ANNAPOLIS – The Department of Juvenile Services withdrew proposed regulations this week that would have allowed it to send girls in the justice system away from their families and communities, all while guaranteeing close-to-home services for most male offenders.
Wednesday, after reviewing critical comments submitted on behalf of several advocacy organizations, the Department backed off.
But in the absence of regulations clarifying a 2007 law requiring community-based services, the Department may still be able to send girls far from home.
Not maintaining equity between girls and boys in the system is both logical and to the benefit of the girls, said Jay Cleary, director of communications for the Department of Juvenile Services, before the regulations were withdrawn.
“Girls have specialized needs in a residential treatment,” Cleary said about why gender-related discrepancies exist in juvenile services.
The supply of programming for girls is an issue of numbers and dollars. Since girls only represent 15 percent of the children in Maryland’s juvenile justice system, it is not financially feasible to have an equal number of facilities for both genders, Cleary said.
“It’s a resources issue,” he said. “It’s fair to make sure that girls get appropriate treatment and not every region has an appropriate group home for girls.”
Last year, the Department admitted 1,619 boys into residential treatment programs and only 251 girls. But advocates believe the smaller number of girls in the system is not reason to provide unequal services.
“Certainly, the population of girls in DJS is smaller than that of boys, but is significant, and a smaller population is not an acceptable basis for depriving girls of equal benefits of the law,” the American Civil Liberties Union of Maryland wrote to the Department in a Sept. 27 comment about the regulations.
Another comment submitted on behalf of several organizations pointed out that the regulations “open the door to denying an entire class of children– girls– the benefits of the law requiring regional programming simply by virtue of their gender.”
The regulations worked to refine a 2007 law guaranteeing close to home services for children in the juvenile justice system. Research shows that treatments are most effective when children stay close to home and maintain ties with their communities and families.
Maryland is divided into six regions and the law states that children can only be placed into a committed facility outside of the home region if “specialized services” necessitate the placement.
However, since it failed to define what exactly constitutes a service as “specialized,” the law granted the Department leeway for interpretation.
Advocates worked with the Department to help draft regulations to clarify the vagueness of specialized services, and in August, the Department posted them on the Maryland Register.
But advocates did not believe that the definition given to specialized services in the regulations upheld the intent to regionalize services for children, as it gives many exclusionary clauses, such as for “gender-responsive programming,” or programming for girls.
Though the Department withdrew the regulations, the term specialized services remains undefined. The Department still considers gender-responsive programming as specialized, Cleary said.
The withdrawn proposal included in its definition of specialized services programs for children with “observable, identifiable and substantial behavioral or developmental issues” and “severe or intensive behavioral, emotional, or other mental health problems.”
Cleary said few children in the juvenile justice system display “substantial” issues or “severe” problems.
But advocates said the regulations were not clear about what constitutes a disorder as severe or substantial, and the words are relative to an unclear baseline.
“The language just isn’t specific enough to provide meaningful guidance,” said Sonia Kumar, an attorney with the ACLU.
The term specialized services is intended to refer to intensive services that are needed by such a small group of youth, such as fire starters, that it is not practical to offer those services in every region.
“The way DJS is defining it, it eats away at the original rule because it excludes so many children and defeats the legislators’ intent to regionalize services,” said Angela Johnese, juvenile justice director for Advocates for Children and Youth.
But Sen. Bobby Zirkin, the sponsor of the 2007 law, recognizes that the Department needs some flexibility in the law.
“I clearly want kids treated in their own regions,” Zirkin said. “But at the end of the day, there is a fiscal reality that all resources can’t be in every region.”
The Department is reviewing the comments in deciding further action, however, there are no immediate plans to redraft regulations, Cleary said.