KIDS IN COURT: A CONTINUUM

Moderator: Erin Davies, Children’s Law Center

Speakers:

Tim Arnold Kentucky Department of Public Advocacy

Rebecca Ballard DiLoreto Children’s Law Center

Stephanie Vetter

Pretrial Justice Institute

Juvenile Court 101:Purpose of Juvenile Court

Hold youth accountable and keep the public safe, while

recognizing the fundamental developmental differences between youth and adults.

Juvenile Court 101:Goal of Juvenile Justice Reforms

Moving toward a “right sized” system that ensures an

individually tailored, evidence-based appropriate response

for each youth.

Juvenile Justice Reform:National Research and Trends

Moving Away From: Moving Towards:

Placing youth in locked facilities

Community-based programming alternatives

One-size-fits-all approach Assessing youth’s individualized needs and appropriate responses

“Gut feelings” about what works or what youth need

Utilizing evidence- and research-based assessments and programs

Focusing on the youth and his or her offense

Examining the underlying root causes for court involvement

Juvenile Justice Reform:Benefits

More cost-effective Proven to work effectively to

reduce recidivism, increase rehabilitation, and improve public safety

Community-based More appropriate given youths’

unique developmental needs

Juvenile Court 101:Terminology

Adult Term Juvenile Term Definition

Found guilty

Adjudicated delinquent

Court determines you committed an offense

Sentence Disposition Punishment for committing an offense

Jail Detention Pre-trial or shorter-term post-trial secure placement

Prison Youth Development Center

Post-trial secure placement

Probation Probation Part of sentence/disposition for committing crime

Parole Parole Conditional early release from a locked facility

Kentucky: Impact of Systemic Reform and Litigation

Campbell County Detention Suit – 1991 Civil Rights for Institutionalized Persons Act

(CRIPA) – 1995 Creation of Juvenile Post-Disposition Branch

(JPDB) M.K. v. Wallace Establishing juvenile advocates Connection with impact of disposition and

sentencing Creation of Juvenile Appeals Attorneys

Permitted DPA to create body of juvenile and youthful offender appellate caselaw

PART I: PRE-TRIAL DETENTION

Pre-Trial Detention: National

NO PLACE FOR KIDS

JUVENILE DETENTION

ALTERNATIVES INITIATIVE (JDAI)

Today we will provide an overview of JDAI, clarify why reform is important, what is involved and what both of us can expect

JDAI Overview

Why detention reform?

Core JDAI strategies

JDAI Results

The benefits and responsibilities of participation

THE VISION:

Youth involved in the juvenile justice system will have opportunities to develop

into healthy, productive adults . . .

JDAI is driven by a vision that seeks to change the odds for court-involved youth

JDAI Overview

Why detention reform?

Core JDAI strategies

JDAI Results

The benefits and responsibilities of participation

WHY DETENTION REFORM?

Detention Reform

Entry Point for System Reform

“Hidden Closet of System”

Crowding Crisis/Poor Conditions

Research shows that most juveniles engage in criminal behavior, but don’t continue into adulthood

Longitudinal studies begun in the 1950s show most juvenile offenders age out of criminal behavior

Researchers believe this is because the transition to young adulthood ‘cements’ bonds to society and deters most from continued criminality

SOURCE: Data from National Youth Survey analyzed by Hawkins, D., Smith, B. and Catalano, R. “Delinquent Behavior,” in Pediatrics in Review (2002: 23: 382-392); “Unraveling Juvenile Delinquency” (Glueck, 1963), with followup in “Crime in the Making” (Sampson and Laub, 1993)

Most youth age out of criminal

behavior on their own

Youth Self Reports0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

52%

34%Arrested during adolescence

Self-reported criminal activity, but not arrested

Youth Self Reporting Criminal Activity

Total = 86%

Detention leads to worse outcomes. After release, detained youth are far more likely to drop out of school and use drugs and alcohol

Using alcohol Using any illicit drug Dropping out

49%

42%

59%

34%

21%

30%

Youth who have been detained or incarcerated (post-release)Youth who have not been detained or incarcerated

Likelihood of Behavior: Incarcerated vs. Non-incarcerated Youth

Youth who are detained are more than three times as likely to be found

guilty and incarcerated than similarly situated

peers

SOURCE: Office of State Courts Administrator, Florida Juvenile Delinquency Court Assessment (2003); LeBlanc, (1991), “Unlocking Learning” in Correctional Facilities, Washington, D.C.; Substance use, abuse, and dependence among youths who have been in jail or a detention center: The NSDUH report, The National Center on Addiction and Substance Abuse (CASA) at Columbia University, (2004); America’s Promise report on national rates of high school dropouts: www.msnbc.msn.com/id/23889321/.

Nationally, about one quarter of detained youth are charged with violent crimes

25%

40%

10%

25%

Offense Profiles:Detained Youth in the United States, 2010

Status Offenses and Technical

Violations

Property, Drugs, Public Order, and

Other

Simple Assaults and Misdemeanor Person Offenses

Violent Index Crimes

SOURCE: Sickmund, M., Sladky, T.J., Kang, W., & Puzzanchera, C. (2011). "Easy Access to the Census of Juveniles in Residential Placement.“ http://www.ojjdp.gov/ojstatbb/ezacjrp/

Arrests for serious crimes do not explain detention use; local policies and practices are key

1997 1999 2001 2003 2006 2007 2010

2,581

1,926 1,747

1,619 1,484 1,525

1,294

INDEX ARRESTS PER 100K YOUTH

Index arrests have declined by 50% …

(with half the decrease occurring before 2000)

1997 1999 2001 2003 2006 2007 2010

89 8983

78 78 75

61

DETENTIONS PER 100K YOUTH

…but detention has only declined by 31%

(with half the decrease occurring after 2007)

NOTE: Index arrests are classified as more serious crimes including murder, rape, robbery, aggravated assault, burglary, larceny, motor vehicle theft, and arson. Juvenile arrest figures based on annual count of arrests from the FBI’s Uniform Crime Report (UCR) system; detention figures based on a one-day count through the Census of Juveniles in Residential Placement (CJRP).

SOURCES: Puzzanchera, C., Adams, B., and Kang, W. (2012), "Easy Access to FBI Arrest Statistics 1994-2009 “ http://www.ojjdp.gov/ojstatbb/ezaucr/ ; Sickmund, M., Sladky, T.J., Kang, W., & Puzzanchera, C. (2011). "Easy Access to the Census of Juveniles in Residential Placement.“ http://www.ojjdp.gov/ojstatbb/ezacjrp/ ; Federal Bureau of Investigation (2011). “Crime in the United States 2010”, table 36. http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/index-page; Puzzanchera, C., Sladky, A. and Kang, W. (2012). "Easy Access to Juvenile Populations: 1990-2011.“ http://www.ojjdp.gov/ojstatbb/ezapop/

Youth of color are an increasing share of the total detained population

1997 1999 2001 2003 2006 2007 2010

62.5% 62.6% 62.1%

64.9%

68.9% 69.4%71.2%

Youth of Color as a Percentage of Total U.S. Detained Population

SOURCE: Sickmund, M., Sladky, T.J., Kang, W., & Puzzanchera, C. (2011). "Easy Access to the Census of Juveniles in Residential Placement.“ http://www.ojjdp.gov/ojstatbb/ezacjrp/

JDAI Overview

Why detention reform?

Core JDAI strategies

JDAI Results

The benefits and responsibilities of participation

JDAI uses eight interconnected strategies to enable jurisdictions to safely reduce reliance on secure detention

Collaboration

Use of accurate data

Objective admissions criteria and instruments

Alternative to detention

Case processing reforms

Reducing the use of secure confinement for ‘special’ cases

Deliberate commitment to reducing racial disparities

Improving conditions of confinement

To demonstrate that jurisdictions can establish more effective and efficient systems to accomplish the purposes of juvenile detention.

PURPOSE:

1) Eliminate inappropriate or unnecessary use of secure detention

2) Minimize failures to appear and incidence of delinquent behavior

3) Redirect public finances to successful reform strategies

4) Improve conditions in secure detention facilities

5) Reduce racial and ethnic disparities

OBJECTIVES:

CORE STRATEGIES:

JDAI Overview

Why detention reform?

Core JDAI strategies

JDAI Results

The benefits and responsibilities of participation

As of 2012, JDAI sites had reduced detention populations by 43%

-100%

-80%

-60%

-40%

-20%

0%

20%

40%

ADP− 43%

Change in Average Daily Population (ADP) by GranteeBaseline vs. 2012

N=38 grantees, comprising 112 sites(Grantees shown in ascending order by percentage change in ADP)

3,173 fewer youth are being held in secure detention on an average day as compared to the grantees’ baseline years

As of 2012, JDAI sites as a whole had reduced their use of confinement by well over one third.

24

Decrease

in A

vg D

aily P

op (ADP)

Decrease

in S

tate

Com

mitm

ents

-44%

-42%

-40%

-38%

-36%

Changes in the Use of Confinement Across All JDAI SitesBaseline vs. 2012

N=38 grantees, comprising 112 sites

-43%

-39%

-43%

25

Over comparable periods of time, JDAI sites have reduced secure detention of youth of color by much more than the nation

as a whole

-70%

-60%

-50%

-40%

-30%

-20%

-10%

0%

-54%

-43%-38%

-23% -22%-18%

-14%-19%

-15%

n/a

JDAI change in Youth of Color Average Daily Population in Detention from baseline year to 2011National change in Youth of Color Detained Population from baseline year to 2010

Youth Of Color In Secure Detention: JDAI vs. National Trends

N for JDAI = 89 sites

JDAI site baseline yrs. 1994-1998 2001-2003 2004-2006 2007-2009 2010-2011

National baseline yr. 1999 2003 2006 2007 n/a

1,647.6 1,458.7 787.7

5,281.3 5,886.1

3,199.2

Youth of Color

All Other Youth

+ 11%

− 11%

− 46%

− 46%

Change in Average Daily Population (ADP) in JDAI Sites from Baseline to 2012for Youth of Color and All Other Youth

N=99 sites from which complete ADP and YOC ADP data were received & for which Baseline and 2012 population data could be obtained

JDAI sites have significantly reduced detention for white youth and youth of color. However, large racial and ethnic disparities persist.

Reductions in detention and commitments have not hurt public safety: JDAI sites report reductions in all four juvenile crime indicators

Delinquency Petitions (12 sites)

Felony Petitions (53 sites) Juvenile Arrests (24 sites) Juvenile Intake Cases (20 sites)

0

10,000

20,000

30,000

40,000

50,000

60,000

70,000

80,000

24,985

64,247

40,517

73,474

13,629

36,530

27,065

52,014

Baseline 2012

• 45% fewer Delinquency Petitions• 43% fewer Felony Petitions Filed

Aggregate Reductions in Juvenile Crime Indicator TypeBaseline vs. 2012

N=109 sites

• 29% fewer Juvenile Intake Cases• 33% fewer Juvenile Arrests

WA

OR

CA

ID

NV

AZ

MT

NM

TX

MO

IA

MN

IL IN

LA

MS AL GA

FL

VA

RI

NJDEMDDC

NH

HI

MA

ME

OH

SD

NE

WY

TN

WI

KS

NY

KY

PA

State Site w/ Pending Tribal Launch Model Site County Site State Site

AR

By the end of 2013 JDAI will be in 39 states plus the District of Columbia.

29

JDAI Overview

Why detention reform?

Core JDAI strategies

JDAI Results

The benefits and responsibilities of participation

WHAT JDAI PARTICIPATION PROVIDES

Small cash grant (for travel & coordination)

Technical Assistance JDAI Tools, Guides & Publications JDAI Model Sites JDAI Training Seminars JDAI National Conferences JDAI Network & Peers

30

JDAI provides sites with a variety of resources to support detention reform

WHAT JDAI PARTICIPATION REQUIRES

Implementation of JDAI core strategies Fidelity to the model Determined leadership Data reporting Communication and Transparency with

Foundation

31

However, there are specific expectations for all JDAI sites

www.jdaihelpdesk.org

32

www.aecf.org/MajorInitiatives/JuvenileDetentionAlternativesInitiative.aspx

OR

Additional Resources

These are Our Children

Pre-Trial Detention: Kentucky

Pre-Trial Detention: Basic Rules KRS 610.200(6) – The minimum age for

detention is 11, unless charged with a Class A or B felony.

KRS 610.200(5) – Pre-hearing detention not permitted without approval of CDW.

KRS 610.265(1) – Status offenders in detention must have detention hearing within 24 hours; public offenders must have detention hearing within 48 hours.

Pre-Trial Detention: Basic RulesKRS 610.280 – The court is required to make two findings prior to authorizing detention.

Probable cause that the offense was committed.

Detention is warranted in light of the seriousness of the alleged offense, the possibility that the child would commit and offense dangerous to himself or the community, the child’s prior record, and whether there are other charges pending against the child.

Pre-Trial Detention: Basic Rules KRS 610.265(5) – If the court fails to hold

a hearing in the timeframe provided by the statute, the child “shall be released.”

KRS 610.290(2) – Child is entitled to counsel at the detention hearing, and may challenge the results of detention hearing through writ of habeas corpus.

Pre-Trial Detention: Status Offenders

KRS 610.265(3)(c) – Maximum time in secure detention after detention hearing is 48 hours.

If not accused of violating a valid court order, must be placed in non-secure detention.

If accused of violating a valid court order, then must have adjudication hearing (more on this in discussion of status offenders)

Pre-Trial Detention: Public Offenders

Detention (secure or non-secure) never required, but can occur for almost any public offender.

KRS 610.265(3)(a) – If ordered detained, child accused of a capital offense or Class A or B felony must be securely detained.

KRS 610.265(3)(b) – All other public offenders may be approved to go to a non-secure detention alternative.

PART II: STATUS OFFENDERS

Status Offenders: National

Status Offenders: National Research- or Evidence- Based Trends

Moving Away From: Moving Towards:Detaining status offending youth, including for their own protection

Placing youth in community-based programming

Solely addressing the youth and his or her offense

Addressing the underlying root causes of the offense (family issues, education needs, etc.)

Formally processing status offending youth in courts

Diverting youth from the juvenile court system, including into other, more appropriate systems (i.e. child welfare or mental health)

Youth being pushed into juvenile justice system from schools (aka school-to-prison pipeline)

Addressing youth behavior in the school setting (i.e. PBIS, restorative justice)

Status Offenders: Kentucky

Status Offenders: Right to Counsel Pre-2001: Many status offenders not

appointed counsel 2001: Ky Court of Appeals rules that

status offender could not waive counsel without first talking with counsel. D.R. v. Commonwealth, 64 S.W.3d 292 (Ky.App., 2001)

2002: KRS 610.060 amended to require appointment of counsel in all cases where detention is possible outcome.

Status Offenders: Requirements for All Cases

Admission of guilt must comply with requirements for guilty pleas under Boykin v. Alabama. D.G. v. Commonwealth, 355 S.W.3d 476 (Ky.App.,2011.)

Child can be committed to cabinet if the evidence shows that that less restrictive alternatives were attempted or are not feasible. J.S. v. Commonwealth, 304 S.W.3d 67 (Ky. App. 2009)

Court may not impose disposition which lasts past 18th birthday. J.K.B. v. Commonwealth, 336 S.W.3d 917 (Ky.App.,2011.)

Status Offenders: Truancy Cases

Truancy case cannot be heard without DPP report. T.D. v. Commonwealth, 165 S.W.3d 480 (Ky. App. 2005).

Report generally must include home visit. N.K. v. Commonwealth, 324 S.W.3d 438, (Ky.App.,2010.)

Compliance with this requirement is jurisdictional. S.B. v. Commonwealth, 396 S.W.3d 928 (Ky. App. 2013).

Status Offenders: Contempt

Order entered pre-adjudication not a “valid court order” for contempt purposes. M.A.M. v. Commonwealth, 402 S.W.3d 546 (Ky.App. 2013).

Juvenile is entitled to notice of violations prior to contempt proceedings, and an opportunity to respond. K.F. v. Commonwealth, 274 S.W.3d 457 (Ky. App. 2008).

Status Offenders: Contempt Ctnd.

KRS 610.265(3)(d) – If accused of violating valid court order court must have an adjudication hearing where the court . . . affirms that the order is a valid court order, finds the child to have violated the order (beyond a

reasonable doubt). If findings made, child may be detained 48 more

hours for court to receive and review a report prepared by appropriate state agency and must find that all other options have been exhausted or are not feasible before ordering continued detention.

PART III: PUBLIC OFFENDERS

Public Offenders: National

Public Offenders: National Research- or Evidence- Based Trends

Moving Away From: Moving Towards:

Placement in juvenile correctional facilities

Incentivizing courts to place youth in community-based alternatives

Long sentences in juvenile correctional facilities

Shorter-term sentences in correctional facilities, if at all

Focusing on the youth and the offense

Addressing root causes for behavior (i.e. trauma, substance abuse, mental health needs)

Long-term collateral consequences (i.e. sex offense registration)

Minimizing the long-term impacts of juvenile court involvement

Public Offenders: Kentucky

Public Offenders: School Confessions

Child entitled to Miranda warnings prior to interrogation by assistant principal and school resource officer. N.C. v. Commonwealth, 396 S.W.3d 852 (Ky. 2013)

Child’s statement given to law enforcement while in school involuntary, interrogation in school setting is inherently coercive. Commonwealth v. Bell, T.C., 365 S.W.3d 216 (Ky.App. 2012).

Confession given to law enforcement not coerced or in violation of Miranda, where child was told that he was free to leave and therefore was not “in custody.” C.W.C.S. v. Commonwealth, 282 S.W.3d 818 (Ky. App. 2009)

Public Offenders: Confessions to Non-Law Enforcement

Child entitled to Miranda warnings in sex offender treatment program, where it was a virtual certainty that information obtained by counselors in program would be delivered to law enforcement. Welch v. Commonwealth, 149 S.W.3d 407 (Ky. 2004).

Child entitled to Miranda warnings prior to juvenile sexual offender evaluation, as statements were certainly going to be used in disposition. Commonwealth v. M.G., 75 S.W.3d 714 (Ky. App. 2002).

Public Offenders: Use of Detention -Disposition

Child over 18 cannot be detained as a disposition for a public offense. D.R.T. v. Commonwealth, 111 S.W.3d 392 (Ky. App. 2003).

Child under 14 cannot be given detention as a disposition, even if it is probated. N.T.G. v. Commonwealth, 185 S.W.3d 218 (Ky. App. 2006)

Public Offenders: Use of Detention - Contempt

Child may be found in contempt for violation of a juvenile probation order, and given more time for the contempt than what was originally probated. A.W. v. Commonwealth, 163 S.W.3d 4 (Ky. 2005).

Child may be found in contempt for violating a juvenile restitution order, even if child is now well into adulthood. Commonwealth v. S.K. et al., 253 S.W.3d 486 (Ky. 2008).

Public Offenders: Procedural Rights As with status offenders, public offender

admissions must comply with requirements for adult guilty pleas under Boykin v. Alabama. J.D. v. Commonwealth, 211 S.W.3d 60 (Ky. App. 2006).

Common law “infancy” defense rejected – Commonwealth is not required to prove that the juvenile had the capacity to understand the criminality of the offense; all that is required is proof of elements beyond a reasonable doubt. W.D.B. v. Commonwealth, 246 S.W.3d 448 (Ky. 2007)

Public Offenders: Dispositions Court must find commitment to be the “least

restrictive alternative.” X.B. v. Commonwealth, 105 S.W.3d 459 (Ky. App. 2003)

Sex offender entitled to continuance to obtain independent sex offender assessment. N.L. v. Commonwealth, 323 S.W.3d 732 (Ky. App. 2009).

Requirements of KRS 533.050 applies to juvenile probation revocation; child entitled to written notice of violations and opportunity to be heard in defense. Q.C. v. Commonwealth, 164 S.W.3d 515 (Ky. App. 2005)

Public Offenders: Collateral Consequences

Commonwealth may take DNA of juvenile public offenders who have been adjudicated of a felony, for permanent storage on state and federal DNA database. Petitioners F et al. v. Brown, 306 S.W.3d 80 (Ky. 2010).

PART IV: YOUTHFUL OFFENDERS

Youthful Offenders: National

Youthful Offenders: National Research- or Evidence- Based Trends

Moving Away From: Moving Towards:Prosecuting youth in adult court

Retaining youth in juvenile court, including through blended sentencing

Placing youth in adult jails and prisons

Placing youth in juvenile detention and correctional facilities

Potential for mandatory transfer and extreme sentences, including death and life without parole

Individualized transfer assessments, sentencing, and meaningful release review

Same court rules and standards for youth and adults

Accounting for developmental differences between youth and adults, including in courts and facilities

Youthful Offenders: Kentucky

Youthful Offenders: Requirement of a Hearing

Child may waive transfer hearing, but waiver must be knowing, voluntary and intelligent. Humphrey v. Commonwealth, 153 S.W.3d 854 (Ky. App. 2004).

Rules of evidence do not apply at a juvenile transfer hearing. Barth v. Commonwealth, 80 S.W.3d 390 (Ky. 2001)

Youthful Offenders: Requirements for Discretionary Transfer

Decision about whether to transfer juvenile under KRS 640.010 (the “eight factors test”) must be supported by substantial evidence. Stout v. Commonwealth, 44 S.W.3d 781 (Ky. App. 2001).

Child cannot be charged with felony as a “second or subsequent” offense based on prior juvenile adjudications. Phelps v. Commonwealth, 125 S.W.3d 237 (Ky. 2004)

Youthful Offenders: Requirements for Automatic Transfer

Juvenile may not be tried as an adult for mere possession of a firearm. “Use of a firearm” is required under KRS 635.020(4), and possession does not equal use. Darden v. Commonwealth, 52 S.W.3d 574 (Ky. 2001)

It is sufficient for automatic transfer statute that a firearm was used by somebody other than the juvenile defendant if juvenile could reasonably have known of use. K.R. v. Commonwealth, 360 S.W.3d 179 (Ky. 2012.)

Commonwealth not required to provide discovery in automatic transfer proceeding. Commonwealth v. Deweese, 141 S.W.3d 372 (Ky. App. 2003).

Youthful Offenders: YO Sentencing Youthful Offender entitled to have PSI

done by Department of Juvenile Justice, rather than Probation and Parole. Gourley v. Commonwealth, 37 S.W.3d 792 (Ky. App. 2001)

Juvenile entitled to a meaningful opportunity to be heard on issue of probation at his 18 year old hearing. Commonwealth v. Jeffries, 95 S.W.3d 60 (Ky. 2002).

Youthful Offenders: YO Sentencing – Lesser Offenses

Where transferred youth is convicted of non-transferrable offense after trial, s/he entitled to be sentenced by circuit court as a juvenile. Cantor v. Commonwealth, 843 S.W.2d 330 (Ky. 1992).

Where transferred youth is convicted of non-transferrable offense as a result of plea, s/he is entitled to be sentenced by circuit court as a juvenile unless s/he waives that right as part of the plea. Chipman v. Commonwealth, 313 S.W.3d 95 (Ky. 2010)(waiver not sought by Commonwealth at sentencing, remanded for sentencing as juvenile); Kozak v. Commonwealth, 279 S.W.3d 129 (Ky. 2008)(Commonwealth sought adult sentencing, remanded for entry of waiver).

Youthful Offenders: Violent Offender Act

Violent offender act prohibition on probation does not apply to youthful offenders. Commonwealth v. Merriman, 265 S.W.3d 196 (Ky. 2008)

Violent offender act prohibition on parole does apply to youthful offenders. Edwards v. Harrod, 391 S.W.3d 755 (Ky. 2013).

Constitutional challenge not yet considered based on SCOTUS line of cases (i.e. Miller, Roper, Graham, and J.D.B.).