Wis. Stat. section 938.34(3)(f) allows for children to be placed in a juvenile detention facility as a dispositional placement for up to 365 days.

However, the regulations for holding kids in juvenile detention facilities for up to 365 days are woefully inadequate.

History

The guidelines under which juvenile detention centers operate were last reviewed and modified in 2010. They were designed to address safety and basic programming standards for the traditional short-term placements for which juvenile detention facilities and programs were intended.

Prior to 2011, state statutes permitted placing a youth in secure detention for up to 30 days as a disposition. In the 2011-13 budget, that time limit was extended to 180 days, and was subsequently extended to 365 days in the 2013-15 budget.

Minimal language about facilities providing mental health and education services for these longer placements was included, but that language in no way provides meaningful direction or guidance for facilities or for DOC or DCF to fulfill any oversight responsibilities.

There are currently 12 juvenile detention facilities in Wisconsin, and at least six of these facilities have a long-term program where children are frequently placed on a dispositional order. The current regulations for these facilities do little to address important areas for these programs around:

• safety;

• screening and admission criteria for placement of youth;

• education and behavioral programming;

• family engagement;

• reentry;

• mental, physical, and dental health care and services;

• staffing and training requirements;

• case and treatment planning; general housing and living conditions; behavior management;

• including the use of solitary confinement; and

• coordination of services with local resources.

Current Programs

The current long-term detention programs include:

• 180 Day program (Eau Claire County)

• PACE (Fond du Lac County)

• CORE Academy (La Crosse County)

• MCAP (Milwaukee County)

• ACE soon to be RISE UP (Racine County)

• ACTIONS (Rock County)

Each of the existing long-term programs have to varying degrees developed program components that address the areas of concern noted above.

And though, in some cases, current practices go well beyond the minimal requirements contained in statute and reflect the intent of those developing the programs to design services that are unique to their jurisdiction(s), this is not true across the board, and only the minimum requirements are regulated.

The current standards under Wis. Stat. chapter DOC 346 Secure Detention for Juveniles are failing children due to these significant problems:

• The current standards do not ensure that the kinds of services needed for youth placed in long-term confinement are provided.

• Even for programs that provide services more comprehensive than the current standards require, there is nothing that requires those to be maintained in the future.

• There is nothing that limits the ability of a court to place a youth in a secure juvenile detention center that provides essentially no services above and beyond that which they provide for short-term youth. While as noted above there are currently six facilities that have developed special long-term programs, primarily for youth from their own county/region, a court may place a youth in a facility that has not developed that programming. The authorization under chapter 938 is to the court, not necessarily the facility.

• While there is a “maximum” related to the length of placement, there is no “minimum” that reflects any understanding of what and how a placement longer than 30 days will benefit a youth. The result is that a court may order placement for any length of time up to 365 days regardless of whether or how facilities have developed special programs, let alone those facilities that provide nothing different from what they provide for short-term youth.

Comparing the regulations in Wis. Stat. chapter DOC 346 to those of Wis. Stat. chapter DOC 347, which regulates Secured Residential Care Centers for Children and Youth (SRCCCY), accentuates the inadequacy. Additionally, looking at best practice recommendations also highlights the need for better regulation.

Below I highlight just two examples of the lack of requirements under chapter DOC 346 related to classification and assessment, and programming through comparison with chapter DOC 347 and recommended best practices.

Classification and Assessment

Under Wis. Stat. chapter DOC 346.10, classification is to be based on legal status, gender, age, behavior, information concerning present offense, current and prior detention history, medical condition, mental health, and other criteria designed to provide for the protection and safety of juveniles, staff and the community.

Facility should have specific criteria for the exclusion of juveniles from being housed in dormitories or double cells.

There is no specific language about any assessment process, procedure, or requirement.

Under Wis. Stat. chapter DOC 347.13 and 347.14, the facility shall use an objective classification system for youth based on gender, age, behavior, information concerning present offense, current and prior correctional placement history, medical and mental health condition, and other criteria designed to provide for the protection and safety of youth, staff, and the community.

Staff completing the youth classification shall be trained on the use of the objective classification system. Lesbian, gay, bisexual, transgender, or intersex youth shall not be placed in a particular living unit, bed, or other assignment solely on the basis of such identification or status, nor shall agencies consider lesbian, gay, bisexual, transgender, or intersex identification or status as an indicator of the likelihood of being sexually abusive. Reclassification shall occur a minimum of every three months after initial classification. All classification and reclassification decisions shall be reviewed and documented by a supervisor as soon as practicable.

Best practice recommendations:

• comprehensive assessment, including:

  • criminogenic risks and needs;

  • responsivity factors that affect ability to benefit from programming;

  • family relationships; and

  • educational history, status and needs;

• initial treatment plan based on assessment; and

• initial release plan.

Programming

Under Wis. Stat. chapter DOC 346.36, on weekdays other than legal holidays, a minimum of six hours of the out-of-cell time shall be time spent in structured group or individual activities, including education, exercise, recreation, and, as appropriate, family counseling, or drug and alcohol counseling.

On weekends and legal holidays, a minimum of three hours of the out-of-cell time shall be time spent in structured activities which may include visitation, recreation, exercise, and housekeeping

Programming required under Wis. Stat. section 938.34(3)(f)4: If a juvenile's placement under this paragraph exceeds 30 days, whether or not consecutive, the county department shall offer the juvenile alcohol or other drug abuse treatment, counseling, and education services.

Under Wis. Stat. chapter DOC 347.39 – 347.46, there is a whole subchapter related to programs and services.

• provide programming that consists of structured treatment, leisure, recreational, exercise, and educational activities;

• incorporate evidence-based practices and trauma-informed and science aligned principles in programs and services;

• provide programs and services that are responsive to the genders, sexual orientations, disabilities, socioeconomic statuses, cultural, racial and ethnic backgrounds, experiences, interests, and primary languages of youth;

• post and adhere to a daily schedule of programs and services in each living unit. Reasons for any deviations from scheduled activities shall be documented;

• encourage youth to be out of their rooms and engaged in programming; and

• ensure youth have daily access to the facility’s outdoor recreation space, weather permitting.

Besides this general section on programing, there are additional sections about community partnerships for programming, education, vocational opportunities, independent living and life skills programming, leisure activities, recreation, and exercise, youth, family and social support engagement, and case plan and treatment.

Best practice recommendations:

• Link education and treatment programming to assessment findings.

• Follow evidence-based practices in assigning youth to programs:

  • separate low-risk youth from those with higher risk profiles; and

  • provide proper “dosage” (length and intensity) of treatment based on risk level.

• Provide evidence-based programs when available and appropriate.

• Assure that staff delivering treatment are trained/certified, and receive monitoring and feedback on an ongoing basis.

• Include activities designed to strengthen healthy family relationships.

These are just two examples, but additional concerns can be found in looking at the lack of regulation regarding education requirements, classroom space, outdoor recreation space, release plans, and mental health treatment.

Nearly 10 Years

It is worth noting that 2017 Act 185, which was supposed to close Lincoln Hills and Copper Lake, and which created the Secured Residential Care Centers for Children and Youth (SRCCCY), intended for these SRCCCY facilities to replace the current 180/365 programs. However, there was a carve out to allow counties that did not receive the grant money to build a SRCCCY to continue to run their 180/365 program.

Additionally, the Wisconsin Department of Corrections has started the process to engage in rulemaking to revise chapter DOC 346, but it is unclear what changes will be made and when those may go into effect.

Lastly, much of the information included in this article comes from a memo provided to Gov. Scott Walker in 2017 by the Governor’s Juvenile Justice Commission.

We are coming up on 10 years of allowing these 180/365 programs to continue without adequate regulation.

Given the lack of meaningful direction or guidance for these programs, it is especially important for system actors to take special care in vetting these programs’ appropriateness for each youth, and monitoring the outcomes for youth in these programs.

This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.