Juvenile justice: ‘From nothing to something and then right back to nothing’

Kentucky’s once ‘model’ system for rehabbing youths draws federal scrutiny. Again.

By Deborah Yetter | Kentucky Lantern

The mood was cel­e­bra­to­ry as Kentucky and fed­er­al offi­cials crowd­ed into the Capitol Rotunda on a cold January day in 2001 to announce the end of five years of fed­er­al over­sight of the state’s prob­lem-rid­den juve­nile jus­tice system.

“We’re nev­er going to slide back to where we were in 1995,” said then-Juvenile Justice Commissioner Ralph Kelly. “We know we’re on the road to victory.”

But slide back Kentucky has — despite sweep­ing reforms enact­ed under a 1995 fed­er­al con­sent decree that advo­cates say, by the ear­ly 2000s, made it a nation­al mod­el for reha­bil­i­tat­ing young offenders.

Now, Kentucky faces the threat of renewed fed­er­al over­sight after the U.S. Justice Department announced May 15 it is open­ing an inves­ti­ga­tion into whether con­di­tions at eight juve­nile deten­tion cen­ters and one res­i­den­tial cen­ter for offend­ers vio­late civ­il rights of youths.

In a let­ter to Gov. Andy Beshear, the depart­ment said it is inves­ti­gat­ing pos­si­ble exces­sive use of chem­i­cal force (pep­per spray) and phys­i­cal force by staff, fail­ure to pro­tect youths from vio­lence and sex­u­al abuse, overuse of iso­la­tion and lack of men­tal health and edu­ca­tion­al services

And long­time observers of the sys­tem who have watched the down­ward slide — includ­ing Earl Dunlap, a juve­nile jus­tice expert appoint­ed by the fed­er­al author­i­ties  to mon­i­tor Kentucky’s com­pli­ance with the 1995 con­sent decree — say it didn’t have to happen.

“Disgusting and sad,” is how Dunlap described it. “You had peo­ple in lead­er­ship in Kentucky who should not have allowed this to hap­pen. You went from noth­ing to some­thing and then right back to nothing.”

Dunlap, who is semi-retired and lives in Illinois, said he became so con­cerned about reports of prob­lems in juve­nile jus­tice that in March 2023, he wrote to Beshear warn­ing him of the risk of fail­ing to ful­ly address problems.

While con­grat­u­lat­ing Beshear on efforts to reform juve­nile jus­tice, Dunlap added in his let­ter he feared such efforts might fall short of fed­er­al stan­dards and result in future litigation.

Dunlap said he offered to pro­vide the admin­is­tra­tion with assis­tance for reform efforts but did not get a reply.

Beasher’s office did not imme­di­ate­ly respond to a request for com­ment about Dunlap’s letter.

But Terry Brooks, exec­u­tive direc­tor of Kentucky Youth Advocates, said his orga­ni­za­tion has found the Beshear admin­is­tra­tion unin­ter­est­ed in out­side input when it comes to juve­nile jus­tice, call­ing it a “closed shop.”

“Not only has there not been any out­reach, there has not been a response to folks try­ing to reach out,” he said.

Problems build for years

Brooks said while prob­lems have been build­ing over the years in juve­nile jus­tice, Beshear, now in his sec­ond term, and law­mak­ers ulti­mate­ly bear responsibility.

“This is clear­ly on the Beshear admin­is­tra­tion and the General Assembly,” he said. “Clearly the gov­er­nor and the General Assembly abro­gat­ed their responsibility.”

Beshear defend­ed his administration’s efforts to upgrade juve­nile jus­tice in a state­ment released Tuesday by Morgan Hall, spokes­woman for the Cabinet for Justice and Public Safety.

“In response to vio­lent out­breaks and to enhance secu­ri­ty for staff and youth, the Beshear-Coleman admin­is­tra­tion devel­oped an aggres­sive plan start­ing in December 2022 to imple­ment sweep­ing improve­ments to Kentucky’s juve­nile jus­tice sys­tem, for the first time since its cre­ation near­ly 25 years ago,” it said.

In December, Beshear announced the state would open a deten­tion cen­ter for females only in Campbell County fol­low­ing the sex­u­al assault of a female detainee in Adair County.

Beshear also has sought to address acute staffing short­ages by increas­ing start­ing pay for youth work­ers to $39,127 a year and the General Assembly approved about $138 mil­lion a year each year in addi­tion­al juve­nile jus­tice funds for fis­cal years 2023 and 2024.

It also has worked to upgrade med­ical and men­tal health ser­vices, the state­ment said.

Efforts also are under­way to reopen the Jefferson County Youth Detention Center, which Louisville Metro Council decid­ed to stop fund­ing in 2019 after oper­at­ing it for near­ly 40 years. That forced the state to take on hous­ing juve­nile detainees, some in dis­tant coun­ties at under­staffed facil­i­ties, far away from fam­i­lies and requir­ing long dri­ves back and forth for court appearances.

Dunlap calls that a huge blunder.

“The ram­i­fi­ca­tions were that the largest vol­ume of kids in the state had to be trans­port­ed else­where,” he said. “It was just plain ridiculous.”

‘Take the initiative’

The leg­is­la­ture, under pres­sure from the 1995 con­sent decree, in 1996 cre­at­ed the Department of Juvenile Justice to over­see youths charged with and con­vict­ed of offens­es, which pre­vi­ous­ly had fall­en under the Cabinet of Health and Family Services.

While the pre­vi­ous fed­er­al inves­ti­ga­tion focused on res­i­den­tial cen­ters, where youths found guilty of offens­es were sent for treat­ment, the state also elect­ed to cre­ate a sys­tem of new region­al deten­tion cen­ters to hold chil­dren with pend­ing charges. Previously, in many coun­ties, chil­dren were held in adult jails, gen­er­al­ly in sep­a­rate units.

Masten Childers II, health cab­i­net sec­re­tary for for­mer Gov. Brereton Jones, said the state went beyond require­ments of the con­sent decree.

Childers, who  over­saw nego­ti­a­tion of the 1995 con­sent decree with fed­er­al author­i­ties, said he was “sur­prised and dis­ap­point­ed” to learn Kentucky once again is sub­ject to a civ­il rights inves­ti­ga­tion of its juve­nile facilities.

“If our con­sent decree had been fol­lowed, we would not be talk­ing about this,” he said.

Still, he thinks the Beshear admin­is­tra­tion can use the inves­ti­ga­tion to improve the sys­tem should it result in fed­er­al enforcement.

“Kentucky needs to take the ini­tia­tive,” he said. “This is not the time to be defensive.”

‘No win here’

Sen. Whitney Westerfield, R‑Fruit Hill and long­time pro­po­nent of juve­nile jus­tice reform, said he’s con­cerned that the state’s sys­tem is becom­ing more like an adult prison mod­el instead of one focused on reha­bil­i­ta­tion and treat­ment of youths, many of whom have expe­ri­enced sig­nif­i­cant trau­ma and have men­tal health issues.

The cur­rent Juvenile Justice Commissioner, Randy White, appoint­ed by Beshear in March, is a 27-year vet­er­an of the state adult prison system.

“The extent to which we make our sys­tem for kids more like a cor­rec­tions facil­i­ty and less a place for oppor­tu­ni­ties for kids, the more harm we’re going to do in the long run,” Westerfield said. “The more we approach it as a baby prison, the more dam­age we’re going to do.” 

Westerfield said he’s sad­dened that prob­lems with Kentucky’s juve­nile jus­tice sys­tem have attract­ed atten­tion of fed­er­al author­i­ties but hopes it results in improvements.

“If this is what it takes, then that’s a good thing,” he said.

Meanwhile, he said, he’s con­cerned that the juve­nile jus­tice sys­tem is strug­gling even as Kentucky law­mak­ers enact tougher laws on juve­nile offend­ers, cit­ing mis­lead­ing claims that today’s youths are more vio­lent or that juve­nile crime is increasing.

“Juvenile crime is not worse. It’s drop­ping,” he said. “Adult crime is dropping.”

Juvenile crime has been falling steadi­ly and in 2020, was at its low­est lev­el since 2005, accord­ing to a U.S. Office of Juvenile Justice and Delinquency Prevention report last year.

Still his fel­low law­mak­ers rely on anec­do­tal events or a head­line-grab­bing crime as a rea­son to enact tougher laws, includ­ing one that takes effect July 1 to require manda­to­ry, 48-hour deten­tion for youths charged with seri­ous crimes, Westerfield said. That has the poten­tial to send an addi­tion­al 400 youths a year into state juve­nile deten­tion facil­i­ties even as those facil­i­ties come under inves­ti­ga­tion by fed­er­al authorities.

“There’s no win here except the polit­i­cal vic­to­ry for the spon­sors and for the peo­ple who vot­ed for it,” Westerfield said. “They’s going to get to say they’re tough on crime.”

‘Damn pepper spray’

The cur­rent fed­er­al inves­ti­ga­tion focus­es on the eight deten­tion cen­ters and one res­i­den­tial cen­ter, the Adair Youth Development Center, the site of a November 2022 riot, result­ing in a seri­ous injury to staff and sex­u­al assault of a female youth. In addi­tion to those facil­i­ties the state oper­ates five oth­er youth devel­op­ment cen­ters, eight group homes for juve­niles and six non­res­i­den­tial day-treat­ment programs.

In recent years, alle­ga­tions of abuse, soli­tary con­fine­ment, overuse of force and overuse of adult cor­rec­tions-type mea­sures such as pep­per spray have dom­i­nat­ed head­lines — ini­tial­ly in report­ing by John Cheves of the Lexington Herald Leader — and more recent­ly, out­lined at leg­isla­tive hear­ings includ­ing alle­ga­tions of  sex­u­al mis­con­duct and dis­pro­por­tion­ate treat­ment of Black and mul­tira­cial youth. 

In January, state Auditor Allison Ball released a report request­ed by law­mak­ers detail­ing a series of seri­ous prob­lems with the system’s deten­tion cen­ters includ­ing overuse of force, sig­nif­i­cant under­staffing, lack of clear poli­cies of man­ag­ing youth behav­ior and mis­use of isolation.

The report, by the con­sult­ing firm CGL Management Group, also expressed con­cern about the Beshear administration’s intro­duc­tion of pep­per spray and tasers into juve­nile cen­ters, say­ing they are large­ly unnecessary.

“Current nation­al­ly rec­og­nized best prac­tices do not sup­port the wide­spread deploy­ment of chem­i­cal agents or the use of elec­troshock devices (such as Tasers) with­in juve­nile deten­tion and instead rec­om­mend strate­gies to reduce or elim­i­nate these uses of force,” it said.

The Justice Cabinet, in a state­ment, defend­ed the use of pep­per spray, also known as ole­o­resin cap­sicum, or OC spray.

“Pepper spray is a non-lethal, effec­tive tool for both staff and juve­niles, and is issued by adult and juve­nile facil­i­ties across the coun­try,” it said.

Further, it said, the leg­is­la­ture has man­dat­ed that pep­per spray and tasers be issued to staff at juve­nile jus­tice facilities.

The out­side audit warned use of pep­per spray is espe­cial­ly risky for chil­dren with asth­ma or oth­er health con­di­tions or those on cer­tain medications.

“As staffing lev­els improve, fur­ther con­sid­er­a­tion should be giv­en to entire­ly remov­ing pep­per spray,” it said.

Dunlap, the for­mer fed­er­al mon­i­tor, said he was shocked when Beshear autho­rized the use of pep­per spray in juve­nile deten­tion cen­ters last year, call­ing its use “old school.”

“The first thing I would do is get rid of that damn pep­per spray,” he said. “They’re gonna kill some­one with it.”