‘Swift consequences.’ Will Gov. Kelly sign bill that could put more KS youth behind bars?

A juvenile offender in Kansas who misses a meeting or smokes a cigarette in violation of their probation order could soon be incarcerated for anywhere from 24 hours to 15 days for the offense.

The provision is part of a larger package approved last week by the Kansas Legislature approved with bipartisan support to modify the state’s juvenile justice system. The bill now heads to Democratic Gov. Laura Kelly, who has not indicated how she’ll act on the measure.

While the bill makes several changes that have broad support, it also begins to roll back strict limits on incarceration of youth that the Legislature established in 2016.

The aim of the policy is to target youth who fall in the middle ground of the juvenile justice system between low-level crimes and high-level offenses that require long-term incarceration. These young offenders are often placed on probation and required to complete evidence-based programming.

But proponents of the bill say these kids are too easily circumventing their sentences and law enforcement lacks the tools to keep them in line.

On the Senate floor, Sen. Kellie Warren, a Leawood Republican who chairs the Senate Judiciary Committee, spoke of foster children threatening foster parents and other children.

“Swift and certain consequences for juveniles is what makes an impact on them,” she said.

But critics warn the proposed solution will simply traumatize Kansas children, without providing any meaningful treatment to get them on the right path.

“It relies on the old logic that some kids just need to learn a lesson and tossing them in jail is gonna straighten them out. And that just isn’t true for the vast, vast, vast majority of kids,” said Mike Fonkert, campaign director for Kansas Appleseed, a progressive advocacy group that has urged Kelly to veto the bill.

“It actually traumatizes the hell out of them,” he added.

Kelly’s office said in a statement the governor would evaluate the bill when it reaches her desk.

Lack of consequences?

The bill, HB 2021, passed the House 119-1 last month but it only narrowly cleared the Senate with a 22-16 vote with seven Republicans and nine Democrats voting “no.” If Kelly, a Democrat, vetoes the policy, lawmakers will not be able to attempt an override because they ended the annual legislative session last month.

The bill addressed a variety of issues. It requires risk and needs assessment for children in the child welfare system exhibiting warning signs of criminal behavior, mandates collaboration between the Department for Children and Families and the Department of Corrections and expands allowable uses for a constantly growing state fund reserved for evidence based programs serving youth in the system.

The bill was presented as a solution for youth who may fall in the cracks and to remedy a growing problem of children with behavioral issues being funneled into the foster system.

The most controversial piece, however, requires the immediate notification of a judge if a juvenile offender violates the terms of their probation. It then allows that judge to sentence the youth to 24 hours in detention for a first violation, 48 hours for a second violation and up to 15 days for a third violation. Over the course of a child’s case, however, the law retains the existing 45-day limit for detention.

The detention can only be ordered for a child who shows signs of escalating physical violence, aggression, weapons, damage to property or use of life-threatening substances.

Once young defendants are incarcerated, the bill requires they receive a risk and needs assessment within 72 hours and that a case plan be developed for them in the next 48 hours.

Youth detention dropped dramatically in Kansas following the passage of reforms in 2016. As of 2021, just 14% of juvenile offenders were placed in detention, according to the Kansas Juvenile Justice Oversight Committee.

Rep. Boog Highberger, a Lawrence Democrat who supported the 2016 law and the bill last week, said he was nervous about allowing for more incarceration but hoped the bill had limited the circumstances enough that it would have minimal impact on Kansas youth.

Quick action, he said, was necessary because of mounting anecdotal evidence and frustration among those working with juvenile offenders.

“What I’m hearing from people is that there’s some youth that are hard to control now because they don’t think there are any consequences,” Highberger said.

Prosecutors and law enforcement testified to the Legislature that they needed broader incarceration options for youth that were causing consistent problems at home. They argued judges have been inclined to move these youth into the foster system and remove them from their current environment.

The Sedgwick County Commission said in written testimony that the 2016 law “strips prosecutors and judges from doling out any meaningful consequences and protects these youth from the consequences of their criminal or violent actions.”

Prosecutors and others arguing for more jail time offered no evidence it would result in improved behavior from the youth.

Data suggests it might do the opposite, isolating the youth and increasing the likelihood of recidivism.

According to a 2017 study from the American Academy of Pediatrics incarceration among adolescents and young adults was associated with worse physical and mental health in adulthood. A 2011 Brown University study found those incarcerated in their youth were more likely to be repeat offenders as adults.

“The real data is the longer you incarcerate a kid the more angry they become. The more they start acting out,” Sen. Molly Baumgardner, a Louisburg Republican, said during a debate on the Senate floor.

Aileen Berquist, a lobbyist for the ACLU of Kansas said the policy — which grants wide discretion to judges — is likely to hold a disproportionate impact on children of color, who are already more likely to face harsh punishments than their white counterparts.

“It’s going to lead to more children behind bars and more children of color behind bars,” she said.

A 2019 study from the ACLU of Kansas found Black and Brown Kansans were 1.56 times more likely to be arrested than white residents.

Rep. Stephen Owens, a Hesston Republican and Chair of the House Corrections and Juvenile Justice Committee, said the bill includes guardrails - treatment requirements and case restrictions - to prevent over incarceration of youth and ensure the youth who are incarcerated get treatment.

“We’re trying really hard to find that balance because we also recognize that there are times where a level of detention is a good thing,” he said.

Whether Kelly signs the bill or not Kansas’ Juvenile Justice Oversight Committee is scheduled to spend the summer studying its proposals and determining next steps for juvenile justice reform in the state.

Owens said the bill could be revised next year based on the outcome of that study, and that he viewed it as the beginning of the conversation not the end.

Fonkert, with Kansas Appleseed, said he held broad concerns over the lack of detail and funding in several portions of the bill. While his organization is urging Kelly’s veto, he said the group is eager to continue the conversation.

“The skeleton is there,” he said. “We can take this and make it a really good change for KS kids. It’s just not there yet.”