"01 15 10 MtgMinsLegalIssWkgrp"
MINUTES OF THE YOUTH ACCOUNTABILITY PLANNING TASK FORCE LEGAL ISSUES WORKING GROUP RALEIGH, NC January 15, 2010 The Legal Issues Working Group of the Youth Accountability Planning Task Force met on Friday, January 15, 2010, at the Judicial Center Conference Room in Raleigh, North Carolina. Task Force Members Present: Senator Eleanor Kinnaird (Co-Chair, NC Senate), Representative Shirley Randleman (Co-Chair, NC House of Representatives), Honorable Bradley Letts (Superior Court Judge), Senator Floyd McKissick (NC Senate), Honorable James Woodall (Conference of District Attorneys), Eric Zogry (Office of the Juvenile Defender). Other Members Present: Tamar Birckhead (Co-Facilitator, UNC School of Law), Janet Mason (Co-Facilitator, UNC School of Government (SOG)), Ike Avery (Former Special Deputy to the Attorney General), Katie Cornetto (DPI), Gail Dawson (Office of the Attorney General), Jim Drennan (SOG), Kathy Dudley (Department of Juvenile Justice and Delinquency Prevention (DJJDP)), Honorable Beth Keever (District Court Judge), David Lagos (Sentencing and Policy Advisory Commission (SPAC)), John Madler (SPAC), Jo McCants (Administrative Office of the Courts), Shari Miller (Research Triangle Institute), Honorable Marcia Morey (District Court Judge), Honorable Annie Mobley (NC House of Representatives), Dr. Martin Pharr (DJJDP). Guests: Amelia Hummel (Stetson Law School), Kelly Quick (NC General Assembly), Susan Sitze (NC General Assembly). INTRODUCTION Representative Shirley Randleman called the meeting to order at 10:05 a.m., and introduced Task Force Coordinator Michelle Hall. Members of the Working Group and guests introduced themselves. Upon motion by Judge Beth Keever, members adopted the minutes of the December 10, 2009 meeting. Representative Randleman recognized Co-Facilitators Janet Mason and Tamar Birckhead. Ms. Mason reviewed the agenda (see Handout). The Working Group would determine which offenders would be subject to the jurisdiction of the juvenile court, and the circumstances in which an offender under the age of 18 would be subject to prosecution as an adult. After lunch, members would consider how to treat motor vehicle offenses and infractions. I. Offender Population Ms. Mason explained several ways, other than age, of limiting the offender population subject to juvenile court jurisdiction (see Handout). Such limits could be established by (1) defining “juvenile” to exclude certain persons under the age of 18, (2) prescribing certain limits on the juvenile court’s jurisdiction, such as the “once an adult always an adult” provision in G.S. 7B-1604(b), or (3) providing for the transfer of certain cases to adult court upon a finding of probable cause. In addition to the various types of juvenile transfer statutes (see Handout), some 1 states allowed prosecutors to exclude cases through “direct file” in adult court. In deciding whether to exclude certain cases involving 16- and 17-year-olds from juvenile court, the Working Group would need to decide whether these cases should originate in juvenile court and be transferred, or originate in adult court. Other options included granting the adult court or prosecutor the authority to remand cases back to juvenile court (“reverse waiver”), or allowing for “blended sentencing” of young offenders in either juvenile or adult court. Members discussed whether to expand the current mandatory transfer provision that applies to Class A felonies. Eric Zogry noted that the Working Group had previously discussed transferring Class B through E felonies committed by 16- and 17-year-olds. Ms. Mason asked the group to consider whether these cases should originate in juvenile court or should be defined out of the court’s jurisdiction. Senator Floyd McKissick and Judge Beth Keever favored a process in which the charge would begin in juvenile court and transfer into adult court after a finding of probable cause. To require a pre-charge determination by the prosecutor, without the benefit of an investigation, would defeat the purpose of raising the juvenile age. Ike Avery asked whether a different procedure should apply for homicide cases. Mr. Zogry replied that a homicide case could start out as a Class B2 felony charge and become a Class F felony by the time of the probable cause hearing. Judge Bradley Letts agreed that the probable cause hearing will often reveal the proper charge in a case. At Ms. Birckhead’s request, Ms. Mason reviewed the protections that 16- and 17-year- olds would enjoy under the jurisdiction of the juvenile court. Shari Miller added that most juveniles return home pending adjudication, with only a small percentage held in detention for an extended period – a fact related to the juvenile court’s power to compel parental involvement in a case. Mr. Zogry pointed out that, unlike adult court, a juvenile’s right to counsel does not attach until a petition is filed. Ms. Mason also explained that magistrates play no role in juvenile court. Jurisdiction is triggered by the court counselor’s approval of a petition for filing. Kathy Dudley emphasized that originating all 16- and 17-year-olds in juvenile court would cause a substantial increase in the intake process. Some jurisdictions would find it difficult to processing this influx of cases, particularly during non-business hours. Judge Keever cited detention space as another resource issue. Ms. Miller observed that law enforcement would face similar pressures, because of the additional time required to process a juvenile case. Judge Morey requested data on the number of criminal cases per year involving 16- and 17-year-old defendants. John Madler indicated that the Sentencing and Policy Advisory Commission had received similar data requests from the other working groups and would be presenting this information at the Task Force’s February meeting. Motion: Judge Morey made a motion that all non-motor-vehicle offenses committed by a 16- or 17-year-old person would originate in juvenile court. Judge Keever seconded the motion. The motion carried, with James Woodall and Ike Avery opposed. II. Exclusion or Transfer of Serious/Violent Offenses Mr. Zogry outlined a proposal for the presumptive transfer of 16- and 17-year-old juveniles who are charged with Class B1 through E felonies. He explained that 12 or 13 states 2 have systems in which the juvenile court’s jurisdiction is presumptively waived (and the juvenile transferred to adult court) upon a finding of probable cause if the case meets certain criteria as to the severity of the charge, the juvenile’s age, and/or the juvenile’s prior record. Once probable cause is found, the burden shifts to the juvenile to show why the case should not be transferred. In order to avoid the presumptive transfer, the juvenile would have to show by clear and convincing evidence that (1) the juvenile was amenable to treatment available in the juvenile system, and (2) public safety would be better served by keeping the case in the juvenile system. The hearing would be less involved than a full-blown transfer hearing and would be subject to waiver by the juvenile. Mr. Zogry clarified that the current system of mandatory transfer for Class A felonies would remain in place, and that 16- and 17-year-olds charged with a Class F through I felony would be subject to the existing transfer procedures. Ms. Mason raised several issues related to presumptive transfer. Unlike the current transfer provision which is relatively simple, a system that takes a juvenile’s prior record into account would be difficult to apply. Presumptive transfer may also compromise a juvenile’s Fifth Amendment privilege against self-incrimination, given the juvenile’s burden of proof in rebuttal. Finally, the Working Group would need to address the question of where to place the juveniles who were detained in these cases prior to trial. Judge Morey and Judge Letts supported retaining the current transfer system, without a presumption of transfer or the attendant burden-shifting to the juvenile. They argued that an age- based presumptive transfer was contrary to the policy decision to raise the juvenile age. Given this policy change, Judge Letts believed the presumption should lie in favor of treating 16- and 17-year-olds as juveniles. The juvenile court has more dispositional options available to meet the needs of these offenders. Moreover, juvenile transfers come into the adult system as first- offenders, often receiving just a short period of probation. Judge Letts expressed concern about the lifetime barriers faced by a 16- or 17-year-old with a felony record. Mr. Zogry did not oppose preserving the current transfer statute. Although it would place an additional burden on the courts, he did not foresee a great difference in outcomes. Ms. Miller asked about the practicality of proving amenability to treatment, and how to balance this factor with public safety. She noted that presumptive transfer cases would involve older, repeat offenders committing more serious offenses. This population required more intensive treatment options than were presently available. Judge Morey suggested that the inherent nature of 16- and 17-year-old serious offenders militates against leaving them in the juvenile system. This group will often have already had chances at treatment. Dr. Martin Pharr responded that older youth are typically more amenable to cognitive-behavioral interventions than their younger counterparts. However, there is a small subgroup of youth with physiology- based conduct disorders who are incapable of empathy and effectively untreatable. Ms. Mason asked if it is possible to identify this type of sociopathic personality at the transfer stage. Dr. Pharr responded that assessments cannot reliably predict which youth who exhibit sociopathic traits will benefit from treatment and which will continue to engage in antisocial behavior in adulthood. However, the Department is working toward providing appropriate treatment recommendations at the front end of the juvenile system based on assessment data, by focusing on a young person’s needs rather than his or her acts. 3 Judge Morey stated that the existing multi-factor transfer analysis will adequately take the older juveniles’ ages into account. She characterized the proposed burden-shifting as both unnecessary and contrary to the courts’ actual process in making these types of decisions. Mr. Woodall urged the Working Group to treat Class A through E felonies committed by 16- and 17-year-olds as adult crimes. He predicted that any system which failed to treat these violent felonies differently than typical juvenile acts would be unacceptable to district attorneys, law enforcement, victims’ rights groups, and the public. Asked by Judge Morey whether the current factors for transfer would be sufficient to address these concerns, Mr. Woodall indicated that prosecutors and law enforcement would want at least a presumption of transfer. Judge Morey saw merit in satisfying these groups with regard to the relatively small number of violent felons, if doing so would facilitate raising the juvenile age to 18. The focus of the legislation should be the large number of 16- and 17-year-old misdemeanants and low-level felons who will benefit from being treated as juveniles. Senator Eleanor Kinnaird asked about cases in which a Class A through E charge is reduced after the transfer has occurred. Mr. Woodall replied that the original charge need not control. Mr. Zogry emphasized that the statute would have to be changed if it was going to allow the amending of a juvenile petition after transfer. Judge Keever observed that current law does not limit the ability to reduce a juvenile charge. Mr. Zogry noted that the issue does arise, although the statutes do provide for amending a petition so long as the juvenile’s right to notice is preserved. Agreeing that the issue comes up with some frequency, Jo McCants recommended providing explicit statutory authority for reducing juvenile charges. Senator Kinnaird asked the Working Group to develop statutory language which could be introduced in the legislature to resolve this issue. Ms. Mason asked members whether there should be a fail-safe provision which would allow the adult court, based on information that emerged during the trial, either to remand a case back to juvenile court or impose a juvenile disposition in lieu of an adult sentence. Judge Letts questioned whether superior court judges should be expected to master the intricacies of juvenile dispositions. Mr. Woodall pointed out that some felons are currently remanded to drug treatment court. Furthermore, he agreed that defense counsel will sometimes withhold evidence relevant to disposition -- such as the defendant’s diminished capacity -- until sentencing. Mr. Woodall did not anticipate strong objection from prosecutors if the superior court were given the discretion to remand back to juvenile court in appropriate cases. Judge Keever asked if a remanded case would still result in a criminal conviction. If so, she deemed it preferable to have a full vetting of the juvenile’s suitability for adult prosecution at the initial transfer hearing, rather than after-the- fact. Ms. Mason replied that a blended sentencing system would result in an adult conviction, while a true reverse transfer would result in a juvenile adjudication. Judge Morey foresaw a potential problem with district and superior courts making conflicting decisions about transfer at different stages of the same case. Moreover, such a system would create unacceptable delays. Ms. Mason noted that reverse transfer was more typical in those states with either mandatory transfer or direct file. Motion: Judge Morey moved to preserve the current mandatory transfer, upon a finding of probable cause, of any juvenile charged with committing a Class A felony when the juvenile was 4 at least 13 years of age. Senator McKissick seconded the motion, which passed unanimously. Returning to Mr. Zogry’s presumptive transfer proposal, Ms. Birckhead suggested using the existing statutory language regarding the juvenile’s amenability to treatment and the interests of public safety found in subsections (b)(6) and (8) of the transfer statute, G.S. 7B-2203. Judge Keever also preferred to use language that juvenile court judges were already accustomed to applying. Ms. Mason expressed concerns about the juvenile’s ability to meet the burden of proof as to public safety. She further believed that the criterion assessing the juvenile’s amenability to treatment should focus on the characteristics of the juvenile, rather than on the infrastructure found in the juvenile system. Mr. Woodall believed the proposal would not satisfy the state’s prosecutors and law enforcement community. There groups would want cases involving Class A through E felonies committed by 16- and 17-year-olds to be handled in adult court. Ms. Morey asked if these constituencies would accept mandatory transfer upon a finding of probable cause, with the possibility of remanding back to juvenile court for disposition after a finding of guilt. Mr. Woodall replied that the district attorneys would be satisfied with this system, because it would essentially preserve the status quo for these offenses while providing the adult court with an additional dispositional tool in certain cases. He was uncertain of law enforcement’s response to such a system. Gail Dawson asked about the case of an 18-year-old (or older) defendant who committed an act at age 17. How long would the juvenile court’s dispositional jurisdiction last, if the adult court remanded for a juvenile disposition. Judge Keever agreed that by the time of a jury verdict or guilty plea in adult court, a transferred defendant will often be over 18 years of age. Given the delays inherent in trying a case in adult court and then remanding back to juvenile court, the offender would no longer belong in the juvenile system. It made more sense to allow the adult court to enter aspects of a juvenile disposition. While acknowledging the political considerations expressed by other members, Mr. Zogry insisted that the juvenile court is in a better position to make judgments about juvenile dispositions. Unlike the adult court, the juvenile court is often familiar with the juvenile and has access to the juvenile’s record. Moreover, unless jurisdiction shifts back to the juvenile court, a person convicted in adult court will have a felony record. Ms. Miller suggested that juvenile courts will face enough challenges trying to manage an influx of 16- and 17-year-old offenders, without having the additional burden of supervising 18- and 19-year-olds whose cases finally worked their way through the adult court. Representative Randleman emphasized the importance of juvenile confidentiality, which is lost once a case is transferred to adult court. Members discussed options for a less rigid system of mandatory transfer. Judge Morey proposed allowing the juvenile court to retain jurisdiction if exceptional circumstances were found. Ms. Birckhead suggested limiting mandatory transfer to those juveniles with prior adjudications of delinquency. She acknowledged potential difficulties in adding a juvenile record criterion, inasmuch as juvenile records are maintained at the county level. Mr. Woodall objected to a prior record requirement and argued that the seriousness of a Class A through E felony warranted transfer irrespective of the juvenile’s record. He cited robbery with a dangerous weapon as an example of the offenses within this group. 5 Mr. Zogry reminded members that his presumptive transfer proposal would include the “once an adult, always an adult” concept in the current Juvenile Code. Review of the transfer decision would be limited to an abuse of discretion standard on appeal. Ms. Miller offered her support for presumptive transfer but reiterated that the focus of the bill to raise the juvenile age is the larger pool of 16- and 17-year-old low-level offenders. Ms. Birckhead objected to mandatory transfer, raising the prospect of a 16- or 17-year-old juvenile who is charged with a Class E sex offense based on consensual sexual activity with another juvenile. Members discussed what would happen to a transferred juvenile whose charge is reduced to a non-Class A through E felony after bind over. Mr. Woodall believed that such cases should be sent back to juvenile court. Mr. Avery added that prosecutors should be granted the discretion to amend the petition. Motion: Judge Morey moved for the mandatory transfer of any juvenile charged with committing a Class B1 through E felony while the juvenile was 16 or 17 years of age, upon a finding of probable cause by the juvenile court. The juvenile court would retain jurisdiction only upon a motion by the prosecutor and a finding by the court of exceptional circumstances. Senator Kinnaird seconded the motion. The motion carried but was opposed by Ms. Birckhead, Ms. Miller, and Mr. Zogry. Representative Randleman temporarily adjourned the meeting for lunch at 12:10 p.m., and called the meeting back to order at 12:40 p.m. David Lagos reviewed the votes taken by the Working Group during the morning session. Members resumed discussion of the mandatory transfer mechanism. Mr. Zogry suggested allowing the juvenile’s counsel, not just the prosecutor, to file a motion claiming exceptional circumstances. Judge Morey believed that such a rule would effectively convert the system into one of presumptive transfer, because all juvenile attorneys would file the motion in order to avoid a claim of ineffective assistance of counsel. Judge Letts proposed limiting the grounds that could be raised in an exceptional circumstances motion. Mr. Zogry suggested allowing the juvenile to waive the issue. Senator McKissick expressed support for some additional means of avoiding mandatory transfer which did not depend upon action by the prosecutor. Judge Morey noted that a transferred case could still result in reduced charges, plea negotiations, or an acquittal. Mr. Zogry responded that a transfer would result in an adult conviction and the loss of juvenile confidentiality. Because the Working Group had already voted to approve mandatory transfer, Judges Keever and Morey asked members to move on, rather than bog down in details that could be addressed later. Ms. Mason raised the possibility of addressing some of members’ concerns through expunction, another area the Working Group was tasked to examine. The Working Group next discussed whether to establish a 30-day period between the probable cause determination and the mandatory transfer, in order to allow the juvenile to bring evidence of exceptional circumstances to the prosecutor. Though they deemed it inappropriate to require a specific waiting period, members wanted to ensure an opportunity for dialogue prior to transfer. Mr. Zogry cited the interval between the first appearance and probable cause hearings as 6 suitable for this purpose. Judges Keever and Morey explained that the juvenile court is allowed to continue the probable cause hearing for up to 120 days. Mr. Avery added that if the parties realize the transfer issue will be resolved at the probable cause hearing, they will adjust their preparations accordingly. III. Exclusion of Other Categories Ms. Mason called upon Jim Drennan, who presented court data on traffic and motor vehicle offenses under Chapter 20 of the General Statutes (see Handouts). He outlined the potential barriers to bringing motor vehicle offenses under the jurisdiction of the juvenile court. Motor vehicle cases accounted for 75% of the 2.4 million cases in district court in Fiscal Year 2008-09. A third of these cases fell within the evolving list of “waivable offenses” maintained by the Conference of Chief District Court Judges, which allowed defendants to waive a court appearance and plead guilty by mail. Mr. Drennan also provided data on the 104,000 16- and 17- year-olds who were charged with Chapter 20 offenses in 2008, including 40,000 charged with speeding, 13,000 charged with seat belt violations, and 500 charged with impaired driving. Absent some type of exclusion for these offenses, an increase in the juvenile age to 18 would bring these 104,000 offenders into juvenile court. Mr. Drennan also noted that the Division of Motor Vehicles (DMV) and private insurers depend on information about these convictions, which would be confidential if adjudicated in juvenile court. DMV does not receive information about juvenile adjudications unless the dispositional order expressly restricts driving. Mr. Drennan next identified the complexities involved in crafting an exclusion from juvenile court jurisdiction. There is no statutory definition of “traffic offenses[,]” other than the evolving list of waivable offenses maintained by the District Court Judges’ Conference. Of the 20 felony offenses in Chapter 20, most pertain to commercial acts related to registry and sale of a vehicle. However, other felonies include driving to elude arrest, hit and run, and possession of a stolen vehicle. Mr. Drennan described Chapter 20 as an accretion of laws that has developed since 1937. The chapter includes offenses related to driving, driver’s licenses, commercial activity, motor vehicle inspection, and migrant worker abuse. Additional motor vehicle offenses are found in Chapters 18A and 136 of the General Statutes, as well as in local ordinances. Mr. Drennan emphasized the importance of crafting an exclusion that is both precise and not too complex, so that it may be interpreted consistently in the field by the many people who apply the state’s traffic laws. Senator Kinnaird suggested maintaining the current status quo vis a vis motor vehicle and traffic offenses. She noted that a non-felony traffic conviction does not carry the significant collateral consequences of other offenses. Mr. Avery agreed, noting that employers typically ask about an applicant’s convictions “other than traffic offenses.” Judge Morey cited Virginia as a state that processes juvenile traffic offenses in juvenile court. The money collected from these cases goes toward the funding of Virginia’s juvenile courts; and offenses are reported to DMV regardless of age. Mr. Avery noted that, unlike North Carolina’s unified court system, Virginia’s juvenile cases are handled by municipal courts. Judge Letts expressed concern about such an enormous increase in juvenile court cases. Judge Keever believed it impractical to require police officers to refer routine traffic cases to a juvenile court counselor for the filing of a petition. Mr. 7 Avery believed that law enforcement would object to this change. He also raised the prospect of having separate rules for juvenile implied consent offenses. Mr. Zogry asked about situations in which a 16- or 17-year-old who commits a traffic offense in conjunction with another criminal offense. If traffic offenses are excluded from juvenile court, the offender would have cases in the juvenile and adult systems simultaneously. Ms. Dudley noted that young offenders under the jurisdiction of the juvenile court are sometimes charged with adult felonies under the current system. Judge Keever spoke in favor of excluding the basic infractions and misdemeanor driving offenses found on the district court’s waiver list. Felonies should be carved out from the exclusion; and the statutes on implied consent offenses should be changed to add 16- and 17- year-olds. Judge Keever averred that felony possession of stolen vehicle under G.S. 20-106 is no different than many low-level felonies found in Chapter 14. Mr. Zogry reminded members that a juvenile charged with a felony under Chapter 20 would remain subject to transfer. Judge Morey advocated excluding all Chapter 20 offenses from juvenile court, with the exception of receiving or possessing a stolen vehicle under G.S. 20-106. She argued that 16- and 17-year-olds assume liability for adult behavior in exchange for the adult privilege of driving, and that the felonies in Chapter 20 involve a high level of either sophistication or dangerousness. She foresaw an unacceptable burden on law enforcement if traffic and motor vehicle offenses are made subject to juvenile court procedures. Motion: Judge Morey moved to exclude from juvenile court jurisdiction any charge brought against a 16- or 17-year-old under Chapter 20 of the General Statutes, with the exception of G.S. 20-106, Receiving or transferring stolen vehicles, which could be re-codified in Chapter 14. Mr. Avery seconded the motion. The motion carried but was opposed by Judge Keever. VI. Issues and Questions for Next Meeting Representative Randleman announced that the Working Group would next meet on the afternoon of February 11, 2010, following the meeting of the full Task Force. Ms. Birckhead added that the Working Group’s session would probably begin by 1:00 p.m., depending on the Task Force’s agenda. At the suggestion of Judge Keever, the group decided to address the topic of expunction at the February 11 meeting. Judge Letts requested the drafting of statutory language to reflect the decisions made by the Working Group. Ms. Mason reminded members to print out the attachments they received in their emails. ADJOURNMENT Chair Randleman adjourned the meeting at 2:00 p.m. Respectfully submitted, David Lagos Research and Policy Associate Sentencing and Policy Advisory Commission 8