W.Va. Remade Its Juvenile Justice System, But Stopped Measuring If The Changes Were Helping Kids

This story was originally published by Mountain State Spotlight.

Geard Mitchell remembers the day he turned 17. He was wearing an orange jumpsuit, sitting inside a Boone County juvenile correctional facility. The staff of the Donald R. Kuhn Juvenile Center didn’t put on much of a celebration, he recalled. No family or friends called or visited. The only sign of the milestone was a white-frosted cake from the center’s cooks.

“[That cake] was the only good thing about that day,” he said.

Now 19, Mitchell lives in Brooklyn with his aunt and cousin. He spent half of his childhood in West Virginia, and for seven of those years he was in state custody. Sometimes that meant foster homes, after he was removed from his aunt’s home in Boone County. But sometimes that meant places like the Kuhn Juvenile Center.

Courtesy Geard Mitchell

/

Every year, several hundred West Virginia kids like Mitchell are sent to places like this, ranging from group homes to boarding schools to maximum-security jails. In Mitchell’s case, it was a last resort: he had some previous low-level offenses and had, according to a judge, been improperly labeled as a sex offender despite never being charged as such. Because of this, the state was unable to find Mitchell a foster home placement, according to a lawsuit filed on behalf of him and other West Virginia foster kids.

In 2015, the year Mitchell began bouncing between foster care placements and juvenile correction facilities, West Virginia kids were confined at the highest rate in the nation: 330 of every 100,000 children. This was an emergency, lawmakers were told, and then-Gov. Earl Ray Tomblin convened a task force to reform the state’s juvenile justice system.

“We must do more to keep our kids out of the courtroom and in the classroom,” Tomblin said in his 2015 State of the State address.

Shortly after, lawmakers unanimously approved a bill implementing many of the task force’s recommendations.

But six years after these reforms, their legacy is mixed. Some of them, including procedural changes in the courtroom and new alternatives to incarceration, have reduced juvenile confinement rates by about 12% from 2015 to 2019, according to the national Office of Juvenile Justice and Delinquency Prevention. According to that same office, West Virginia still confines more kids per capita than almost any other state.

But system-wide oversight and an effort to collect and analyze key metrics — ingredients that experts say are essential to transforming the system — have fallen apart. And there’s been little action on the part of Gov. Jim Justice to fix them.

“At the end of the day, the Governor’s Office has priorities,” said Joey Garcia, who once chaired the juvenile justice oversight committee and now represents Marion County in the state House of Delegates. “Governor’s offices are some of the most powerful offices in the United States, and they have the ability to push ideas to the forefront and use the legislative process to create reforms. And so the fact that [Justice’s office] hasn’t done that, and hasn’t seen this as an important enough issue, that’s something [Justice’s office] has to answer to.”

Thousands of West Virginia children are affected by the juvenile justice system every year, but without data or oversight, the possibilities of drastic improvements to the system are limited.

Moving in the wrong direction

In 2014, it was clear West Virginia and its kids were bucking national trends and moving in the wrong direction. Nationally, there was a 35% decrease in the number of children incarcerated between 2006 and 2011, the most recent data available. But the number of West Virginia kids in juvenile detention facilities increased by 5% over the same time period; soon it would become the highest in the country, adjusted for population.

So, Gov. Tomblin assembled a task force made up of people from all three branches of government to conduct a comprehensive review of West Virginia’s juvenile justice system.

The task force found one of the most serious problems facing the system was the sheer number of children confined in residential youth detention facilities, popularly referred to as “juvie.”

Children were increasingly entering the court system and being removed from their homes for charges like truancy and running away — so-called “status offenses” that wouldn’t be considered a crime if they were committed by an adult. Nearly two-thirds of the kids in the state’s juvenile correctional facilities in 2013 were there for non-violent offenses, according to the West Virginia Center on Budget and Policy.

This posed — and continues to pose — serious problems for those kids who are locked up. Study after study has shown the harms of juvenile incarceration: kids that have spent time in the system are less likely to graduate from high school and more likely to be in jail as an adult. They often have trouble finding steady work or high-paying jobs and experience disruptions in their medical and physical development. They are also sometimes exposed to physical, emotional and sexual victimization in juvenile facilities, and have been isolated from their families and communities.

These are lasting impacts that can affect kids and their communities for decades. Geard Mitchell says now — two years after being released from the correctional center— he struggles with life skills his peers have already mastered, like driving and opening a bank account.

“I’m already behind all the kids my age who were taught that stuff,” he said. “And the fact that I was never given the opportunity to learn those things affects my life in the long run and on a daily basis.”

In addition to the lasting effects on kids, it’s expensive to incarcerate children. The average cost of keeping one kid in a residential facility run by either the state Department of Health and Human Resources or Bureau of Juvenile Services is over $100,000 per child per year.

All of these reasons — societal and financial — played into lawmakers’ urgency to reform the juvenile justice system back in 2014. In December of that year, Tomblin’s task force submitted a report detailing the issues and making policy recommendations. Besides the disturbingly high rates of children in the system, they found a lack of community services across the state, inconsistent and subjective decision-making related to juvenile cases, and significant gaps in data collection and analysis at every level of the system.

Experts say these data gaps are a big deal.

“If you don’t know how many kids are out-of-home, or where they’ve been placed, or certainly for what reasons, how can you actually manage a system?” asked Jake Horowitz, who directs the Pew Charitable Trusts’ Public Safety Performance Project, and assisted the task force. He said compared to other states, West Virginia’s juvenile data collection was “notably weaker” at the time.

Because of the complexity of the system — which includes DHHR, the Division of Corrections and Rehabilitation, the Department of Education and the judicial system — a lack of proper data sharing means kids like Geard Mitchell, who bounce back and forth between DHHR and BJS facilities, can easily get lost in the system. And without oversight, the system can’t continually improve.

“You have to constantly be looking at the data because things will continue to change,” said Tessa Upin, a deputy director at the nonprofit Crime and Justice Institute who assisted with the implementation of the 2015 reform bill. “So you have to be able to examine the data and examine the outcomes, and then make the right adjustments to get the best results for the kids and their families that come in contact with the system.”

This emphasis on data collection and system oversight was one of the many reforms codified by the 2015 juvenile justice bill. But West Virginia’s work in implementing this provision of the law was relatively short-lived.

Shifting priorities

Lawmakers decided to streamline West Virginia’s complex system through a new committee: the Juvenile Justice Reform Oversight Committee, which included lawmakers, government officials, a law enforcement officer and a victim’s rights advocate.

“It was supposed to be a way to measure progress, or lack of progress, in the system,” Upin said.

But the oversight committee no longer exists. The most recent meeting minutes and agenda are for a meeting that took place in June 2017, shortly before Gov. Justice switched from the Democratic to the Republican Party.

That was when Garcia, who had chaired the oversight committee under both Tomblin and Justice, stepped away from the post. At the time, Garcia was the legislative director and a senior counselor in the Governor’s Office.

Justice eventually appointed James Bailey, then a senior counselor of policy and legislation in his office, to fill the position. But despite a mandate that the oversight committee meet quarterly, members say it only had one meeting after Garcia’s departure (though no records of the meeting exist).

Stephanie Bond, the director of Probation Services and former director of the Division of Juvenile Services, was adamant that the committee continue its work. But she said it was clear the priorities of the Governor’s Office had shifted.

“With the past administration, we had inter-governmental discussions about juvenile justice reform,” Bond said. “It was a top priority so it was accepted and worked on across agencies.”

But this has not been the case for the current administration, which has focused its attention elsewhere. “Juvenile justice reform hasn’t made it to the top of the list,” she said.

Office of Gov. Jim Justice

/

The law charges the governor or their designee with presiding as committee chair; it’s also up to the governor to appoint four of the other committee members. Although representatives from all three branches and several different agencies served on the committee, the Governor’s Office had primary responsibility for setting up and running the meetings, said Putnam County Circuit Judge Phillip Stowers, a former committee member.

A spokesperson for Justice didn’t respond to multiple requests for comment on this story.

Besides the inaction on the part of the Governor’s Office, budget cuts to the department that provided staff support dealt another death blow. And lawmakers didn’t act to renew or revive the committee before its end date on Dec. 31, 2020.

This lack of action is troubling to Garcia.

“I think it’s a very big issue,” he said. “These were mandatory guidelines that were set out by the Legislature, and for whatever reason did not continue to be a priority.”

Upin of the Criminal Justice Institute says in West Virginia’s case, the leadership changes had a “fundamental impact” on the budding juvenile justice work. But that doesn’t have to be the case.

She pointed to Utah as one example. Shortly after the reforms in Utah were passed, a new person was appointed to head the Juvenile Justice Division and the program went on to successfully reduce the number of kids in locked detention by 46% (though evidence suggests the reforms have predominantly benefited white offenders).

Now, very little record exists of West Virginia’s brief Juvenile Justice Reform Oversight Committee. Despite a requirement in the law that the committee make regular reports to the legislature, only one annual report was ever written, for fiscal year 2016.

The importance of continuing to collect and analyze data is a central theme in the report. In the conclusion, the committee writes that “the goals moving forward for the different branches of government and agencies involved in this effort are as follows: Continue striving for consistency in practices statewide, improve data collection and reporting to understand the impact of the reforms, and use data to make data-driven decisions to improve outcomes for youth and families involved in the West Virginia juvenile justice system.”

But without an active oversight committee to review and enforce cross-agency data collection, program implementation, and performance outcomes, data-based decision making simply isn’t possible.

Consequences of lack of data

Upin, who has assisted 14 different states with repairing their juvenile justice systems, describes juvenile justice reform as a “forever process.”

“The passage of reform legislation is really just the beginning,” she said.

Six years after West Virginia’s juvenile justice reforms were enacted, most of the ingredients necessary to make the system work the way the task force intended are still missing.

One barrier is that there is no government-wide definition of juvenile recidivism, or the rate at which people — in this case children — who have been convicted of an offense commit other offenses after completing their sentence. This makes comparisons across agencies and juvenile justice programs nearly impossible.

And though there is some data collection at the branch and agency level, much of the data defies analysis due to the poor organization of the databases, according to Stephanie Bond.

“The courts didn’t even start an electronic database until 2013, so we’re really behind,” Bond said. “DHHR had one, but it was pretty outdated from the beginning. So they’ve had as much trouble getting data from their database as we have with ours.”

And the system is still sprawling, involving multiple courts and agencies, and without the single oversight committee the law intended.

Duncan Slade

/

West Virginia Public Broadcasting

This has a significant impact on kids like Geard Mitchell, who was shuffled back and forth between DHHR and BJS facilities for more than six years. He says several of the facilities he was in held a mixture of foster kids and kids involved in the juvenile justice system.

“I figured out after the years I was there that they mixed people. When I was there, there were kids who were only supposed to be there a week and were waiting to be put in a locked-up facility, who were involved in gun cases and stuff like that,” he said. “And they were putting them in with kids like me.” At the time, Mitchell had been charged with running away, which is a status offense.

Though she couldn’t comment specifically on Mitchell’s case, DHHR spokeswoman Jessica Holstein said the agency “is required to place children in the least restrictive placement when they are placed in the state’s custody regardless of the reason they were placed in custody. DHHR cannot place a child in a juvenile correctional facility, only circuit courts have that authority.”

The DHHR and Bureau of Juvenile Services continue to struggle with collecting, analyzing, and using data.

While the DHHR can identify the number of children placed in its more than 60 residential facilities through the Youth Services program, the department does not keep track of how many of those kids are involved in the juvenile justice system, according to Holstein.

And though the Bureau of Juvenile Services (formerly the Division of Juvenile Services) made significant efforts to improve their data systems after 2015, their reporting efforts have since faded. In 2016 and 2017, the division published annual reports that were over 100 pages long, detailing everything from staff trainings to demographic data from each youth reporting center (which are similar to day report centers) and residential facilities.

But in 2018, as part of the Legislature’s effort to consolidate the West Virginia correctional system, the free-standing agency was renamed and moved under the state Division of Corrections and Rehabilitation.

Since then, that agency’s annual reports, covering the state’s whole correctional system, have only been about 50 pages long. Of those 50 pages, only three are dedicated to the juvenile justice system.

The lack of reporting doesn’t mean that the Bureau of Juvenile Services isn’t collecting data. The Bureau was able to provide spreadsheets tracking over 20,000 cases of children sent to residential and non-residential facilities between 2013 and 2021.

But having data points isn’t the same as having legible, usable data. Although the Bureau keeps track of individual cases of recidivism, they were unable to provide a recidivism rate extrapolated from that data.

And even where concrete data does exist within the juvenile justice system — juvenile drug courts, for example, collect, analyze, and report data regularly — without an active Juvenile Justice Oversight Committee, there is no government entity to compile each agency’s data in order to review the juvenile justice system as a whole.

Room for improvement

Six years after West Virginia’s major juvenile justice reform bill was passed into law, some significant changes in the system are evident. Some of the most effective reforms have been procedural changes, like the rule that in most cases restricts children from being locked up for status offenses like truancy or running away.

Similarly, an emphasis on diversion programs that keep kids in their communities or prevent them from entering the court system in the first place has changed the system for the better. Juvenile case filings have decreased by 28% between 2014 and 2019, a decrease which is more likely due to effective diversion policies than a significant drop in juvenile offenses. (2020 case filings are dramatically reduced even from 2019 levels, almost certainly the result of COVID-19 quarantines.)

The progress made by these reforms demonstrates a fundamental characteristic of criminal justice systems around the country: policy decisions, not demographics or crime rates, drive the numbers.

“States make a decision about how many kids to place out of their homes, and for what offenses,” Jake Horowitz said.

And stories like Geard Mitchell’s show that there’s much more work to be done. Now 19 years old, Mitchell works as a caretaker for the elderly, helping them with their groceries and other tasks they might not be able to do on their own. Things are looking good, he says. But even though he’s trying to move forward, it’s not easy. And the years he spent in West Virginia’s juvenile justice and foster care systems have set him apart from his peers.

“I definitely stand out from other kids. Because they can tell, just from how I carry myself, that I didn’t grow up the right way,” he said. “I tell myself, ‘you’ve been through a lot, why give up now? You’ve made it through the toughest part of your life, and now it’s time to move on.’”

But that doesn’t mean he’s done thinking about the juvenile justice system in West Virginia. He compared himself to a dog that had been locked in a cage his whole life.

“I don’t think they should lock kids up as much as they do because they’re going to end up like that dog that doesn’t know what to do with life and is scared of everybody,” he said.

Despite the disintegration of oversight and data collection that was meant to support West Virginia’s reforms, Tessa Upin believes that improvements are still possible.

“The framework is there, and I believe there is potential for meaningful change to happen because the laws are still on the books,” she said. “It just needs someone driving, driving that change and getting people on-board across all of the agencies and branches to make it possible again.”

Reach reporter Anya Slepyan at anyaslepyan@mountainstatespotlight.org