In West Virginia, Playing Hooky Can Get You Locked Up

West Virginia has a juvenile incarceration problem that’s costing one of the poorest states in the country millions of dollars. Families say it’s because judges are too quick to take their kids away.

West Virginia Division of Juvenile Services

Junior Smith knew he messed up.

One afternoon in December 2012, high on Vicodin he bought at school, Junior broke into a neighbor's garage after asking around to make sure no one was home — only to get caught when the neighbor, Cindy Chevechko, turned out to be there after all.

Junior said he was looking for beer, and the Cevechkos, relieved the burglar was just a 17-year-old kid, wanted him to get off easy — community service, maybe. But in a preliminary hearing on Feb. 11, 2013, West Virginia Circuit Judge Alan Moats implied that Junior had much more sinister plans.

"Now if you want to walk out of here today without chains on you had better go back to the beginning and tell me what you were doing, what you were up to," Judge Moats said at the time, according to court transcripts. "Because if I even have a suspicion that you were there to molest her, rape her, sexually assault her, you're going to go today."

Moats warned Junior that "there are no second chances" and put him on probation. Ten days later, Junior got in a fight at school — run-of-the-mill horseplay, Junior claims. He never had a chance to explain himself. The following week, the sheriff's deputy picked Junior up at school and escorted him to the state's most draconian juvenile detention center in handcuffs, according to legal documents. No one notified Junior's parents beforehand, they say.

"They took him away without warning, without even trying to figure out what happened," said Kathy Jo Smith, Junior's mother. "It felt like they just wanted him locked up."

Junior and his family didn't realize that Junior's future was in the hands of a tough-minded judge with harsh views on juvenile justice. Moats is respected by legislators and the state supreme court, and feared by constituents who call him names like "the Godfather" and "the hanging judge" in whispers and on local online message boards. The architect of a popular statewide anti-truancy initiative that preceded a sharp rise in juveniles in state custody, Moats does not seem to have much patience for kids who have made mistakes — or for parents who beg him to go easy on their kids.

"Yeah, my kids made mistakes, and all kids make mistakes, but they need to realize our system is broken," said Smith. "They look at us like we are the problem, but really families are part of the solution."

Photo Courtesy of Kathy Jo Smith

In 2010, West Virginia passed legislation that lowered the number of unexcused absences required for a student to be considered truant from 10 to 5 and raised the minimum age for ending compulsory school attendance from 16 to 17. The state also implemented a resolution that pressed school boards and judicial circuits around the country to adjudicate truant students as "status offenders," minors who commit offenses that wouldn't be considered crimes if they were adults.

Suddenly, it was way easier for kids to be truant — and it was easier for them to go to court for it, too. "The data is just shocking," said Mishi Faruqee, a Juvenile Justice Policy Strategist at the American Civil Liberties Union. "Kids are being incarcerated for truancy."

The youth confinement rate is rapidly declining in the United States, and juvenile crime has fallen along with it. But although West Virginia has one of the lowest juvenile crime rates in the country, it experienced the largest increase in youths confined to juvenile facilities of any state in the country between 1997 and 2011.

Most of those kids aren't criminals. An increasing number of West Virginia kids in out-of-home placement are status offenders, and recent data analysis by Pew Charitable Trusts suggests that the hardline approach to truancy pioneered by the state's judges — and initiated by Judge Moats — is at least partially to blame.

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