or
lockup. A complex of buildings is considered ``related'' when it shares
physical features such as walls and fences, or services beyond
mechanical services (heating, air conditioning, water and sewer), or
the specialized services that are allowable under paragraph
(e)(3)(i)(C)(3) of this section.
(B) The State must determine whether a collocated facility
qualifies as a separate juvenile detention facility under the four
criteria set forth in paragraphs (e)(3)(i)(C) (1) through (4) of this
section for the purpose of monitoring compliance with section 223(a)
(12)(A), (13) and (14) of the JJDP Act.
[[Page 65139]]
(C) Each of the following four criteria must be met in order to
ensure the requisite separateness of a juvenile detention facility that
is collocated with an adult jail or lockup:
(1) Separation between juveniles and adults such that there could
be no sustained sight or sound contact between juveniles and
incarcerated adults in the facility. Separation can be achieved
architecturally or through time-phasing of common use nonresidential
areas; and
(2) Separate juvenile and adult programs, including recreation,
education, vocation, counseling, dining, sleeping, and general living
activities. There must be an independent and comprehensive operational
plan for the juvenile detention facility which provides for a full
range of separate program services. No program activities may be shared
by juveniles and incarcerated adults. Time-phasing of common use
nonresidential areas is permissible to conduct program activities.
Equipment and other resources may be used by both populations subject
to security concerns; and
(3) Separate staff for the juvenile and adult populations,
including management, security, and direct care staff. Staff providing
specialized services (medical care, food service, laundry, maintenance
and engineering, etc.) who are not normally in contact with detainees,
or whose infrequent contacts occur under conditions of separation of
juveniles and adults, can serve both populations (subject to State
standards or licensing requirements). The day to day management,
security and direct care functions of the juvenile detention center
must be vested in a totally separate staff, dedicated solely to the
juvenile population within the collocated facilities; and
(4) In States that have established standards or licensing
requirements for juvenile detention facilities, the juvenile facility
must meet the standards (on the same basis as a free-standing juvenile
detention center) and be licensed as appropriate. If there are no State
standards or licensing requirements, OJJDP encourages States to
establish administrative requirements that authorize the State to
review the facility's physical plant, staffing patterns, and programs
in order to approve the collocated facility based on prevailing
national juvenile detention standards.
(ii) The State must determine that the four criteria are fully met.
It is incumbent upon the State to make the determination through an on-
site facility (or full construction and operations plan) review and,
through the exercise of its oversight responsibility, to ensure that
the separate character of the juvenile detention facility is maintained
by continuing to fully meet the four criteria set forth in paragraphs
(e)(3)(i)(C) (1) through (4) of this section.
(iii) Collocated juvenile detention facilities approved by the
State and concurred with by OJJDP before December 10, 1996 may be
reviewed by the State against the regulatory criteria and OJJDP
policies in effect at the time of the initial approval and concurrence
or against the regulatory criteria set forth herein, as the State
determines. Facilities approved on or after the effective date of this
regulation shall be reviewed against the regulatory criteria set forth
herein. All collocated facilities are subject to the separate staff
requirement established by the 1992 Amendments to the JJDP Act, and set
forth in paragraph (e)(3)(i)(C)(3) of this section.
(iv) An annual on-site review of the facility must be conducted by
the compliance monitoring staff person(s) representing or employed by
the State agency administering the JJDP Act Formula Grants Program. The
purpose of the annual review is to determine if compliance with the
criteria set forth in paragraphs (e)(3)(i)(C) (1) through (4) of this
section is being maintained.
* * * * *
(f) * * *
* * * * *
(2) For the purpose of monitoring for compliance with section
223(a)(12)(A) of the Act, a secure detention or correctional facility
is any secure public or private facility used for the lawful custody of
accused or adjudicated juvenile offenders or nonoffenders, or used for
the lawful custody of accused or convicted adult criminal offenders.
Accused status offenders or nonoffenders in lawful custody can be held
in a secure juvenile detention facility for up to twenty-four hours,
exclusive of weekends and holidays, prior to an initial court
appearance and for an additional twenty-four hours, exclusive of
weekends and holidays, following an initial court appearance.
(3) * * *
(vi) In entering any order that directs or authorizes the placement
of a status offender in a secure facility, the judge presiding over an
initial probable cause hearing or violation hearing must determine that
all the elements of a valid court order (paragraphs (f)(3) (i), (ii)
and (iii) of this section) and the applicable due process rights
(paragraph (f)(3)(v) of this section) were afforded the juvenile and,
in the case of a violation hearing, the judge must obtain and review a
written report that: reviews the behavior of the juvenile and the
circumstances under which the juvenile was brought before the court and
made subject to such order; determines the reasons for the juvenile's
behavior; and determines whether all dispositions other than secure
confinement have been exhausted or are clearly inappropriate. This
report must be prepared and submitted by an appropriate public agency
(other than a court or law enforcement agency).
* * * * *
(4) * * *
(vi) Pursuant to section 223(a)(14) of the JJDP Act, the nonMSA
(low population density) exception to the jail and lockup removal
requirement as described in paragraphs (f)(4) (i) through (v) of this
section shall remain in effect through 1997, and shall allow for secure
custody beyond the twenty-four hour period described in paragraph
(f)(4)(i) of this section when the facility is located where conditions
of distance to be traveled or the lack of highway, road, or other
ground transportation do not allow for court appearances within twenty-
four hours, so that a brief (not to exceed an additional forty-eight
hours) delay is excusable; or the facility is located where conditions
of safety exist (such as severely adverse, life-threatening weather
conditions that do not allow for reasonably safe travel), in which case
the time for an appearance may be delayed until twenty-four hours after
the time that such conditions allow for reasonably safe travel. States
may use these additional statutory allowances only where the precedent
requirements set forth in paragraphs (f)(4) (i) through (v) of this
section have been complied with. This may necessitate statutory or
judicial (court rule or opinion) relief within the State from the
twenty-four hour initial court appearance standard required by
paragraph (f)(4)(i) of this section.
(5) * * *
(i) * * *
(C) The total number of accused status offenders and nonoffenders,
including out-of-State runaways and Federal wards, held in any secure
detention or correctional facility for longer than twenty-four hours
(not including weekends or holidays), excluding those held pursuant to
the valid court order provision as set forth in paragraph (f)(3) of
this section or pursuant to section 922(x) of Title 18, United States
Code (which prohibits the possession of a handgun by a juvenile), or a
similar State law. A juvenile who violates this statute, or a similar
state law, is
[[Page 65140]]
excepted from the deinstitutionalization of status offenders
requirement;
* * * * *
(iii) To demonstrate the extent of compliance with section
223(a)(13) of the JJDP Act, the report must include, at a minimum, the
following information for the current reporting period:
(A) Dates covered by the current reporting period;
(B) The total number of facilities used to detain or confine both
juvenile offenders and adult criminal offenders during the past 12
months and the number inspected on-site;
(C) The total number of facilities used for secure detention and
confinement of both juvenile offenders and adult criminal offenders
which did not provide sight and sound separation;
(D) The total number of juvenile offenders and nonoffenders not
separated from adult criminal offenders in facilities used for the
secure detention and confinement of both juveniles and adults;
(E) The total number of State approved juvenile detention centers
located within the same building or on the same grounds as an adult
jail or lockup, including a list of such facilities;
(F) The total number of juveniles detained in State approved
collocated facilities that were not separated from the management,
security or direct care staff of the adult jail or lockup;
(G) The total number of juvenile detention centers located within
the same building or on the same grounds as an adult jail or lockup
that have not been approved by the State, including a list of such
facilities; and
(H) The total number of juveniles detained in collocated facilities
not approved by the State that were not sight and sound separated from
adult criminal offenders.
(iv) To demonstrate the extent of compliance with section
223(a)(14) of the JJDP Act, the report must include, at a minimum, the
following information for the current reporting period:
(A) Dates covered by the current reporting period;
(B) The total number of adult jails in the State AND the number
inspected on-site;
(C) The total number of adult lockups in the State AND the number
inspected on-site;
(D) The total number of adult jails holding juveniles during the
past twelve months;
(E) The total number of adult lockups holding juveniles during the
past twelve months;
(F) The total number of accused juvenile criminal-type offenders
held securely in adult jails, lockups, and unapproved collocated
facilities in excess of six hours, including those held pursuant to the
``removal exception'' as set forth in paragraph (f)(4) of this section;
(G) The total number of accused juvenile criminal-type offenders
held securely in adult jails, lockups and unapproved collocated
facilities for less than six hours for purposes other than
identification, investigations, processing, release to parent(s),
transfer to court, or transfer to a juvenile facility following initial
custody;
(H) The total number of adjudicated juvenile criminal-type
offenders held securely in adult jails or lockups and unapproved
collocated facilities in excess of six hours prior to or following a
court appearance or for any length of time not related to a court
appearance;
(I) The total number of accused and adjudicated status offenders
(including valid court order violators) and nonoffenders held securely
in adult jails, lockups and unapproved collocated facilities for any
length of time;
(J) The total number of adult jails, lockups, and unapproved
collocated facilities in areas meeting the ``removal exception'' as
noted in paragraph (f)(4) of this section, including a list of such
facilities and the county or jurisdiction in which each is located;
(K) The total number of juveniles accused of a criminal-type
offense who were held in excess of six hours but less than 24 hours in
adult jails, lockups and unapproved collocated facilities pursuant to
the ``removal exception'' as set forth in paragraph (f)(4) of this
section;
(L) The total number of juveniles accused of a criminal-type
offense who were held in excess of 24 hours, but not more than an
additional 48 hours, in adult jails, lockups and unapproved collocated
facilities pursuant to the ``removal exception'' as noted in paragraph
(f)(4) of this section, due to conditions of distance or lack of ground
transportation; and
(M) The total number of juveniles accused of a criminal-type
offense who were held in excess of 24 hours, but not more than an
additional 24 hours after the time such conditions as adverse weather
allow for reasonably safe travel, in adult jails, lockups and
unapproved collocated facilities, in areas meeting the ``removal
exception'' as noted in paragraph (f)(4) of this section.
(6) * * *
(i) Full compliance with section 223(a)(12)(A) is achieved when a
State has removed 100 percent of status offenders and nonoffenders from
secure detention and correctional facilities or can demonstrate full
compliance with de minimis exceptions pursuant to the policy criteria
contained in the Federal Register of January 9, 1981 (copies are
available from the Office of General Counsel, Office of Justice
Programs, 633 Indiana Ave., N.W., Washington, D.C. 20531).
(ii) Compliance with section 223(a)(13) has been achieved when a
State can demonstrate that:
(A) The last submitted monitoring report, covering a full 12 months
of data, demonstrates that no juveniles were incarcerated in
circumstances that were in violation of section 223(a)(13); or
(B)(1) The instances of noncompliance reported in the last
submitted monthly report do not indicate a pattern or practice but
rather constitute isolated instances; and
(2)(i) Where all instances of noncompliance reported were in
violation of or departure from State law, rule, or policy that clearly
prohibits the incarceration of all juvenile offenders in circumstances
that would be in violation of Section 223(a)(13), existing enforcement
mechanisms are such that the instances of noncompliance are unlikely to
recur in the future; or
(ii) An acceptable plan has been developed to eliminate the
noncompliant incidents.
* * * * *
(j) * * * The purpose of the statute and the regulation in this
part is to encourage States to address, programmatically, any features
of its justice system, and related laws and policies, that may account
for the disproportionate detention or confinement of minority juveniles
in secure detention facilities, secure correctional facilities, jails,
and lockups. The disproportionate minority confinement core requirement
neither establishes nor requires numerical standards or quotas in order
for a State to achieve or maintain compliance. * * *
* * * * *
Dated: December 5, 1996.
Shay Bilchik,
Administrator, Office of Juvenile Justice and Delinquency Prevention.
[FR Doc. 96-31316 Filed 12-9-96; 8:45 am]
BILLING CODE 4410-18-P
