Printer Friendly



Two years after reforming its adult criminal justice system, South Dakota passed broad reforms of its juvenile justice system. The 2015 South Dakota Juvenile Justice Public Safety Improvement Act ("JJPSIA") is a comprehensive and bipartisan legislative effort designed "to overhaul [South Dakota's] juvenile justice system." (1) South Dakota is one of "a handful of states... enacting laws to reduce secure confinement, strengthen community supervision and focus resources on practices proven to reduce recidivism. These policies are projected to save millions of taxpayer dollars, with the savings reinvested in proven interventions to produce better outcomes for our nation's youth." (2) These "Smart on Juvenile Justice" states are "leading the nation through the data-driven process of statewide legislative juvenile justice system reform." (3)

The juvenile system overhaul began in 2014 when state leaders initiated the Juvenile Justice Reinvestment Initiative ("JJRI"). (4) The JJRI work group set out to collect data and meet with stakeholders to gain an informed understanding of the juvenile justice system's performance. (5) The goal of JJRI was to promote public safety, hold youth accountable, invest in "evidence-based community interventions," and preserve "residential facilities for serious offenders." (6)
Evidence-based policymaking is the systematic use of findings from
program evaluations and outcome analyses ("evidence") to guide
government policy and funding decisions. By focusing limited resources
on public services and programs that have been shown to produce
positive results, governments can expand their investments in more
cost-effective options, consider reducing funding for ineffective
programs, and improve the outcomes of services funded by taxpayer
dollars. (7)

This article first provides an overview of several common juvenile justice practices and indicates which of those practices have been found to be effective. (8) Next, this article examines South Dakota's recent juvenile justice reforms including pre-reform concerns, the reform model the state followed, and major findings and recommendations from the JJRI. (9) This article then describes South Dakota's broad legislative reforms and the current status of the reform effort. (10)


Two of the main objectives in the establishment of the first juvenile justice system were rehabilitation and protection of the child. (11) These practices continued into the 20th century until the 1960s when the nation faced increased rates of recidivism and juvenile crime. (12) In the late 1980s, rehabilitation was replaced with a new "get tough on crime" approach. (13) Between 1985 and 1995, there was nearly an 80% increase in arrests of juveniles 17 years old or younger for violent crimes. (14)

The shift away from rehabilitation led to drastic increases in youth detention populations across the United States. (15) The youth detention population reached its highest number in 1995, when there were 107,637 youth confined in one single day. (16) Detention numbers declined 24% from 1997 to 2007 and continued to fall at three times that rate from 2006 to 2010. (17) The decline in the use of detention has not resulted in an increase in juvenile crime. (18) In fact, as the use of detention decreased 41% from 1997 to 2007, there was a "27% drop in juvenile arrests for violent index crimes." (19) "Despite historic declines in arrest rates over the past two decades, too many young people--and, disproportionately, youth of color--continue to come into contact with the juvenile justice system." (20) Most of these youth "are associated with a nonviolent offense, many are at relatively low risk of reoffending, and few will continue offending into adulthood." (21)


1. Detention (22)

"A growing body of research demonstrates that for many juvenile offenders, lengthy out-of-home placements in secure corrections or other residential facilities fail to produce better outcomes than alternative sanctions." (23) Detention facilities are extremely expensive to operate. The United States spends $6 billion annually just to incarcerate juvenile offenders. (25) The national average cost to incarcerate one juvenile for an entire year is over $88,000. (26) This money is expended on a practice that research shows has very little impact on reducing recidivism. (27)

a. Why Youth Are Detained

According to the Annie E. Casey Foundation, a leader in research and advocacy for the use of evidence-based practices to help disadvantaged children, three reasons youth end up placed in detention are lack of community-based services, detention for low-level offenses, and lack of mental health services. (28)

The first reason youth end up in detention is that there are no programs or services available to serve the youth in the area they live. (29) Within the same state, there are often extensive resources in larger, more populated cities, but few, if any, providers are willing to travel to less populated areas with a smaller population to serve. (30) Counties and local juvenile courts are often faced with the choice of using their own funds to pay for community treatment or sending youth to a state-run facility at no cost to the county. (31)

A second reason many youth end up in detention is for technical probation violations or status offenses, not new delinquent behavior. (32) In these cases, the court is often punishing defiance, not delinquency. (33) Many youth in detention are in custody for repeated rule violations or disrespectful behavior towards a judge, probation officer, or another authority figure. (34) Forty percent of youth in secure detention are being held on violations of probation or aftercare and other offenses that do not pose a threat to public safety. (35) The decision to detain based upon a violation of probation or aftercare is often at the complete discretion of the probation officer supervising the youth. (36) Data from 2010 revealed that only one out of every four children in detention were detained for one of the violent index crimes. (37)

Finally, a juvenile detention center often becomes a place to discard youth who would be more effectively served by another agency. (38) Since the 1990s, juvenile detention facilities have become a "dumping ground" for youth with mental health issues. (39) Youth with mental illness would be better served by community mental health resources, but when many residential youth mental health facilities closed during the 1990s, "uncontrollable" or "untreatable" children ended up in the juvenile justice system. (40)

b. Detention Does Not Reduce Recidivism

Incarceration has been shown to encourage the delinquent behavior it aims to prevent. (41) Facilities often have too few staff and too many kids, creating an environment ripe for "neglect and violence." (42) Children released from detention showed a 75% re-arrest rate three years after release. (43) A Florida study from 2007 showed that youth with lower risk profiles subject to time in detention re-offended at a higher rate than youth with the same risk profile who were left in the community. (44) These low-risk youth "not only re-offended at a higher rate than similar youth who remained in the community, they also re-offended at a higher rate than high-risk youth placed into correctional facilities." (45) In addition, evidence does not support that incarcerating youth for longer periods of time achieves reductions in recidivism. The amount of time a child spends in detention is commensurate with their rate of recidivism.

c. Detention has a Disruptive Impact on School Attendance, Performance, and Future Employment

Placement in detention can be extremely disruptive to school attendance, even for a short period of time. (48) Research suggests that once a juvenile is placed in detention, it is probable that the child will not return to school. (49) Even if the child does return, upon re-enrollment to school, the student is more likely to be categorized as disabled due to a social or behavior disorder. (50) Youth spending time in detention at any point in their life are 39% less likely to graduate from high school than youth who have never been detained. (51)

Youth who have served time in detention show a much higher rate of learning disabilities. (52) Children entering detention previously diagnosed with learning disabilities receive the necessary special education services less than half of the time. (53) The average youth in detention scores approximately four years below their grade level. (54) Education services offered to youth in detention are often interrupted due to the lack of qualified teachers, overcrowding at the facility, and transfer of children from one facility to another. (55)

The result of these subpar educational services partly manifests itself in youth being 5% less likely to find employment even four years after release from confinement. (56) For African American youth, the reduction in available employment is even higher, at 9%. (57) If able to find employment, the former juvenile offender works fewer hours than employees who were never incarcerated, even fifteen years after being released from detention. (58)

d. Detention is Often Unsafe for Youth

Sexual and physical abuse within detention facilities has been well documented in multiple studies. (59) The abuse reported is systemic in nature and has been documented in thirty-nine of fifty states. (60) A 2010 survey completed by the Bureau of Justice Statistics revealed that 12% of the 26,650 juveniles surveyed reported sexual victimization by staff or other juveniles at their facility. (61) Half of those surveyed reported the use of physical force, threats, and coercion. (62) Finally, youth suffering abuse in detention suffer from pervasive psychological problems after returning to the community. (63)

e. Detention Facilities are Not Equipped to Provide Needed Mental Health Services

The majority of children in the juvenile justice system have some type of pre-existing mental health issue and about half of them require "clinical care." (64) These children are especially vulnerable to additional mental health issues while in detention, including depression, feelings of hopelessness, suicidal ideation, and actually attempting suicide. (65) Placement in detention also increases a youth's tendency to underutilize impulse or aggression control and "lessen[s] [their] abilit[y] to make socially competent decisions." (66) About half of the children involved in the juvenile justice system "meet criteria for one or more mental disorders." (67) The percentage of youth in the general population that would meet the criteria for diagnosis is approximately 17% to 22%. (68) Among the population of juvenile detention facilities, two-thirds have at least one or more "diagnosable mental health conditions." (69)

Unfortunately, most facilities are not equipped to deal with this population in need of mental health treatment. Twenty percent are suffering from a disorder so severe that it impacts their ability to function. (70) Yet, these youths are likely to suffer the most. It is these youths with the most severe disorders that are the least likely to receive counseling. (71) These include children experiencing hallucinations, suicidal feelings, anger, and anxiety. (72) The primary method of treatment is to place these youths on psychotropic drugs, called atypicals, without counseling and often without proper diagnosis or oversight. (73)

2. Surveillance Programs

Surveillance programs, like electronic monitoring, show little long-term impact on recidivism. (74) Electronic monitoring is acknowledged as a cheaper, preferred alternative to detention by many, including the American Bar Association. (75) Electronic monitoring is often used in conjunction with house arrest. (76) There are many types of electronic monitoring devices, including ankle bracelets that operate on radio frequency or Global Positioning Systems ("GPS"), wrist bracelets, and alcohol measuring devices. (77) Electronic monitoring can be used as both a sanction or as an alternative to detention. (78) GPS devices monitor a youth's movements twenty-four hours a day and radio frequency signals a transmitter if the wearer leaves a specified area. (79)

Conditions given to a juvenile on electronic monitoring are numerous and very specific. (80) A violation of the most minor condition can result in the juvenile being returned to detention. (81) Failure of conditions can result from failing to charge a device, failure to attend school, or missing a court-related appointment. (82) These seemingly minor violations often result in youth remaining in the system for longer periods of time and may result in the filing of additional legal charges. (83)

Part of the reason electronic monitoring and surveillance type programs fail to work with juveniles is that these types of programs assume a developmental capacity in youth that they have not yet achieved. The development of the ability to reason appears to be at an adult level by mid-adolescence. (84) However, even in children as old as sixteen and seventeen, the lack of experience utilizing these skills in real-world scenarios impacts their choices about participation in criminal activity, reflecting an immaturity not present in the adult population. (85) Additionally, children lack the capacity to understand the "long-term consequences" of their actions. (86) When adolescents do consider the consequences of their actions, they otten underestimate the risk associated with their behavior.

Adolescence is a period marked by boredom, impulsivity, failure to accept responsibility, and a lack of remorse and guilt. Teenagers are markedly influenced by their peers, and they struggle with assessing risk, controlling their emotions and behavior, and understanding the consequences of their actions. Studies show that antisocial behavior is ten times greater during adolescence followed by a rapid decrease. (90) The majority of teenagers leave the antisocial behavior behind prior to entering into adulthood. (91) As such, most juvenile crime is "adolescence-limited" even for those that commit serious offenses. (92) However, juveniles who would normally outgrow their antisocial behavior can have that behavior reinforced by correctional interventions, such as placement in detention. (93)


Programs that offer therapeutic counseling, skill building, and case management have been shown to be the most effective methods of rehabilitation for juvenile offenders. (94) The skills most important to address are anger management, "anti-social feelings, lack of self-control, lack of affection or weak supervision from parents, lack of role models, and poor academic skills." (95) Cognitive behavioral therapy, usually done in a group format, has been shown to be particularly effective and has led to a 26% reduction in recidivism. (96)

1. Evidence-Based, Community-Based Treatment

Evidence-based models have been shown to consistently lower recidivism rates in "serious and chronic juvenile offenders," but only 5% of the population is placed into an evidence-based program annually. (97) A program is evidence-based "when their effectiveness has been demonstrated by causal evidence, generally obtained through high-quality outcome evaluations." (98) Some effective evidence-based treatment programs are Multisystemic Therapy ("MST"), Functional Family Therapy ("FFT"), and Multidimensional Treatment Foster Care ("MTFC"). (99)

Multisystemic Therapy generally lasts for three to five months and takes place in the family's home or places in their community. (100) The average cost for a child to participate in MST is between $6,000 and $9,500. (101) A master's level therapist is assigned to help parents address issues such as academic performance, peer associations, and effective parenting. (102) The therapist spends about fifty hours with the family over a four month period, helping to empower parents and create family collaboration with a community support network. (103) A 2006 study looked at MST participants eighteen months after treatment. (104) Those receiving standard treatment were arrested 3.2 times more often than MST participants. (105) Additionally, six months after treatment, MST participants were doing better in school and at work. (106) There were also improvements in functioning at home, as well as in the control of mood and emotion. (107)

Functional Family Therapy is implemented in an office to address delinquent behavior. (108) FFT is shorter in length than MST at just 12 sessions, and is also much less expensive, costing just $3,000 to $3,500. (109) FFT is designed to foster family interaction that will support behavioral changes in delinquent youth. (110) FFT has been used for over twenty-five years and has repeatedly been shown to be effective with children eleven to eighteen years of age. (111) The focus of FFT is improving family functioning "by increasing family problem-solving skills, enhancing emotional connections, and strengthening parents' ability to provide appropriate structure, guidance, and limits for their children." (112) A recent study of recidivism rates for FFT participants showed that recidivism rates were impacted by the therapists' level of adherence to the treatment model. (113) When therapists in the study showed a high level of fidelity to the FFT model, there was a significant reduction in felony and violent crimes. (114)

Multidimensional Treatment Foster Care places delinquent youth with specially trained foster families for a period of six to nine months. (115) While the youth is placed with the foster family, the youth's biological parents or legal guardians receive "intensive counseling and parent training." (116) After a series of successful home visits, the family is reunited with ongoing services to ensure the situation remains stable. (117) The youth placed in these homes are less likely to be re-arrested than youth placed in a traditional group home setting. (118) Even though there is increased cost associated with this placement, (119) when the Washington State Institute for Public Policy examined its MTFC program, it found that it produced $96,000 in savings and "a return of $14 for every dollar spent on treatment." (120) MTFC also produced additional benefits for victims and savings for the justice system. (121)

2. Reduction of Large Institutions to Small Treatment-Oriented Facilities

Even with the best community interventions, there will still be times that youth pose a risk to community safety and need to be placed in detention. In those instances, there are models currently being utilized that have proven to be more effective at rehabilitation than others. Both Missouri and Ohio have had success exchanging large detention facilities for smaller treatment-oriented facilities. (122) Smaller facilities allow youth to be housed closer to their home communities, providing more opportunity for family engagement and allowing the community to become involved as volunteers and mentors, which makes the environment of the facility less institutional. (123)

Missouri made the decision to close its large, prison-like facilities, which were capable of housing up to 2,500 youth, in exchange for dorm-like facilities. The new facilities are capable of holding no more than twelve youth at in each unit. (125) The youth are allowed to wear their own clothes, not jumpsuits. (126) There is no razor wire outside, no correctional officers, and no use of isolation. (127) Children at the facility are provided individualized treatment along with education, life skills, and vocational training. (128) Youth are successfully released from the facility if they work hard, make progress, and display good behavior. (129) The cost to house a youth per day is $94 in Missouri compared to $140 in comparable states. (130) Missouri's average yearly cost of $50,000 is about half what most states spend. (131)

Along the same lines, Ohio created smaller facilities, known as a community corrections facilities ("CCFs"), to decrease commitments to its youth detention facility, the Department of Youth Services ("DYS"). (132) The CCFs provide courts with an alternative to commitment for low-level felony offenders. These facilities are smaller than the DYS facilities and often located closer to the communities where the youth lives. (134) CCFs are also working to shorten the length of stay in detention and provide more intensive treatment to youth in their care. (135) For example, CCFs implemented cognitive behavioral therapy in their facilities as part of a redesign in 2009. (136) With the expansion of the CCFs, commitment numbers have decreased in Ohio. (137) The commitment rate in 2008 was approximately 16%, but fell to 10% by 2013. (138) In 2014, a DYS facility closed due to low population. (139)

3. Graduated Responses to Youth on Probation

Graduated responses are a system of incentives and sanctions designed to respond to the behavior displayed by youth on juvenile probation. (140) The use of incentives can be utilized to motivate youth to successfully complete probation. (141) Sanctions take into account the severity of the violation and the youth's risk level. (142) Incentives are given for meeting goals and to reinforce the development of positive skills. (143) In order to be effective, the sanctions and incentives must be certain, immediate, proportionate, fair, and tailored to individual youth. (144)

Studies show that the process of using graduated responses works--not only in the area of probation and parole, but in other areas as well. Researchers have discovered that four rewards to every one sanction are an ideal ratio to increase the chances of success. (146) Strictly imposing sanctions does not promote behavioral change. (147) After implementing graduated responses as part of juvenile justice reform, Hennepin County, Minnesota saw a 63% decrease in detention admissions for violations of probation from 2008 to 2012. (148) Monmouth County, New Jersey saw a 75% decrease in detention admissions for violations of probation from 2009 to 2012 after implementing graduated (149) responses.



Before turning its attention to juvenile justice, South Dakota first reformed its adult corrections system. In 2013, South Dakota passed the Public Safety Improvement Act of 2013, (150) a reform of the state's adult sentencing and corrections system. (151) Since the Act was passed, South Dakota's prison population growth slowed, successful parole supervision completions increased, and a lower percentage of probationers were revoked to prison. (152)

After its successful adult reforms, South Dakota next turned its attention to its juvenile justice system and determined that, although there was some progress, the system was still in need of reform. The state had successfully reduced new juvenile commitments to the South Dakota Department of Corrections ("DOC") (153) as well as juvenile probation admissions in the last ten years. (154) In addition, the juvenile recidivism rate decreased from 53% to 45%. (155) Despite these improvements, in 2011, South Dakota was still a national "outlier" with the second highest juvenile commitment rate in the country. (156) The state's reduction in DOC commitments, while laudable, was not enough because the state had not kept pace with the decline in juvenile commitments nationally. (157) Nor was the state's high commitment rate attributable to a higher rate of juvenile arrests for violent crimes. In 2011, South Dakota's juvenile violent crime rate was one-third the national average. (158)

South Dakota was spending large amounts of money-up to $ 144,000 per bed for a committed juvenile--but not getting the desired results. (159) Despite the high costs of residential placements, the juvenile recidivism rate in 2010 was 45%; therefore, more than four of every ten youths returned to the DOC within three years of release. (160)


Continuing its commitment to being "smart on crime," South Dakota became one of the first five states to lead the nation through "data-driven... statewide legislative juvenile justice reform. (161) "The state adopted the model developed by the Pew Charitable Trusts "Public Safety Performance Project" ("Pew") to examine the South Dakota juvenile justice system and develop data-driven, evidence-based policies. (162) Following the passage of legislation in the state, South Dakota became part of a comprehensive reform implementation program, known as the "Smart on Juvenile Justice Initiative," launched by the U.S. Department of Justice's Office of Juvenile Justice and Delinquency Prevention ("OJJDP"). (163) OJJDP and Pew fund the Crime and Justice Institute at Community Resources for Justice ("CJI") to provide technical assistance to states interested in adopting this reform model. (164)

The model is comprehensive; it promotes statewide juvenile justice reforms that both "protect public safety and hold youth accountable through developmentally appropriate, trauma-informed, and evidence-based practices." (165) The strategy involves two phases. Phase I involves establishing a work group to analyze data and make policy recommendations. (166) The work group should be an executive-level, bipartisan group that will: "[e]ngage juvenile justice, child welfare, education, and community stakeholders"; "[a]nalyze data to enable a comprehensive assessment of the state's juvenile justice system"; and "[d]evelop consensus policy recommendations." (167) Phase II focuses on the Smart on Juvenile Justice Initiative and involves implementing the new policies; "[a]ddress[ing] systemic racial and ethnic disparities"; "[e]nsur[ing] model fidelity"; "[m]easur[ing] performance"; and "[r]einvest[ing]." (168) The Crime and Justice Institute (CJI) serves as the OJJDP's technical assistance provider on this initiative and partners with states to support implementation of comprehensive juvenile justice policies through targeted training and technical assistance. (169) OJJDP cautions that
[s]tates prepared to take on comprehensive reform must be aware of the
significant time commitment and resources necessary to support data
collection for system monitoring and assessment.... Comprehensive
statewide juvenile justice reform is a complex, multifaceted process
that involves translating analysis into policy, and then policy into
practice, while meeting the expectations of policymakers, partners,
stakeholders, as well as system-involved youth and their families. (170)


In 2014, South Dakota Governor Dennis Daugaard, South Dakota Supreme Court Chief Justice David Gilbertson, and legislative leaders initiated the South Dakota Juvenile Justice Reinvestment Initiative ("JJRI"). (171) Governor Daugaard and Chief Justice Gilbertson convened a "bipartisan, interbranch group... representing counties and state and local government to participate on the" JJRI work group. (172) The JJRI was launched:

to study the juvenile justice system and develop policy recommendations that advance three goals:

a. increase public safety by improving outcomes for youth and families and reducing juvenile recidivism;

b. effectively hold juveniles more accountable; and

c. reduce juvenile justice costs by investing in proven community-based practices and preserving residential facilities for serious offenders. (173)

During Phase I of the reform effort, the JJRI work group conducted extensive data analysis and met with hundreds of South Dakota juvenile justice stakeholders. (174) Stakeholders included "system-involved youth, parents of committed youth, victim advocates, Native American stakeholders, states' attorneys, judges, law enforcement, educators, county commissioners, youth care providers, defense attorneys, court services officers, juvenile corrections agents, and teen court representatives." (175)

The JJRI work group also analyzed a significant amount of data to gain a comprehensive understanding of South Dakota's juvenile justice system's effectiveness. The group "analyzed juvenile arrest, disposition, probation, out-of-home placement, and aftercare data, and reviewed research on effective practices in juvenile justice and on what works to reduce delinquency, including empirical, peer-reviewed studies about effective community-based practices and the use of residential treatment." (176)

1. Phase I: The Juvenile Justice Reinvestment Initiative Work Group's Findings & Recommendations

a. Major Findings

The JJRI work group's findings relate to three broad categories: preventing youth from deeper involvement in the system; availability of evidence-based treatment options; and use of out-of-home commitments.

i. Need to Prevent Deeper Involvement in the Juvenile Justice System: Diversion & Probation

The work group identified concerns about youth at the "front end" of the system: for example, youth who might be eligible for a less formal intervention, such as diversion before any court proceedings, and youth who might be suitable for probation rather than out-of-home commitments. The work group learned that diversion was not used consistently throughout the state. (177) Counties' use of diversion practices varied from a county using its own well-established program, using diversion services offered by the courts, or not using diversion at all. (178) In addition, there were no statewide "standardized criteria to guide the referral of youth to diversion services...." (179) The work group also found that youth sent to probation were kept on probation longer, even though they were often rated as lower risk. (180)
Despite this shift toward lower supervision intensity and more
misdemeanor youth placed on probation, both the initial terms of
probation given to youth at the time of disposition and the actual time
spent under probation supervision have grown. The average term of
probation reached a high of 22.2 months in 2013, with great variation
across circuits. (181)

ii. Need to Ensure Availability of Evidence-Based Treatment

The work group also discovered that South Dakota lacked evidence-based treatment programs in the community, particularly in rural areas. (182) Although the state had some necessary "building blocks... in place to ensure that youth can be matched with the programming they need, such as the use of validated risk and needs assessments[,]" it did not have a sufficient array of programs to meet those risks and needs. (183) The work group further learned that there was inadequate "infrastructure, such as training requirements, data collection, or quality assurance protocols, to ensure that the services to which [youth] are referred are delivered by providers trained in the interventions who are delivering them with fidelity." (184)

iii. Need to Use Out-of-Home Commitments for Public Safety Risks

Lastly, the work group learned that most youth committed to costly DOC placements were not the youth who posed a risk to public safety. Rather, the youth committed to DOC were there, overwhelmingly, for lower-level offenses: 75% of DOC commitments were for misdemeanor offenses, status violations, and probation offenses. Misdemeanors, such as marijuana possession and petty theft, made up 43% of DOC commitments, whereas felonies accounted for only 24%. (186) Youth who had committed probation violations--most often "lower-level" violations--made up 27% of DOC commitments. (187) Youth placed in DOC were also staying there longer: time spent in a DOC commitment increased 27.5% in the decade prior to the work group's 2014 report. (188) In 2013, the average length of time spent in a DOC commitment was 15.3 months. (189)

The lack of adequate community programming was linked to the overreliance on DOC commitments. The work group learned "that courts at times remove youth from their homes and place them in residential programs not because they think such sanctions are appropriate for purposes of punishment, incapacitation or rehabilitation but because adequate community-based options are not available at the level needed." (190)

b. Policy Recommendations

The South Dakota JJRI work group developed specific recommendations in four priority areas: "encourage the use of diversion strategies, expand to evidence-based interventions, prioritize residential placements for youth who pose a public safety risk, and create an oversight council to monitor the reforms." (191) The group predicted that implementing its recommendations would "change the trajectory of the DOC out-of-home population by reducing the projected number of youth in DOC public and private out-of-home placements 64 percent by 2020" and that the "reduction [will] create cost savings to be invested into effective community-based interventions." (192) "In addition, the probation population is expected to decline 29 percent." (193)

2. Phase II: Policy Implementation

a. South Dakota's New Juvenile Justice Reforms: Juvenile Justice Public Safety Improvement Act (JJPSIA)

In 2015, South Dakota began Phase II of the reform effort, as part of the Smart on Juvenile Justice Initiative, by implementing new policies and measuring performance. South Dakota is receiving intensive, tailored training and technical assistance from CJI to support statewide implementation efforts on the policies in JJPSIA. (194) The work group's comprehensive recommendations were introduced as the Juvenile Justice Public Safety Improvement Act ("JJPSIA") in the South Dakota Legislature. (195) The bill passed unanimously in the Senate, by a 60-7 vote in the House, and was signed into law by Governor Daugaard. (196)

i. Prevent Deeper Involvement for Youth Who Commit Lower Level Offenses

In order to prevent youth from becoming more deeply involved in the juvenile justice system, the adopted reforms now require mandatory diversion, ticketable offenses, and reforms to probation duration and administration.

Mandatory Diversion. South Dakota law now mandates diversion for many lower-level offenses. (197) The JJPSIA also reduced the maximum duration of a youth's diversion from six months to four months. (198) Youth who have allegedly committed a status or delinquency offense "shall" be referred for diversion ("informal adjustment or informal action") provided that they meet the criteria set forth in section 26-7A-11.1: no prior adjudications; no diversions within the last twelve months; the offense is a status offense or constitutes a misdemeanor; and the alleged conduct did not involve the use of violence or force. (199) The only exception is that a prosecutor who has "good cause to believe that the [diversion] is insufficient" may fde a petition, with notice of the "departure from [diversion]." (200) The youth has the ability to contest the departure by filing a motion with the court, and if the court agrees there is no good cause, it can refer the child to diversion. (201) In order to encourage counties' use of diversion opportunities, the law also created a fiscal incentive program. (202)

Ticketable Offenses. South Dakota created a citation process for youth who commit certain lower-level offenses. (203) Youth offenses of petty theft, intentional damage to property (less than $400), underage drinking, and truancy are now treated as "cited violations"--similar to a traffic ticket. (204) The prosecutor may refer these youth to diversion, provided the youth meets the diversion criteria in section 26-7A-11.1 (detailed above). (205) If the prosecutor chooses to proceed on the complaint and a court enters judgment against the youth, the punishment can include such measures as a fine not to exceed $100, restitution, and/or suspension or revocation of driving privileges if the offense related to underage drinking. (206) The court may not order probation or detention, however. (207) In 2017, the legislature amended the law to allow for additional measures a court may order, including diversion and community service. (208) A judgment on a cited violation is not a delinquency or status-offense ("CHINS") proceeding, but it still must be kept confidential. (209) Prosecutors maintain the option of filing an ordinary delinquency or CHINS petition against the child, provided certain criteria are met. (210)

Juvenile Probation Reforms. South Dakota revamped its probation guidelines to ensure that youth are not on probation for long periods of time and that the use of incentives and probation violation sanctions are used uniformly throughout the state. The state shortened the term of regular probation to no more than four months (down from eight months) and intensive supervised probation (a program for high-risk, high-need juveniles) to an eight-month maximum. (211) The duration of probation may be extended by the court to up to twelve months total, "for the child to engage in evidence-based treatment as required by the case plan." (212)

To ensure that probation more effectively addresses the underlying concerns about a youth's behavior, the JJPSIA required the South Dakota Supreme Court to establish a graduated sanctions and incentives program. (213) South Dakota now has a graduated response matrix that prioritizes incentives for positive behavior and provides guidance on how to respond to probation violations. The incentives are meant to "catch" youth probationers doing something right--to acknowledge and reward good behavior. The law provides that the court services officer "shall also employ positive reinforcement for a probationer's compliance with the conditions of supervision and completion of benchmarks during the term of supervision." (214) Incentives should be applied more frequently than sanctions; the matrix requires a four to one incentives to sanctions ratio. (215) For example, when a youth meets or exceeds the probation terms, the court services officer can give incentives such as verbal or written praise, moderate financial awards, or certain freedoms like an overnight at a friend's house or extending curfew. (216)

The graduated responses also address how to effectively respond to probation violations by: (1) guiding court services officers to respond "quickly, consistently, and proportionately," "[r]educing the time and resources expended by the court to respond"; and (2) "[r]educing the likelihood of a new delinquent act." (217) The range of responses also provides courts more options to respond to violations, short of committing the youth to DOC. For example, the court services officer might implement sanctions like adjusting curfew, having a parent-child conference, requiring the youth to complete a written assignment, or requiring community service. (218) The law now limits DOC commitments for probation violations to situations where the youth's violation constitutes a new law violation (219) and the following aggravating circumstances are present: (1) there is "[n]o viable alternative"; (2) the DOC "is the least restrictive alternative"; and (3) the youth must either be adjudicated as delinquent for a serious offense or the court must find "that the youth presents a significant risk of physical harm to another person." (220)

ii. Expand Evidence-Based Community Interventions

The JJPSIA also provides for improved youth outcomes by investing in rehabilitative, evidence-based programs in the community that can meet a youth's individualized needs. The Act added "focus on community-based rehabilitation" to the declared purpose of the delinquency and CHINS laws. (221) The law requires the Department of Social Services ("DSS"), the DOC, and the Unified Judicial System ("UJS") to work together to "identify community-based treatment to be made available to juveniles with justice system involvement based on the needs of the youth." (222) "Any treatment identified for implementation shall be quality assured and shown through research or documented evidence to reduce recidivism and other juvenile risk factors." (223) The law also emphasizes the importance of using appropriate risk assessment tools, mental health assessments, and substance abuse assessments in matching youth to community programs. (224)

In order to help courts identify viable community-based interventions for both delinquent and CHINS youth, the law established Community Response Teams ("CRTs"). CRTs are comprised of a court services officer, DSS and DOC designees, and may also include a school representative and representatives from the public. (225) A court can appoint a CRT, and the team can then communicate about appropriate and available options for the youth and make a recommendation to the court. (226) The court maintains the discretion to adopt or reject the CRT's recommendation in whole or in part. (227)

iii. Prioritize Out-of-Home Commitments for Youth Who Pose a Safety Risk

Even before the recent juvenile justice reform effort, South Dakota law's stated purpose has been to use sanctions that are the "least restrictive alternative available in keeping with the best interests of the child." (228) Yet, South Dakota's high commitment rate, with three-fourths of youth committed for low-level offenses, belied this aim. The recent reforms establish presumptive probation for youth adjudicated delinquent or CHINS, to reduce reliance on commitment and maintain a focus on community-based rehabilitation. Under the new law, a court may only commit a child to DOC if: (1) there is "[n]o viable alternative"; (2) the DOC "is the least restrictive alternative"; and (3) the youth must either be adjudicated as delinquent for a serious offense or the court must find "that the youth presents a significant risk of physical harm to another person." (229)

The work group recommended specific limits on the length of stay in DOC out-of-home placements. (230) The JJPSIA does not include these proposed specific limits, although it does include performance-based reimbursement to private contractors and an aspirational requirement for state-run facilities. Private group care and residential treatment contractors have financial incentives to meet treatment goals within a specified time period. (231) When DOC places a youth in a privately run group care facility, residential treatment center, or intensive residential treatment center, the provider will receive a "maximum performance-based reimbursement payment" if it "substantially accomplishes] the treatment goals" and releases the youth within three months. (232 ) The reimbursement rate goes down the longer it takes the provider to accomplish the treatment goals. (233) For juvenile corrections facilities operated by the DOC, the law provides that the DOC "shall design and operate programs to achieve substantial accomplishment of treatment goals and the release to aftercare within three months." (234)

Although courts are now more limited by the law's restrictions on committing a youth to the DOC, courts are still able to place a child in a county detention facility for not more than ninety days. (235) The law now requires, however, that if a judge orders detention in a county facility for fifteen or more days (in a thirty day period), the judge must enter specific findings "justifying the need for extended detention." (236) The law still requires that the court must determine that the detention is the "least restrictive alternative" and in the "best interests of the child" (237) but there are no requirements, similar to the DOC commitment provision, that there be no "viable alternative" and that the youth either poses a risk of physical harm to another person or has been adjudicated for an enumerated serious offense.

iv. Provide Oversight to Ensure "Quality and Sustainability of Reforms" (238)

South Dakota's reforms also include a significant commitment to oversight to ensure that reforms are implemented and achieve the desired results. The 2015 legislation established an oversight council to monitor and evaluate the progress of the reforms. (239) The agencies involved in working with delinquent and CHINS youth are required to collect data and submit reports to the oversight council on a regular basis. (240)

v. Address Racial and Ethnic Disparities

The OJJDP reform model further encompasses addressing racial and ethnic disparities. To address this important concern, the South Dakota JJPSIA created a Native American pilot project to evaluate and make recommendations to improve outcomes for Native American youth in the juvenile justice system. (241) Available data indicates that "[m]inority youths, primarily Native American, are over-represented at most stages of South Dakota's juvenile justice system." (242) For example, in 2014, youth of color "made up 47% of those arrested, 68% of those in detention, and 49% new DOC commitments while only making up 23% of the total at risk juvenile population." (243)

3. Current Status of South Dakota's Reform Effort

a. First Annual Implementation Report

In 2017, the JJPSIA oversight council released its first annual report containing performance data for the first six months of outcomes since the new policies were implemented in January 2016. (244) Although it is very early in the implementation process, the report helps to give an initial picture about the success of the juvenile justice reforms.

i. Preventing Deeper Involvement in the Juvenile Justice System

Mandatory Diversions & Ticketable Offenses. An investment of $3.2 million was used to encourage counties to utilize diversion programs and to expand community-based services. (245) For the Fiscal Year 2016, there were 1,001 eligible cases referred by the state's attorney for diversion. (246) Expansion of diversion programs was encouraged by offering each county the ability to receive a $250 reimbursement for each youth that successfully completed a diversion program. (247) All counties were encouraged to submit data for reimbursement, but only 26 applied for reimbursement, receiving a total of $242,500. (248) Of the 1,415 diversions implemented across the state, 69% of the diversions were successfully completed. (249)

Youth receiving a citation for a ticketable offense could pay a fine or complete community service work instead of being placed on formal supervision. (250) There were a total of 1,274 citations issued--a majority (69%) were issued for alcohol and truancy, but only 2% were petitioned. (251)

Probation Reforms. For the fiscal year January through June 2016, there were a total of 1,010 new probation admissions--820 delinquency and 190 CHINS. (252) The state is meeting the new legislative requirement that probation is to last no longer than four months. (253) The average delinquent youth is currently being ordered to serve 3.9 months of probation and is being supervised on probation for 3.4 months of the time ordered. (254) The average CHINS case is being ordered to four months of probation and being supervised for 3.9 months of the four months ordered. (255)

Court services officers began using the graduated incentives and sanctions matrix (now called Juvenile Supervisory Responses ("JSR")) in February 2016. (256) The JSR guides court services officers to administer a system of graduated sanctions and incentives that alters youth behavior and encourages prosocial behavior. (257) Over the five months since its implementation, there were 2,184 graduated responses reported. (258) Eleven percent of the responses were sanctions and 29% were incentives. (259) The number of probation violations has dropped by 62% since 2014, and 60% of those youth violating their probation were given the opportunity to remain in the community while working to improve their performance on probation. (260)

Circuits were given the option to establish Community Response Teams ("CRTs"), under the Act. (261) The CRTs assist judges in identifying community alternatives to commitment and have been formed in the First and Second Judicial Circuits. (262) Combined, they have received a total of twelve referrals. (263) In the First Circuit, the court entered the disposition recommended by the CRT one out of four times. (264) The Second Circuit entered dispositions that are in partial agreement with the CRT three out of four times. (265)

ii. Using Evidence-Based Community-Based Interventions

Implementation of evidence-based treatment statewide was made possible by the state's investment of $6.1 million. (266) There were 306 referrals to evidence-based treatment during the six-month time-period surveyed, and 95% of those referrals were to Functional Family Therapy ("FFT"). (267) Referrals to services may be made by multiple sources. The Unified Judicial System made the majority of the referrals, but the same percentage of referrals were made by the DOC as were made by outside agencies like schools and diversion programs. (268)

iii. Prioritizing Out-of-Home Commitments for Youth Who Pose Greatest Safety Risks

A redefining of criteria for commitment to DOC to include only youth posing serious risk to public safety has led to a 43% reduction in new DOC commitments between fiscal years 2015 and 2016 and a 62% decline in recommitments from 2014 to 2016. (269) The new policies and legislation have also impacted the length of stay in out-of-home placements. The average stay has decreased in three out of the four types of residential placements the DOC utilizes. (270) The DOC entered into performance-based contracts with private providers in June 2016. (271) These contracts require providers to meet treatment goals within established timeframes and return youth to the community as soon as they can safely be returned home. (272) The new policies and legislation have yet to impact the average length of commitment, which has remained steady at between twenty-nine and thirty months. (273)

The number of youth under the DOC jurisdiction has fallen by 38%. (274) The decrease in numbers resulted in the closure of a state-run residential facility. (275) According to the Director of Juvenile Services with the South Dakota Department of Corrections, the changes are allowing youth to receive treatment in "smaller facilities, closer to home." (276)

b. 2017 Legislative Amendments

As with any new comprehensive legislative effort like the one South Dakota has adopted, there is room for improvement. During the 2017 legislative session, several amendments were introduced to revise portions of legislation connected with the reform efforts. Those revisions include changes to mandatory diversion, ticketable offenses, probation measures, and an unsuccessful attempt to change the DOC commitment criteria.

Mandatory Diversion. The 2017 amendments added a small change to the mandatory departure provisions, allowing prosecutors who seek to depart from the mandatory provision to file a delinquency petition or a CHINS petition. (277)

Ticketable offenses. The amendments to the juvenile citation process allow schools to more easily report youth truancy concerns and provide prosecutors more discretion. School officials may now file a report in lieu of a citation with the state's attorney. (278) The amendment also clarified the circumstances where the prosecutor may file a delinquency or CHINS petition against the child rather than treat the matter as a citation. (279)

Probation Measures. The 2017 amendments allow for the probation period to be tolled under certain limited circumstances. (280) The 2017 amendments also extend the permitted duration of probation. (281) The 2015 Act shortened probation duration to four months, but the 2017 amendments raised it to six months for regular probation. (282) The 2017 amendments also raised the duration of intensive probation. (283) The court services officer may now request extensions, but the maximum duration of either type of probation may not exceed eighteen months. (284) The maximum period of probation was only twelve months in the 2015 Act. (285)

DOC Commitment. One amendment, which sought to make it easier to commit youth to DOC, was vetoed by Governor Daugaard. Senate Bill 164 would have added language allowing the court to commit a youth adjudicated as delinquent to the DOC if the youth posed a risk to himself or herself alone. (286) Specifically, the amendment would have allowed for commitment to the DOC for a child "the court finds... presents a significant risk of physical harm to themselves or to another person." (287)

Governor Daugaard explained that the language '"harm to themselves' may encompass a broad array of factual scenarios...." (288) This phrase could include substance use, tobacco use, self-mutilation, and eating disorders. (289) Daugaard stated that youth with these types of issues would be better served with counseling and resources in the community than being placed in the custody of the DOC. (290) He further stated that youth with self-harm behaviors might be placed in greater danger in the DOC custody, or be more susceptible to the influence of "violent or dangerous offenders." (291) Daugaard ended by stating that the vetoed measure did not serve to "better protect the public," that it put juveniles at unnecessary risk, and that placement in the DOC is not the best way to help a child in that situation. (292)


South Dakota should be lauded for its proactive leadership in juvenile justice reform. It leads the nation as one of the first five "Smart on Juvenile Justice" states to closely examine how well its system is serving the needs of the youth and protecting the overall community. South Dakota's commitment to data-driven and evidence-based practices will help ensure that the juvenile justice system can effectively respond to delinquency. The interbranch, bipartisan cooperation the state has demonstrated thus far is exemplary.

It is too early in the process to evaluate the full impact of South Dakota's Juvenile Justice Public Safety Improvement Act. The preliminary numbers from its first six months are promising. Lower level juvenile offenses are being dealt with on the "front end" through diversion and ticketable offenses. The probation duration lengths have decreased. The uses of graduated incentives and sanctions have resulted in youth being able to remain in the community rather than being sent to detention.

South Dakota also faces challenges to providing community-based services in a predominantly rural state. The authors are interested in how the state addresses the challenge of finding providers willing to serve small youth populations in remote areas, and who are still able to provide the individualized evidence-based treatment the youth needs.

One of the goals of the OJJDP reform model includes addressing racial and ethnic overrepresentation in the juvenile justice system. At the time of this article, the report from the South Dakota Native American juvenile justice pilot project, which will evaluate and recommend measures to improve outcomes for Native American youth, has not yet been submitted to the oversight council. The authors look forward to seeing more efforts from South Dakota to address racial and ethnic disparities in the juvenile justice system.

WEDNY HESS ([dagger]) & EMILY VERHINE ([dagger][dagger])

([dagger]) Associate Professor, University of South Dakota School of Law. B.A., 1995, University of Maryland; J.D., 1998, University of Denver. Both authors extend thanks to Mr. Greg Sattizahn, State Court Administrator for the South Dakota Unified Judicial System, for his expertise and assistance. ([dagger][dagger]) J-D. Candidate, 2018, University of South Dakota School of Law; Master of Science in Conflict Management, Kennesaw State University, 2013; B.S. in Criminal Justice, University of Tennessee at Chattanooga, 2002. I would like to thank my parents, Jimmy and Barbara Verhine, for being a constant source of encouragement, love, and support. Thank you for never giving up on me. I would also like to express my sincere appreciation to my two mentors in the field of juvenile justice, Denise Haney and Todd Bentley. Thank you for teaching me by example that working in the field of juvenile justice is a calling, not a job, and for always making me feel like I was capable of doing anything. I am so incredibly lucky to count you both as friends. Finally, I would like to thank Professor Wendy Hess for asking me to write with her on this topic of mutual interest. I am a better writer because of your generous willingness to share your time and expertise. 1. S.B. 73, 90th Leg., Reg. Sess. (S.D. 2015). Issue Brief: South Dakota's 2015 Juvenile Justice Reform, THE PEW CHARITABLE TRS. (Jan. 29, 2016), [hereinafter Issue Brief].

(1.) S.B. 73, 90th Leg., Reg. Sess. (S.D. 2015). Issue Brief: South Dakota's 2015 Juvenile Justice Reform, THE PEW CHARITABLE TRS. (Jan. 29, 2016), /south-dakotas-2015-juvenile-justice-reform [hereinafter Issue Brief].

(2.) U.S. Dep't of Justice, Office of Justice Programs & Office Juvenile Justice & Delinquency Prevention, Smart on Juvenile Justice: Strategies for Comprehensive Statewide Juvenile Justice Reform, 6 (2016), [hereinafter OJJDP Strategies].

(3.) Id. at 8, 26.

(4.) Final Report, S.D. JUVENILE JUSTICE REINVESTMENT INITIATIVE WORK GRP., 1 (2014), [hereinafter Final Report].

(5.) Id. at 1,3.

(6.) Id. at 1, 3 (emphasis added).

(7.) How States Engage in Evidence-Based Policymaking: A National Assessment, PEW-MACARTHUR RESULTS FIRST INITIATIVE, 1 (2017),

(8.) See infra Part II.

(9.) See infra Part III; Part III.A-C.1.

(10.) See infra Part III.C.2-3.

(11.) Charlyn Bohland, No Longer a Child: Juvenile Incarceration in America, 39 CAP. U. L. REV. 193, 19 (2011). See also Juvenile Justice: Rethinking Punitive Approaches to Addressing Juvenile Crime, UNIV. OF PITTSBURGH OFFICE OF CHILD DEV (Jan. 2009), (critiquing punitive juvenile justice policies) [hereinafter Rethinking Punitive Approaches].

(12.) Mark R. Fondacaro et. al., The Rebirth of Rehabilitation in Juvenile Justice and Criminal Justice: New Wine in New Bottles, 41 OHIO NORTHERN U. L. REV. 697, 700-02 (2015).

(13.) Bohland, supra note 11, at 197; Rethinking Punitive Approaches, supra note 11.

(14.) Rethinking Punitive Approaches, supra note 11. Violent crime includes "murder, forcible rape and aggravated assault." Id.

(15.) Fondacaro, supra note 12, at 704. The tough on crime movement of the 1980s led "in part, to a 72% increase in youth detention over the next ten years." Id.

(16.) Youth Incarceration in the United States, THE ANNIE E. CASEY FOUND., 1, (last visited Aug. 17, 2017) [hereinafter THE ANNIE E. CASEY FOUND. I].

(17.) No Place for Kids: The Case for Reducing Juvenile Incarceration, THE ANNIE E. CASEY FOUND., 26 (2011), http://www.aecf.Org/m/resourcedoc/aecf-NoPlaceForKidsFullReport-2011.pdf [hereinafter THE ANNIE E. CASEY FOUND. II]; THE ANNIE E. CASEY FOUND. I, supra note 16, at 1.

(18.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 26.

(19.) Id. Violent crime index include murder, forcible rape, and aggravated assault. Rethinking Punitive Approaches, supra note 11.

(20.) OJJDP Strategies, supra note 2, at 6 (citing C. Puzzanchera & S. Hockenberry, National Disproportionate Minority Contact Databook, U.S. DEP'T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS & OFFICE JUVENILE JUSTICE & DELINQUENCY PREVENTION (2015),

(21.) Id. (footnotes and citations omitted).

(22.) "Detention" is used in this article to refer to both pre-adjudication confinement (the equivalent of pre-trial jail confinement for adults and referred to as "detention" to a county facility in South Dakota), S.D.C.L. [section] 26-7A-23 (2016), and post-adjudication confinement (out-of home placement of the youth, equivalent of post-conviction incarceration for adults, and referred to as "commitment to the Department of Corrections" in South Dakota), S.D.C.L. [section] 26-11A-8 (2016).

(23.) Re-Examining Juvenile Incarceration: High Cost, Poor Outcomes Spark Shift to Alternatives, The PEW CHARITABLE TRS. (Apr. 2015),

(24.) Reducing Youth Incarceration in the United States, THE ANNIE E. CASEY FOUND., 1 (2013), [hereinafter THE ANNIE E. CASEY FOUND. III].

(25.) Anna Aizer & Joseph J. Doyle, Jr., Juvenile Incarceration, Human Capital, and Future Crime: Evidence from Randomly Assigned Judges, 130 Q.J. OF ECON. 759, 798 (2015).

(26.) Id.

(27.) THE ANNIE E. CASEY FOUND. III, supra note 24, at 1.

(28.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 14-15.

(29.) Id. at 14.

(30.) Id.

(31.) Id.

(32.) THE ANNIE E. CASEY FOUND. I, supra note 16, at 2.

(33.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 15.

(34.) Id.

(35.) THE ANNIE E. CASEY FOUND. I, supra note 16, at 2. Aftercare refers to the monitored program a youth is on after release from detention (the equivalent of adult parole). See S.D.C.L. [section] 26-11A-12 (2016) (defining youth aftercare).

(36.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 15.

(37.) THE ANNIE E. CASEY FOUND. III, supra note 24, at 2.

(38.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 14.

(39.) Id.

(40.) Fondacaro et al., supra note 12, at 705; THE ANNIE E. CASEY FOUND. II, supra note 17, at 14.

(41.) Fondacaro et al., supra note 12, at 705 (citing Mark W. Lipsey, The Primary Factors That Characterize Effective Interventions with Juvenile Offenders: A Meta-Analytic Overview, 4 Victims & Offenders 124, 128(2009)).


(43.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 10.

(44.) Id. at 12.

(45.) Id.

(46.) Re-Examining Juvenile Incarceration, supra note 23, at 3.

(47.) Bohland, supra note 11, at 203 n.95 (citing Randall G. Shelden, From Houses of Refuge to 'Youth Corrections ': Same Story Different Day 18 (2005) (unpublished paper)).

(48.) Aizer & Doyle, supra note 25, at 767.

(49.) Id.

(50.) Id.

(51.) Fondacaro, supra note 12, at 706-07.

(52.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 12.

(53.) Andrea J. Sedlack & Karla S. McPherson, U.S. Dep't of Justice, Office of Justice Programs & Office Juvenile Justice & Delinquency Prevention, Youth's Needs and Services: Findings from the Survey of Youth in Residential Placement, JUV. JUST. BULL., 6 (Apr. 2010),

(54.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 24 (citations omitted).

(55.) Id. at 25 (citations omitted).

(56.) Id. at 12.

(57.) Id.

(58.) Bruce Western & Katherine Beckett, How Unregulated is the U.S. Labor Market? The Penal System as a Labor Market Institution, 104 AMERICAN J. OF Soc. 1030, 1049 (Jan. 1999).

(59.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 6-7. See generally Jessica Lahey, The Steep Costs of Keeping Juveniles in Adult Prisons, ATLANTIC (Jan. 8, 2015), (stating that juveniles incarcerated with adults are more likely to suffer from sexual abuse); Carly B. Dierkhising et al., Victims Behind Bars: A Preliminary Study of Abuse During Juvenile Incarceration and Post-Release Social and Emotional Function, 20 PSYCHOL. PUB. POL'Y & L. 181 (2014) (addressing statistics about sexual abuse in juvenile incarceration centers).

(60.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 5. An investigation by the Associated Press found that of 13,000 claims of abuse between 2004 to 2007 from state run juvenile detention facilities, only 1,343 were substantiated. Id. at 6. The majority of the claims were never investigated because youth at the facility lacked access to a grievance system or because youth feared retaliation. Id.

(61.) Id. at 6-7.

(62.) Id. at 7.

(63.) Julia Dmitrieva et al., Arrested Development: The Effects of Incarceration on the Development of Psychological Maturity, 24 DEV. & PSYCHOPATHOLOGY 1073, 1083 (2012).


(65.) Karen M. Abram et al., U.S. Dep't of Justice, Office of Justice Programs & Office Juvenile Justice & Delinquency Prevention, Suicidal Thoughts and Behaviors Among Detained Youth, Juv. JUST. BULL., 1 (Jul. 2014)

(66.) Fondacaro et al., supra note 12, at 705 (citing Dmitrieva et al., supra note 63. at 1083).

(67.) Rethinking Punitive Approaches, supra note 11 (citing Linda A. Templin et al., Psychiatric Disorders in Youth in Juvenile Detention, 59 ARCHIVES OF GENERAL PSYCHIATRY 1333, 1333 (2002)).

(68.) Alan Kazdin, Adolescent Development, Mental Disorders, and Decision Making of Delinquent Youths, in YOUTH ON TRIAL: A DEVELOPMENTAL PERSPECTIVE ON JUVENILE JUSTICE 33, 38 (Grisso & R. Schwartz, eds., 2000).

(69.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 24.

(70.) Id. (citations omitted).

(71.) Id.

(72.) Id.

(73.) John Kelly, Psych Meds In Jails, YOUTHTODAY (Oct. 1, 2010), ails/.

(74.) Kate Weisburd, Monitoring Youth: The Collision of Rights and Rehabilitation, 101 IOWA L. REV. 297, 335-36(2015).

(75.) Id. at 300-01 (citing AM. BAR ASS'N, RESOLUTION 104D: ADOPTED BY THE HOUSE OF DELEGATES 11-12 (2011),

(76.) James Austin et al., Alternatives to the Secure Detention and Confinement of Juvenile Offenders, Juv. JUST. BULL., 13 (Sept. 2005),

(77.) Offender Supervision with Electronic Technology: Community Correction Resources, AM. PROB. & PAROLE ASS'N, 12, 16 (2009), (citing Letter from Peggy Conway to author (2008)).

(78.) Id. (citations omitted).

(79.) Id.

(80.) Weisburd, supra note 74, at 302-03.

(81.) Id. at 303 (citations omitted).

(82.) Id.

(83.) Id.


(85.) Elizabeth S. Scott & Laurence Steinberg, Adolescent Development and the Regulation of Youth Crime, 18 FUTURE OF CHILD. 15, 20 (2008).

(86.) Id.

(87.) Id. at 21.

(88.) Bohland, supra note 11, at 198 (citations omitted).

(89.) Scott & Steinberg, supra note 85, at 20-21.

(90.) Rethinking Punitive Approaches, supra note 11.

(91.) See generally Terrie E. Moffitt, Adolescence-limited and life-course-persistent antisocial behavior: A developmental taxonomy, 100 PSYCHOL. REV. 674 (1993) (explaining the correlation between age and antisocial behavior).

(92.) Scott & Steinberg, supra note 85, at 24.

(93.) Id. at 25.

(94.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 16.

(95.) Id.

(96.) Mark W. Lipsey, The Primary Factors that Characterize Effective Interventions with Juvenile Offenders: A Meta-Analytic Overview, 4 Victims & Offenders 124, 144 (2009).

(97.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 16-18 (quoting Scott W. Henggeler & Sonja K Schoenwald, Evidence-Based Interventions for Juvenile Offenders and Juvenile Justice Policies that Support Them, SOC. POL'Y REP., 8 (Nov. 2011),

(98.) Glossary, NAT. INSTITUTE OF JUSTICE, https://www.crimesolutions.gOv/Glossary.aspx#E (last visited Aug. 17, 2017).

(99.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 17.

(100.) Id.

(101.) Id.

(102.) Peter Greenwood, Prevention and Intervention Programs for Juvenile Offenders, 18 FUTURE OF CHILD. 185, 198(2008).

(103.) Id.

(104.) Program Profile: Multisystemic Therapy (MST), NAT. INSTITUTE OF JUSTICE (June 17, 2011),

(105.) Id. The study found that those receiving MST had a recidivism rate of 66.7% as opposed to the group receiving the normal treatment offered which recidivated at a rate of 86.7%. Id.

(106.) Id.

(107.) Id.

(108.) ANNIE E. CASEY FOUND. II, supra note 17, at 17.

(109.) Id.

(110.) Id.

(111.) Greenwood, supra note 102, at 198.


(113.) Program Profile: Functional Family Therapy (FFT), NAT. INSTITUTE OF JUSTICE (June 14, 2011),

(114.) Id.

(115.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 17.

(116.) Id.

(117.) Id.

(118.) Greenwood, supra note 102, at 201 (citations omitted).

(119.) Id. Traditional group home placement is $7,000 less per child than placement in MTFC. Id.

(120.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 21 (citing Elizabeth K. Drake et al., Evidence-Based Public Policy Options to Reduce Crime and Criminal Justice Costs: Implications in Washington State, 4 VICTIMS & OFFENDERS 170, 184 (2009).

(121.) Greenwood, supra note 102, at 201.

(122.) Bohland, supra note 11, at 221-22 (citations omitted); Jennifer L. Lux et al., Downsizing Juvenile Institutions in Ohio: Five Innovations, 10 VICTIMS & OFFENDERS 379, 385-86 (2015).

(123.) THE ANNIE E. CASEY FOUND. II, supra note 17, at 34.

(124.) Bohland, supra note 11, at 222 (citations omitted).

(125.) Id. (citations omitted).

(126.) Marian Wright Edelman, Missouri's Humane and Sensible Approach to Juvenile Justice, HUFFPOST: THE BLOG (Mar. 17, 2008, 10:23 AM),

(127.) Id.

(128.) Stephanie Chen, Teen offenders find a future in Missouri, CNN (Aug. 27, 2009, 10:18 AM),

(129.) Id.

(130.) Bohland, supra note 11, at 221 (citations omitted).

(131.) Chris Cuomo et al., Missouri's New Take on Juvenile Justice, ABC NEWS (Sept. 8, 2009),

(132.) Lux et al., supra note 122, at 385 (quoting Christopher T. Lowenkamp et al., Community Corrections Facilities for Juvenile Offenders in Ohio: An Examination of Treatment Integrity and Recidivism, 37 CRIM. JUST. & BEHAV. 695, 696 (2010)).

(133.) Lowenkamp et al., supra note 132, at 696.

(134.) Lux et al, supra note 122, at 385.

(135.) Nancy A. Marion, Community Corrections in Ohio: Cost Savings and Program Effectiveness, JUST. POL'Y INST., 2 (2002),

(136.) Getting it Right: Realigning Juvenile Corrections in Ohio to Reinvest in What Works, SHUBERT CENTER FOR CHILD STUD., CASE WESTERN RES. UNIVERSITY, 2 (2015),

(137.) Lux et al., supra note 122, at 386.

(138.) SHUBERT CENTER FOR CHILD STUD., supra note 136, at 1.

(139.) Lux et al., supra note 122, at 385-86.


(141.) Id.

(142.) Id.

(143.) Id.

(144.) Id. at 8-9.

(145.) Id. at 9.

(146.) Id. at 10.

(147.) Id. at 9.


(149.) CTR. FOR CHILD. L. & POL'Y, supra note 140, at 11.

(150.) S.B. 70, 88th Leg., Reg. Sess. (S.D. 2013).

(151.) FINAL REPORT, supra note 4, at 2.


(153.) The South Dakota Department of Corrections is responsible for both juvenile and adult correctional facilities. See S.D.C.L. [section] 26-11A-1 (2016) (providing for the DOC to "establish, maintain, and operate" correctional facilities "to provide appropriate custody and care of juveniles committed to the department"); S.D.C.L. [section] 24-1-4 (2016) (providing for DOC's direction and government of the adult state penitentiary).

(154.) FINAL REPORT, supra note 4, at 14. New commitments to the DOC fell 20% and probation admissions fell 24% between 2004 and 2014. Id.

(155.) Id

(156.) Id. at 2 (commitment rate was 385 per 100,000 youth). "The commitment rate is the rate of juveniles placed in residential facilities through commitment to the state per 100,000 juveniles ages 10 through 17." Id.

(157.) Id. (citing Easy Access to the Census of Juveniles in Residential Placement, OFF. OF Juv. JUST. & DELINQ. PREVENTION (2013),

(158.) Id. (citing Easy Access to FBI Arrest Statistics: 1994-2011, OFF. OF Juv. JUST. & DELINQ. PREVENTION (2014),

(159.) Id. ("The state had budgeted $34 million in fiscal year 2014, spending anywhere from $41,000 to $144,000 per bed annually for the committed juvenile population.").

(160.) Id.

(161.) OJJDP Strategies, supra note 2, at 26. The other states were Georgia, Kentucky, Hawaii, and West Virginia. Id.

(162.) Id. at 10 (listing South Dakota as one of the states using Pew's Public Safety Performance Project model).

(163.) Id. at 7. The U.S. Department of Justice's Office of Juvenile Justice and Delinquency Prevention "has a broad mandate under the Juvenile Justice and Delinquency Prevention Act (JJDPA) of 1974 to support statewide, data-driven reform of juvenile justice systems to better meet the needs of youth, families, and communities." Id. at 4.

(164.) Id. at 3.

(165.) Id.

(166.) Id. at 4.

(167.) Id.

(168.) Id.

(169.) Getting "Smart" on Juvenile Justice: Implementing Statewide Reforms, CRIME & JUST. INST., (last visited Aug. 17, 2017).

(170.) OJJDP Strategies, supra note 2, at 18, 20.

(171.) FINAL REPORT, supra note 4, at 1.

(172.) Id at 3.

(173.) Id. at 1.

(174.) Id.

(175.) Id. at 3.

(176.) Id.

(177.) Id. at 4.

(178.) Id.

(179.) Issue Brief, supra note 1, at 5.

(180.) FINAL REPORT, supra note 4, at 4.

(181.) Id. at 7.

(182.) Id.

(183.) Id. at 8.

(184.) Id.

(185.) Id. at 1. Status offenses in South Dakota are referred to as Children in Need of Supervision ("CHINS") and typically involve offenses that would not be crimes if committed by an adult. See S.D.C.L. [section] 26-8B-2 (2016) (defining "child in need of supervision").

(186.) FINAL REPORT, supra note 4, at 5.

(187.) Id. Eighty-four percent "of the probation violators committed to DOC in 2013 were originally placed on probation for a CHINS violation or non-sex misdemeanor adjudication." Id. at 5 n.6.

(188.) Id. at 6.

(189.) Id.

(190.) Id. at 1.

(191.) Issue Brief, supra note 1.

(192.) FINAL REPORT, supra note 4, at 2.

(193.) Id.

(194.) Getting "Smart" on Juvenile Justice, supra note 169.

(195.) S.B. 73, 90th Leg., Reg. Sess. (S.D. 2015).

(196.) S. Journal, 90th Cong., 19th Sess. 172 (S.D. 2015); H.R. Journal, 90th Cong., 19th Sess. 678 (S.D. 2015); S. Journal, 90th Cong., 19th Sess. 714 (S.D. 2015).

(197.) S.D.C.L. [section] 26-7A-11.1 (2016).

(198.) S.D.C.L. [section] 26-7A-11.

(199.) S.D.C.L. [section] 26-7A-11.1.

(200.) S.D.C.L. [section] 26-7A-11.1.

(201.) S.D.C.L. [section]26-7A-11.1.

(202.) S.D.C.L. [section] 26-8D-2 (2016).

(203.) S.D.C.L. [section] 26-7A-126-129 (2016).

(204.) S.D.C.L. [section] 26-7A-126.

(205.) S.D.C.L. [section] 26-7A-10 (2016) (describing state's attorney's preliminary investigation, generally); S.D.C.L. [section] 26-7A-11.1 (detailing diversion criteria); S.D.C.L. [section] 26-7A-127 (describing actions by the state's attorney for a juvenile cited violation).

(206.) S.D.C.L. [section] 26-7A-127 (2016 & Supp. 2017) allows prosecutors to file a petition to begin proceedings if a child has committed the citable offense. Id. However, the mandatory diversion provisions in section 26-7A-11.1 still apply. See id. (cross-referencing S.D.C.L. [section] 26-7A-11.1).

(207.) S.D.C.L. [section] 26-7A-129.

(208.) S.D.C.L. [section][section] 26-7A-129(l), (3) (2016 & Supp. 2017).

(209.) See S.D.C.L. [section] 26-7A-126 ("A cited violation is not an adjudication or a child in need of supervision or delinquency proceeding" and "case records shall be treated as confidential"); S.D.C.L. [section] 26-7A-129 (2016 & Supp. 2017) ("A judgment on a cited violation shall be a confidential matter...").

(210.) S.D.C.L. [section] 26-7A-127. The initial version of the bill was somewhat unclear and was amended in 2017 to clarify when a prosecutor may file a delinquency or CHINS petition.

(211.) S.D.C.L. [section] 26-8C-14 (2016 & Supp. 2017). In 2017, however, the South Dakota Legislature amended the law to allow for longer probation terms. See infra Part III.C.b (describing 2017 legislative amendments.)

(212.) S.D.C.L. [section] 26-8C-14. The only time the probation may exceed twelve months is if the "court provides written authorization to allow a child to complete evidence-based treatment that will not be completed before probation expires." Id In 2017, South Dakota extended these limits. See infra Part III.C.b.

(213.) S.D.C.L. [section] 26-7A-125 (2016). Those graduated sanctions and incentives were adopted in 2016 and are now codified in S.D.C.L. [section][section] 26-8E-1 to 26-8E-11 (2016).

(214.) S.D.C.L. [section] 26-8E-7.

(215.) S.D.C.L. [section] 26-8E, App. B.

(216.) S.D.C.L. [section] 26-8E, App. B.

(217.) S.D.C.L. 26-7A-125(1)-(3) (2016).

(218.) S.D.C.L. [section]26-8E, App. A (2016).

(219.) S.D.C.L. [section] 26-8C-15 (2016) (DOC commitment for delinquency probation violations only when new law violation and aggravated circumstances); 26-8B-9 (2016) (DOC commitment for CHINS probation violations only when new law violation and aggravated circumstances). A new law violation is defined as delinquent behavior or certain offenses under the motor vehicle code, such as a DUI. S.D.C.L. [section] 26-8C-15 (2016). There is also a provision addressing how to respond to youth's aftercare violations. S.D.C.L. [section] 26-11A-15 (2016).

(220.) S.D.C.L. [section] 26-8C-7(10)(c) (2016). The serious offenses are ones where the youth would be eligible for transfer to the adult system, a crime of violence, a sex offense, a felony sexual registry offense, or second degree burglary.

(221.) S.D.C.L. [section]26-8B-l (2106).

(222.) S.D.C.L. [section] 26-8D-3 (2016).

(223.) S.D.C.L. [section] 26-8D-3 (2016).

(224.) S.D.C.L. [section] 26-8D-3.

(225.) S.D.C.L. [section] 26-8D-10 (2016).

(226.) S.D.C.L. [section] 26-8D-10; S.D.C.L. [section] 26-8B-4 (2016); S.D.C.L. [section] 26-8C-5 (2016).

(227.) S.D.C.L. [section] 26-8B-4; S.D.C.L. [section] 26-8C-5.

(228.) S.D.C.L. [section] 26-8C-7 (2008) (delinquency); S.D.C.L. [section] 26-8B-6 (2008) (CHINS).

(229.) S.D.C.L. [section] 26-8C-7(10)(c) (2016). The serious offenses are ones where the youth would be eligible for transfer to the adult system, a crime of violence, a sex offense, a felony sexual registry offense, or second degree burglary. Id. See also S.D.C.L. [section] 26-8B-6 (2016) (a court can commit to DOC if "[n]o viable alternatives exist," DOC is "the least restrictive alternative," and court finds "youth presents a significant risk of physical harm to another person").

(230.) FINAL REPORT, supra note 4, at 10 (recommending four-month limit on length of stay in private group care and a maximum length of stay of 12 months in residential treatment centers).

(231.) S.D.C.L. [section] 26-8D-17(2016); S.D.C.L. [section] 26-8D-18 (2016).

(232.) S.D.C.L. [section]26-8D-17.

(233.) S.D.C.L. [section] 26-8D-17; S.D.C.L. [section] 26-8D-18.

(234.) S.D.C.L. [section]26-8D-17.

(235.) S.D.C.L. [section] 26-8C-7(6) (2016); S.D.C.L. [section] 26-8B-6(3) (2016).

(236.) S.D.C.L. [section] 26-8D-14 (2016).

(237.) S.D.C.L. [section] 26-8C-7 (2016); S.D.C.L. [section] 26-8B-6 (2016).

(238.) S.D.C.L. [section] 26-8C-7(10)(c).

(239.) See S.D.C.L. [section] 26-8D-7 (2016) (establishing juvenile justice oversight committee); see also S.D.C.L. [section] 26-8D-8 (2016) (specifying council composition); S.D.C.L. [section] 26-8D-9 (2016) (detailing council meetings and tasks).

(240.) The following agencies must report to the oversight council: the South Dakota Department of Corrections (S.D.C.L. [section] 26-8D-2 (2016); S.D.C.L. [section] 26-8D-19 (2016); S.D.C.L. [section] 26-8D-20 (2016)); the South Dakota Unified Judicial System (S.D.C.L. [section] 26-8D-10 (2016); S.D.C.L. [section] 26-8D-15 (2016); S.D.C.L. [section] 26-8D-16 (2016)); the South Dakota Department of Social Services (S.D.C.L. [section] 26-8D-4 (2016)); and the South Dakota Department of Tribal Relations (S.D.C.L. [section] 26-8D-6 (2016)).

(241.) S.D.C.L. [section] 26-8D-5 (2016).

(242.) South Dakota Council of Juvenile Services: State Fiscal Year 2015 Report, COUNCIL OF JUV. SERVS.,6,

(243.) Id.

(244.) South Dakota Juvenile Justice Public Safety Improvement Act: 2016 Annual Report, S.D. Juv. JUST. OVERSIGHT COUNCIL, 3 (2017).

(245.) Id.

(246.) Id. at 4.

(247.) Id. at 5.

(248.) Id.

(249.) Id.

(250.) Id. at 4.

(251.) Id.

(252.) Id.

(253.) Id. at 6.

(254.) Id.

(255.) Id.

(256.) Id. at 8

(257.) Id.

(258.) Id.

(259.) Id.

(260.) Id. at 9.

(261.) Id. at 14.

(262.) Id.

(263.) Id.

(264.) Id.

(265.) Id.

(266.) Id. at 11. All South Dakota Court Services Staff received training in Effective Practices in Community Supervision ("EPICS") by the end of 2016 which will "provide staff with skills to improve the delivery of rehabilitative services and supervision for youth being supervised in the community." Id. at 9. In addition, South Dakota recently added Anger Replacement Training ("ART"), another evidence-based intervention. E-mail from Greg Sattizahn, State Court Adm'r to Wendy Hess, Assoc. Professor & Emily Verhine (April 19, 2017) (on file with author).

(267.) S.D. Juv. JUST. OVERSIGHT COUNCIL, supra note 244, at 11-12.

(268.) Id. at 11.

(269.) Id. at 13.

(270.) Id. at 15. The four types of residential placement used by DOC are in-state group homes, in-state residential treatment (this includes Intensive Residential Treatment and Psychiatric Residential Treatment Facilities), out-of-state private, and STAR Academy. Id. The only type of placement where there was no decrease in length of stay was in-state residential treatment facilities. Id.

(271.) Id.

(272.) Id.

(273.) Id. at 18.

(274.) Id. at 16. There were 611 youth under DOC jurisdiction in 2014 to 380 in 2016. Id.

(275.) Id.

(276.) Id.

(277.) S.B. 103, 92nd Leg., Reg. Sess. (S.D. 2017).

(278.) Id.

(279.) Id.

(280.) S.B. 84, 92nd Leg., Reg. Sess. (S.D. 2017). The amendment allows for the tolling of probation when a juvenile absconds, when a petition is filed to modify or revoke probation, or when a violation of probation report is filed. Id.

(281.) S.B. 179, 92nd Leg., 2017 Reg. Sess. (S.D. 2017).

(282.) Id.; S.D.C.L. [section][section] 26-8B-8, 26-8C-14 (2015).

(283.) Id. If the youth is placed on intensive probation, the duration of probation may last for 12 months. Originally, the statute only allowed for a maximum period of eight months.

(284.) Id.

(285.) S.D.C.L. [section][section] 26-8B-8, 26-8C-14 (2015).

(286.) S.B. 164, 92nd Leg., Reg. Sess. (S.D. 2017).

(287.) Id. (emphasis added).

(288.) Letter from Dennis Daugaard, Governor, to Matt Michels, President of the Senate (Mar. 17, 2017), 11460&Session=2017.

(289.) Id.

(290.) Id.

(291.) Id.

(292.) Id.
COPYRIGHT 2017 South Dakota Law Review
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2017 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Author:Hess, Wedny; Verhine, Emily
Publication:South Dakota Law Review
Date:Sep 22, 2017

Terms of use | Privacy policy | Copyright © 2019 Farlex, Inc. | Feedback | For webmasters