things to know before you go to juvenile court in...

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D’lorah L. Hughes* Assistant Professor

Things to Know Before You Go to Juvenile Court in Arkansas

Juvenile Law is a niche practice.1 At-torneys new to the juvenile justice system should recognize that a com-

mand of the rules of criminal law, procedure and evidence are necessary to the practice but not sufficient. One must have a working knowl-edge of the Arkansas Juvenile Code as well as an understanding of local juvenile court prac-tice2 in order to be an effective advocate.

There are three basic types of juvenile cases in the Arkansas Court.3 The first type of case, and the subject of this article, is delinquency;4

the others are dependency-neglect5 and fam-ily-in-need-of-services (FINS)6 cases. Delin-quency cases are those where a juvenile has been charged with an act that if committed by an adult would constitute a crime.7 While this article focuses solely on issues of delinquency, it is important to be aware of the other mat-ters. Juveniles often have more than one type of case pending, and there may be an overlap in cases, or an advocate may wish to ask that a delinquency matter be handled as one of the other two.

* Assistant Professor of Law. Professor Hughes teaches the Juvenile Defense Clinic in the UA Law School Legal Clinic. The author would like to thank Ryan Culpepper for his invaluable assistance. 1. It has been called “a specialty within a specialty.” Christa Schneider & Sean McCumber, Eight Women to Watch, 20 DcBa BrieF 22, 24 (2008).2. As any practitioner is aware, a court’s preferred practices and procedures differ from locale to locale. In juvenile court, this may include rules for client visitation, assignment of duties to probation staff and order of the court’s daily calendar. For example, the court in Washington County allows attorneys to talk with their detained clients in the courtroom prior to a detention hearing or other case setting. This may not be the case in another locale in Arkansas and could lead to problems for the uninformed practitioner.3. arK. coDe ann. § 9-27-306(a)(1)(A), -(B), -(D) (Repl. 2009).4. See id. § 303(15).5. See id. § 303(18).6. See id. § 303(24).7. See id. § 303(15).

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ARKANSAS LAW NOTES 2010

This article discusses a few of the main differences between the adult criminal sys-tem and the juvenile justice system. Its goal is to provide for practitioners new to juvenile court a highlight of sources for additional as-sistance and a discussion of ongoing efforts at reform. It is in no way intended to be a com-plete reference guide to juvenile practice but rather a starting place for those interested in this specialty area.

Purpose of the Court

The juvenile justice, or juvenile delin-quency, system differs in nature and purpose from the criminal justice system familiar to law students and practitioners of criminal law.8 Unlike the adult criminal system, the primary purpose of the Juvenile Court is re-habilitation.9 Its mission is ”to assure that all juveniles brought to the attention of the courts receive the guidance, care and control, preferably in each juvenile’s own home when the juvenile’s health and safety are not at risk, that will best serve the emotional, men-tal, and physical welfare of the juvenile and the best interest of the state.”10

The Juvenile Court’s rehabilitative mis-sion does not make it any less a real court. The rules of evidence and criminal proce-dure apply.11 The potential consequences to the juvenile include the taking away of cer-tain privileges as well as the loss of personal freedom.12 Juvenile-court proceedings can be harsh, and the punishments rendered can be severe.

Juvenile courts began in response to a re-form call to protect children from the harsh-ness of adult criminal justice systems.13 These juvenile courts were rehabilitative, rather than punitive, and proceedings were informal and non-adversarial.14 Since the 1960’s, courts and advocates began pushing for greater procedural protections in juvenile courts.15 The Federal Courts began to look at the juvenile’s right to due process, noting that the informality of the court was often leading to harsher punishment and treat-ments.16 A string of Supreme Court rulings throughout the 1960’s and 1970’s applied to juveniles many of the due process rights af-forded to adults.17 With these rulings, juve-nile proceedings have become less informal and far more adversarial.18

8. See arK. coDe ann. § 302(3) (Repl. 2009) (purpose of Arkansas Juvenile Code is to protect society more effectively by focusing on rehabilitation and restitution where possible).9. Id.

10. Id. at § 302(1).11. Id. at § 325(e)-(f).12. For example, a juvenile may lose his driving privileges, id. at § 330(a)(15), or may be committed to the custody of the Division of Youth Services. Id. at § 330(a)(1)(B).13. Randy P. Ullman, Note, Federal Juvenile Waiver Practices: A Contextual Approach to the Consideration of Prior Delinquency Records, 68 ForDhaM l. rev. 1329, 1331-32 (2000).14. Id. at 1334.15. See In re Gault, 387 U.S. 1, 26 n.37 (1967).16. See, e.g., Kent v. United States, 383 U.S. 541 (1966).17. See infra text accompanying notes 13-17.18. See Marygold S. Melli, Juvenile Justice Reform in Context, 1996 wis. l. rev. 375, 390 (1996).

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THINGS TO KNOW BEFORE YOU GO TO JUVENILE COURT IN ARKANSAS

19. arK. coDe ann. §§ 9-27-301 to -366 (Repl. 2009).20. 383 U.S. 541 (1966).21. Id. at 561-62.22. Id. at 562-63.23. Id. at 561.24. 387 U.S. 1 (1967).25. Id. at 33.26. Id. at 36-37.27. Id. at 57.28. Id. at 55.29. 397 U.S. 358 (1970).30. Id. at 386.31. 403 U.S. 528 (1971).32. Id. at 545.33. 421 U.S. 519 (1975).34. Id. at 537-38.

In addition to the Arkansas Juvenile Code,19 there are a few fundamental due pro-cess cases that you should read prior to tak-ing on a juvenile case. The list below is in chronological order.

Kent v. United States20 held that a hear-ing must be granted to any juvenile facing the possibility of transfer to adult court.21 The juvenile is entitled to representation by an attorney who has been given access to the relevant documents in the govern-ment’s case file.22 The juvenile courts must also provide written rulings to allow for meaningful appellate review.23

In re Gault24 established a juvenile’s right to notice of the charges he faces, 25 his right to counsel,26 right to confront and cross-examine witnesses,27 and right to remain silent.28

In re Winship29 applied the standard of proof beyond a reasonable doubt to delin-quency matters.30

McKeiver v. Pennsylvania31 held that there is no federal constitutional right to a trial by jury for children in the juvenile delinquency system.32

Breed v. Jones33 established that dou-ble jeopardy attaches at a delinquency proceeding and this means a juvenile can-not later be tried in adult criminal court for the same offense.34

The juvenile justice system continues to evolve. As an attorney practicing in Juvenile Court you are witness to the effects the sys-tem has on the juveniles in your community and can discern what needs are going unmet. As such, you can be an integral part of re-

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35. arK. coDe ann. §§ 9-27-303(15)(A) (Repl. 2009) (defining delinquent juvenile), -306(a)(1)(A)(i) (vesting the circuit court with jurisdiction over delinquency proceedings involving juveniles ten (10) to eighteen (18) years old).36. Id. § 306(a)(1)(A)(ii).37. arK. rules oF ProF’l conDuct r. 1.8(f) (2005).38. See id. rs. 1.2(a), 1.14(a) (2005).39. Id. r. 1.14(a) cmt. (2005) (“[C]hildren as young as five or six years of age . . . are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.”). There is no minimum age to give competent testimony in Arkansas. See arK. r. eviD. 601.40. For example, the Department of Justice estimates that up to ninety (90) percent of juveniles in some jurisdictions waive their right to counsel because they don’t know what waive means. Judith B. Jones, Access to Counsel, U.S. Dep’t of Justice Office of Juvenile Justice & Delinquency Prevention, Juvenile Justice Bulletin 2 (June 2004).

form and advocacy efforts for youth. Please see the section below entitled Reform Efforts for more information on reform in Arkansas.

The Client

One of the primary considerations in ju-venile court is that the client will most likely be a minor. The Juvenile Court has jurisdic-tion over new delinquent acts committed by children ages ten (10) to eighteen (18)35 but can retain jurisdiction up to age twenty-one (21) if the child committed the act prior to age eighteen.36

It is important to remember that regard-less of who hired you, the child is your cli-ent.37 This can be a particularly difficult task as you must be clear that you work for the child while at the same time ensuring the co-operation of the parent.

Advocating on behalf of your client means that you must allow the child to make deci-sions after you have fully advised him or her. The Arkansas Rules of Professional Conduct provide that your client must be allowed the opportunity to make decisions concerning the objectives of representation so long as he or she is able to adequately act in his or her own interest.38 Do not assume incompetence based on a child’s age as the Rules contemplate chil-dren as young as five or six.39

Since the court’s purpose and focus should be one of rehabilitation, your inclination may be to look at the best interests of the child. Keep in mind that both the court and the prosecution represent the safety of the com-munity. Social workers, psychologists, proba-tion and other agencies can, and will, take into account the child’s best interest. The only voice in the courtroom that speaks di-rectly for the child is you.

Like any other client, your relationship with the child is of the utmost importance. You should carefully consider the child’s age, background and abilities before any in-teraction. While these are things that any advocate should do for a client, children lag significantly behind adults in their interpre-tation of language and ability to understand abstract concepts and terminology.40

Educating yourself about child and ado-lescent development is a great way to begin to learn how to communicate with your cli-ent. Basics tips include keeping language simple and clear. Avoid the use of legal jar-gon but do not “talk down” to the child. Ex-plain the court process and what the juvenile can expect to see and hear. Most importantly, get to know the client as a person. Ask him or her about school likes and dislikes, home life, sports and anything else you can think to ask. The more you know about your client the better able you will be to anticipate issues and negotiate dispositions.

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41. See supra note 39 and accompanying text.42. This kind of referral falls within the scope of a lawyer’s duty to render candid advice. arK. rules oF ProF’l re-sPonsiBility r. 2.1 cmt. (2005).

One piece of advice that stands above the rest is to talk with your client about how fu-ture behavior may affect the outcome of the case. Explain what is expected and the pos-sible consequences. Be extremely specific and ask if the client understands.

There are numerous resources on adoles-cent development, interviewing child clients and other related topics. Two suggestions are:

1. Nancy Eisenberg, Handbook of Child Psychology: Social, Emotional, and Personality Development (2006), and

2. Cognitive Development, Cincinnati Children’s Hospital Medical Center, http://www.cincinnatichildrens.org/health/info/growth/well/cognitive.htm (last visited June 30, 2010).

Who Else Is Involved?

ParentsWhile you may have dealt with a client’s

parents in criminal court, interacting with a minor and his/her parents can be complicat-ed. It may be difficult for a parent to under-stand how their (insert age) year-old child, though foolish enough to commit a crime, is now in charge of the lawyer and making deci-sions for trial.41

As discussed above, remember that par-ents are not your clients in matters of ju-venile delinquency and you must regularly

remind them, as well as the child, of this fact. However parents can be an ally in the case, and usually want to be. They often are just looking for help getting the child back under control, addressing a one-time issue or ac-cessing services for school or mental-health issues. If the parent is cooperative, encourage him or her to be help the child understand the process and its consequences. Use coop-erative parents as a resource for information or as information gatherers – interview them in full, have them collect letters of support from teachers and other adults who know the juvenile, and make sure they are present at all court hearings.

In the case of an uncooperative parent, first attempt to understand the reason for the parent’s attitude. Remember that par-ents are often the victims or witnesses in your child’s case, and this may cause great discomfort. There may be an underlying and significant conflict with the child or between the child and another family member, such as a step-parent. Consider interviewing the parent alone to discuss these issues to see what assistance you can offer. This may be a time where a social worker’s or therapist’s expertise may be necessary.42

Whatever their level of cooperation, the Court will likely order the parent to be pres-ent at each of the child’s appearances. A par-ent’s opinions and statements about the child will have an impact on the case, be it positive or negative. Do your best to develop a work-ing relationship with the parent.

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43. arK. coDe ann. § 9-27-308(a)(1) (Repl. 2009).44. Id. § 308 (2)(A)(i).45. See id. §§ 308(a)(2)(A)(ii) (referrals to agencies whose assistance could be helpful), -313(d)(1)(A) (referral to pros-ecutor for filing), -323(a) (diversion decision made by prosecutor in consultation with intake officer).46. See subsection 323(a), describing when a diversion decision may be appropriate. Diversion options include drug treatment programs and teen courts, and are designed to correct behavior that is particularly amenable to interven-tion. See id. § 323(e)(2)-(3).47. Failure to comply with the terms of a diversion agreement is grounds for terminating the agreement and refiling as a delinquency action. Id. § 323(g).48. The Juvenile Code provides an exception for statements made to an intake officer or probation officer during the intake process, which are inadmissible in juvenile proceedings. arK. coDe ann. § 9-27-321 (Repl. 2009). You should not rely on this exemption, however, because it does not bar derivative use of information gained in the interview.

Intake OfficersUnlike in criminal court, every juvenile

judge (or judge that hears juvenile cases) must designate at least one person as an intake officer for the court.43 The intake of-ficer receives and investigates complaints of delinquency, abuse or neglect and families in need of service.44 Often, the intake officer is the first court officer to have contact with the minor.

In most Arkansas juvenile courts, deci-sions about whether a case will be referred to another community agency in addition to or in place of a delinquency proceeding, or whether the case will be sent to the prosecutor for fil-ing are made by or in consultation with the intake officer.45 The intake officer will most likely interview the child and the parent and make the assessment as to whether the child is a candidate for diversion.46 You will prob-ably not be engaged in a case until well after this interview has taken place and a petition has been filed.

It is important to note in a case whether your client was granted an opportunity at diversion. If it appears that diversion was not offered only because a parent missed the

meeting or some similar reason, you may want to use this in negotiation with the pros-ecutor.

If a delinquency case was filed because your client did not successfully complete di-version, you should research the terms and condition of the diversion.47 Speak with your client as well as the parent about the failure to fulfill the terms. Again, depending on the nature of the failure, this may be useful to ne-gotiating a better disposition for your client.

As you proceed in a case, keep in mind that the intake officer can be a great source of information about your client. He or she sees most of the juveniles who come through the local court and may have perspective on your client’s matter or issues that could be of use to you.

Probation OfficersProbation officers in the juvenile justice

system function in much the same manner as their counterparts in adult criminal court. You must remind both the parent and juve-nile that the probation officer is an employee of the court and there is no duty of confiden-tiality.48

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49. The Juvenile Code emphasizes the importance of school attendance, and provides that regular attendance may be a condition of probation. Id. § 330(a)(4)(B).50. Any violation of probation may be reported to the prosecutor, who may file a petition to revoke probation. Id. § 339(b).51. arK. coDe ann. § 9-27-313(a)(2), -(b)(1) (Repl. 2009).52. Id. § 326(b).53. Id. § 326(a).54. Id. § 313(f).

One difference from adult court is that the probation officer will most likely attend all of the child’s court appearances, even those where there is no probation issue. As an at-torney, you can assist your client by ensur-ing that the probation officer has up-to-date school records including any excuse notes,49 and copies of anything you intend to provide the prosecutor or the court. Contact the pro-bation officer before the court date to dis-cuss their recommendations for disposition. Though they may not be willing to negotiate with you, at least you will be prepared for what they intend to present to the court.

Above all else, remind the juvenile that it is of the utmost importance that he or she attend all meetings with the probation offi-cer.50

Other PartiesThe rehabilitative nature of the juvenile

justice system—and the nature of work with children generally—mean that social work-ers, psychologists, guidance counselors, teach-ers, education specialists and others may be a part of your case. While at first this may seem burdensome or invasive, all provide expertise that may assist you in the representation of your client.

Procedural Timelines

While there are numerous differences be-tween the juvenile justice and adult crimi-

nal systems the basic procedural structure is similar. While this article is not intended to be a detailed procedural guide it is important to note one major difference in procedure, the time-line. Particularly for detained youth, the rules regarding notice to parents, filing of petitions and hearings differ significantly from adult criminal procedure. Below is a list of a few basic time requirements and the code source for the rule. Please see the Appendix for additional assistance.

NotificationWhen any juvenile is taken into custody

the officer shall make every effort to notify custodial parent or guardian of the child’s location (Section 9-27-313(a)(2) and (b)(1).51 Prior written notice of the detention hearing shall be given to the juvenile, the juvenile’s guardian or parent and the juvenile’s counsel (Section 9-27-326(b)).52

DetentionCourt must hold a detention hearing with-

in 72 hours of detention or, if the 72 hours lapses on the weekend, on the next business day (Section 9-27-326(a)).53 Discharge of the juvenile from custody is mandatory if no de-linquency petition is filed within 96 hours of detention or within 24 hours after a deten-tion hearing (Section 9-27-313(f)).54

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55. Id. § 327(b).56. arK. coDe ann. § 9-27-318(f) (Repl. 2009).57. Goss v. Lopez, 419 U.S. 565, 583-84 (1975) (holding only that due process requires giving a student who faces a short suspension an opportunity to present his version of events).58. See, e.g., Julie C. Rusby & Ted K. Taylor, A Descriptive Study of School Discipline Referrals in First Grade 2 (NIH Public Access Author Manuscript, 2007), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1828691/pdf/nihms13423.pdf.59. Pub. L. No. 108-446, 118 Stat. 2647 (2004) (codified as amended at 20 U.S.C. § 1400 (2006)).60. 20 U.S.C. § 1412(a)(1)-(5) (2006) (providing federal funding for states that provide disabled children a free ap-propriate public education including placement in a mainstream classroom environment when possible); see also arK. coDe ann. § 6-41-204 (Repl. 2009) (preferring placement in a regular educational environment).61. See 20 U.S.C. § 1412(a)(1)(B)(i) (participating states must provide services through age twenty-one unless state law sets a lower bar for public education generally), arK. coDe ann. § 6-18-202(b)(1) (providing for free public educa-tion through age twenty-one or through completion of secondary curriculum).62. See infra note 57.

AdjudicationAdjudication for juveniles, absent waiver

or good cause for continuance, shall be held not later than 14 days after detention hear-ing (Section 9-27-327(b)).55

Transfer to Adult CourtUpon a motion to transfer the case, the

court shall conduct a transfer hearing within 30 days if the juvenile is detained and no lon-ger than 90 days from the date of the motion (Section 9-327-318(f)) .56

Related Civil Proceedings

It is not uncommon for children in the juvenile justice system to be involved in pro-ceedings outside of the juvenile court. Ex-amples include special education hearings, school disciplinary proceedings, dependency/neglect matters and delinquency matters in other jurisdictions.

School disciplinary proceedings are par-ticularly common since often the delinquency matter arose out of an incident at school. Ju-veniles have only basic due process rights at these hearings since they are administrative in nature.57 Depending on the nature of the

school’s response and the timeframe, there may be little or no time between the notice given to the child’s parents and the hearing.

Even if the disciplinary matter is not di-rectly connected to your case, problems at school will impact your client and the matter before the court. Research on delinquency in-dicates that children with behavior issues or other school-related troubles are more likely to be arrested.58

As such, you should always obtain the re-cords of disciplinary proceedings, both past and present. Decisions made and information gleaned from these hearings can also affect whether your client is detained or released and what disposition the court ultimately im-poses.

Special Education hearings are governed by the federal law, Individuals with Disabil-ity Education Improvement Act (IDEA) of 2004.59 IDEA mandates that children who meet the law’s definition of impairment have a right to free, appropriate education in the least restrictive environment.60 Arkansas sets the upper age limit on services at 21.61

Like Juvenile Justice, Special Education law is a niche specialty and should not be un-dertaken without study and preferably, con-sultation with an expert.62

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63. 20 U.S.C. § 1414(d)(1)(A)(i)(I) (defining individual education program); see also arK. coDe ann. § 6-41-217 (indi-vidualized education program requirements).64. 20 U.S.C. § 1414(a)(2)(B), -(d)(4).65. See 20 U.S.C. § 1414(a)(1)(B) (2006).66. Id. § 1414(a)(1)(B), -(C)(i)(I). Regulations issued by the Department of Education provide that any person with relevant knowledge may refer a child for evaluation. 005-18-004 arK. coDe r. § 4.01.1.5 (Weil 2008).67. See, e.g., § 1414(a)(1)(D) (parental consent to initial evaluations).68. See, e.g., Kaczmarski v. Wheaton Cmty. Unitary Sch. Dist., No. 04-C-2976, 2004 WL 1093348, at *3 (N.D. Ill. May 4, 2004) (implications of IDEA’s “stay put” provision for disciplinary transfer).

If a child client appears to have education-al issues or has indicated that s/he is in special education classes you should obtain a copy of the child’s Individual Education Program or IEP. The IEP is supposed to be a detailed, written documentation of a child’s present level of academic needs, achievements, goals and the services to be provided to that child.63 If a child has an IEP you should check to make sure that it is not outdated. IDEA requires an annual IEP review and a new assessment at least every three years.64

If you suspect or the parent requests that a child client is in need of academic ser-vices, a referral must be made to the school district.65 A child’s parent or any state or lo-cal educational agency can request to deter-mine whether a child has an educationally significant disability, and once the request is received an evaluation must be completed within sixty days.66 Keep in mind that unlike in juvenile delinquency cases, the parent is the primary actor in IDEA cases and will be the client for these proceedings.67

While each child client may have differ-ent academic needs, behaviors and related mental health issues, the IEP can be a useful tool in his or her delinquency case. Detailed information about your client’s impairment may be relevant to issues of competency or intent. You can also argue that the services the client needs require that the child not be

detained. The nature of the impairment and the information in the IEP may also be rel-evant at a school disciplinary hearing.68

You may decide that these proceedings are outside your area of expertise and to not participate in them. However the parents of your client will, at a minimum, look to you for guidance in locating appropriate representa-tion. It will benefit your case, as well as your client, to be prepared with names of referrals to other advocates, attorneys or organizations that can offer them guidance and support.

The Special Education laws are codified at Arkansas Code sections 6-18-101 to 104, 201 to 223, and 301 to 313. School disciplin-ary procedures are codified at sections 6-18-501 to 514, with interpreting regulations at 005-15-022 Code of Arkansas Rules sections 1 to 6.04.

System Reform

Arkansas’s Juvenile Justice system is at the beginning of a major reform effort. Juve-nile judges, advocates, legislators and others are working around the state to address is-sues such as commitment of non-violent of-fenders, lack of resources that meet juveniles’ needs and inadequate assessment of juve-niles’ risks and needs. A recent report done by Pat Arthur and Tim Roche in collaboration with the Arkansas Division of Youth Services

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(DYS) highlighted the need to address these issues and outlined a plan for reform.69 Below are a few of the areas in the juvenile justice system where change is most active.

Risk AssessmentRisk Assessment is a means of classifying

juveniles based on their potential to cause harm to others in the community and on the likelihood they will reoffend.70 Risk Assess-ment is mandated under the Arkansas Code when a juvenile is found to be delinquent and the court wishes to commit the juvenile to a Youth Services Center.71 The Code specifically requires the use of the Risk Assessment Sys-tem for Arkansas Juvenile Offenders distrib-uted and administered by the Administrative Office of the Courts (“AOC”).72 The court must also forward this risk assessment to the Divi-sion of Youth Services along with any other pertinent information about the juvenile.73

Until recently, Arkansas used a Risk As-sessment tool developed in the 1980’s. Com-mendably, many in the Arkansas juvenile justice system were committed to making the necessary changes and developing a risk assessment instrument that would reduce commitments of low-risk youth and assist in making appropriate and more effective place-ment decisions and in January 2010, a new tool was implemented.74

The process of training everyone in the system on the new assessment tool has begun and courts are beginning to use the new form. Improvement will be slow across the state but you can educate yourself on risk assessment and ask the court to use or at least review the new form.75

Community Based ProgrammingA variety of factors contribute to the over-

use of secure confinement for low-risk/high needs delinquent juveniles that could be treated successfully in the community.76 One of these factors is the lack of resources to as-sess the needs of these juveniles and place them in appropriate community programs.77 Recommendations for reform in Arkansas to reduce confinement of these youth include identifying new sources of funding to support additional probation and intake staff for ju-venile courts, provide training and additional support to juvenile public defenders and so-licit volunteers to create pilot sites to help youth in delinquency court find advocates and programs in their community.78

In addition to the need for additional ad-vocates to help identify juveniles who could benefit from community based programming, there exists a need for more programming in some communities in Arkansas. Division of Youth Services (DYS) listed as the number

69. Pat arthur & tiM roche, Juvenile Justice reForM in arKansas: BuilDing a Better Future For youth, their FaMi-lies, anD the coMMunity 5 (2008), http://www.arkansas.gov/dhs/dys/statistical%20report/ArkansasReportFinal.pdf.70. Donna B. Towberman, A National Survey of Juvenile Risk Assessment, 43 Juv. & FaM. ct. J. 61 (1992). 71. arK. coDe ann. § 9-27-330(a)(1)(B)(i) (Repl. 2009).72. Id. 73. Id. § 208. 74. Id. 75. For more information on Risk Assessment, please see D’lorah L. Hughes, Understanding Risk Assessment in Arkansas Juvenile Court: Tips for the Practitioner in a Time of Change, 2009 arK. l. notes 109 (2009).76. arthur & roche, supra note 69, at 18. 77. Id. at 20.78. Id.

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79. arK. DeP’t oF huMan services Division oF youth services, coMPrehensive Plan 2009-2014 at 9 (2009).80. Id.

81. See id. § 5631(a).82. 42 U.S.C. § 5633(a) (2006).83. See About the Arkansas Coalition for Juvenile Justice, http://www.arjuvjust.net/about.html (last visited Aug. 3, 2010).84. 42 U.S.C. § 5633(22).85. Please see the ACJJ website, http://www.arkjuvjust.net, and the Office of Juvenile Justice and Delinquency Pre-vention (OJJDP) website, http://ojjdp.ncjrs.gov/, for more information on disproportionate minority contact.

two goal in their 2009-2014 Comprehensive Plan to “Support children, youth, and fami-lies by providing appropriate services close to home with the result of less secure confine-ment of youth and greater safety of Arkan-sas communities.”79 Strategies to accomplish this goal include mapping community and regional resources, funding pilot projects in high-needs areas of the state, and using a standardized risk assessment tool in all judi-cial districts (see above discussion).80

When representing a juvenile charged with an act of delinquency it is important that you educate yourself about the resourc-es available in your area. DYS can assist in providing a list of some programs and social workers can be of great help here too.

Disproportionate Minority ContactThe Juvenile Justice Delinquency Preven-

tion (JJDP) Act provides for funding to states for juvenile-delinquency programming.81 To be eligible to receive JJDP Act Title II (For-mula Grant) funds and Title V (Community Prevention) grant funds, states are required to commit to achieve and maintain compli-ance with the four core requirements of the Act.82 In Arkansas, these funds are one of the largest source of prevention and intervention money the state receives.83

Determining whether minority youths are represented in the juvenile justice system in greater proportion than their proportion in the general population, and taking ac-tion to address such racial inequality is the fourth core requirement of the Act and is also known as Disproportionate Minority Contact (DMC).84 For example, take as a hypothetical a city where African Americans are 25% of the total youth population but represent 33% of the youth in the juvenile justice system. This minority group is disproportionately represented and the JJDP Act requires that the state address this issue.

Arkansas continues to work on ensuring compliance with this area of the JJDP Act. Implementing greater needs/risk assessment will assist in achieving this goal but addition-al programming and greater efforts at early intervention and prevention are needed.85

Additional Resources/Getting Help

While there is no substitute for experience and of course, reading the code for yourself, there are some great resources available to help you become an effective practitioner in this area of the law. The community of juve-nile defenders and juvenile advocates both nationally and locally include experts in a va-riety of areas.

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As you take on juvenile clients, you may find that the help you need lies outside of the law. Remember to look to specialties such as psychology, social work, and education to as-sist you in addressing the needs of your cli-ent.

The list below is intended to be only a starting point. Call your local public defend-ers’ office for information more specific to your court—just remember they are busy!

Organizations

National Juvenile Defender Center1350 Connecticut Ave. NW, Suite 304Washington, D.C. 20036(202) 452-0010http://www.njdc.info

Central Juvenile Defender Center (Covers AR, IN, KS, KY, MS, OH TN)Children’s Law Center1002 Russell St.Covington, KY 41011(859) 431-3313http://www.childrenslawky.org Juvenile Justice CenterUniversity of Arkansas, Little Rock2801 S. University Ave.Little Rock, AR 72204(501) 569-8592http://ualr.edu/juvenilejustice/

UALR Legal Clinic1201 McMath Ave. Rm. 105Little Rock 72202-5142(501) 324-9441http://www.law.ualr.edu/academics/clini-cal_programs/

Juvenile Justice Legal ClinicUniversity of Arkansas School of Law1045 W. Maple St. Fayetteville, AR 72701(479) 575-3056

Law

Juvenile Justice Delinquency Prevention Act 42 U.S.C. § 5633(a)(H) (2006) Institute of Judicial Administration - American Bar Association’s Juvenile Justice Standards Westlaw database is ABA-JJS. Links

Office of Juvenile Justice and Delinquency Preventionhttp://www.ojjdp.ncjrs.org/

Arkansas Coalition for Juvenile Justicehttp://www.arjuvjust.net/

Arkansas Division of Youth Services (DYS)http://www.state.ar.us/dhs/dys/

Books

Trial Manual for Defense Attorneys in Juvenile Court Written by Randy Hertz, Martin Guggen-heim and Anthony Amsterdam Second edition, 2008 Published by ALI ABA and the National Juvenile Defender Center http://www.ali-aba.org/index.cfm?fuseaction=publications.bookspage&book_code=BK50K#printed

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Appendix OneJuvenile Code Index

Arrest and Detention charge hearing 313(b)(2) parentalnotificationrequired 313(b)(1)Detention detention,burdentoprovenecessity 326(c) detentiondecision,factorsaffecting 322(b) detentionhearing,scopeof 326(d)(2) detentionhearingreq’dwithin72hrs 313(d)(1)(C) detentionfacilities 313(d)(4) dischargemandatoryabsentfiling 313(f) intakeinvestigation 324(a) intakeinvestigation,voluntariness 324(d) mandatory-detentionoffenses 313(d)(1)(A) policediscretiontodetain(felony) 313(d)(2) policediscretiontodetail(mis.) 313(d)(3) release,conditionalrelease 326(e)(3) releaseabsentprobablecause 326(e)(1) releasebyintakeofficer 322(a)Limits on Detention — Detention in Adult Facilities OK forjuvenileschargedasadults 336(b)(1) forlessthan6hrsforprocessing 336(b)(2) specialcircumstanceexception 336(b)(3)(A)

Commencing proceedings community-allegeddelinquency 310(d) delinquencypetitions 310(b)(1) proceedingscommencedbypetition 310(a)

Dispositions alternativestojuvenileadjudication 323(e) constrainedchoicesforgunoffenders 330(c) diversionatprosecutor’sdiscretion 323(a) diversion,eligibilityconditionsfor 323(c)Disposition Options commitjuveniletoDYScustody 330(a)(1)(B) communityserviceofupto160hrs 330(a)(9) cont’ddetentionforupto90days 330(a)(11) DYSaftercareplans 364 fineofnotmorethan$500 330(a)(8) housearrestwithelec.monitoring 330(a)(12) non-DYStransferoflegalcustody 330(a)(1)(A) recommendedtreatmentprogram 330(a)(1)(B)(iii) restitutionorder 330(a)(7) suspenddrivingprivileges 330(a)(15) Limitations on Dispositions commitmentorderonlylasts2yrs 331(a)(2) court-orderedcounseling&eval. 331(d) decisiontoreleaserestswithDYS 331(a)(5)

extensionofcommitmentorder 331(a)(3) maynotimprisonjuvenileuntil16 510(a) no commitmentwithDYS>age21 331(a)(1) restitution,limitson 331(e)Probation childreceivesconditionsinwriting 339(a)(1) failuretopayrestitutionasviolation 339(f)officer’sreportmaynotbedisclosed 347(b)(3) probation 330(a)(4) prob.officermustkeepfullhistory 347(a)probationorderlastsupto2yrs 331(c)(1) probationorder,extensionof 331(c)(3) probationorder,whenterminates 331(c)(2) prosecutormayfiletorevoke 339(b) revocationhearing,promptness 339(d)

Extended Juvenile JurisdictionEligibility for EJJ capacity/fitnessconsiderations 502 eligibilityfactors,age&offenseas 501(a)(3)-(4) juveniles<13presumedunfitforEJJ 501(a)(1) juveniles>13presumedfitforEJJ 501(a)(2)Disposition adultsentenceimposedwhen 507(a) adultsentenceoptionsforcourt 507(b) adultsentencesuspended 506 age-triggereddispositionhearings 507(e)(1) circuitcourthassolereleaseauthority 331(b)(1)(B) EJJdispositionordermaybemodified 507(c) releaseofEJJoffenders 509Procedure designationorderfinalandappealable 503(f) hearing,promptnessreq’dfor 503(a)(1) righttocounselcannot be waived 504 righttojurytrial 325(a)(1)(B) subjectonlytoadultspeedy-trialreq 327(c)

Filing in/Transfer to Juvenile or Adult Court actscommittedbeforeage16 318(a)(1) bailandbondcarryover 318(k) clearandconvincingevidencereq’d 318(h)(2) misdemeanorscommitted<age18 318(a)(2) transferdecision,factorsaffecting 318(g) transferhearing,promptness 318(f) transferforrepeatfelonyoffenders 318(b)(3) transfermotion,whomaymake 318(e) transfertoadultcourtpossible 318(b)(1) whenstatemayfileineithercourt 318(c)

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Hearings burdenofproof,whobears 325(h)(1) burdenofproof,whichapplies 325(h)(2) closedhearings 325(i) hearingsconductedwithoutjury 325(a)(1)(A) permitsuseofallcriminaldefenses 325(k) promptnessrequirement(14days) 327(b) RulesofEvidenceapply 325(e)(1) RulesofCivilProcedureapply 325(f) voluntarinessofconfessions,factors 366

Jurisdiction delinquencyactions 306(a)(1)(A)(i) emergencycustody 306(a)(1)(D) whenretainabletoage21 306(a)(1)(A)(ii)

Personnel intakeofficerdescribed 308(a) probationofficerdescribed 308(b)

Records and admissibility as evidence DNAsamplereq’dofsomeoffenders 357 expungement 309(b)(2) generallyprivilegedinadultct. 345(b)(1)

lateruseinjuvenilect.permitted 345(b)(2) recordpreservation,whenrequired 309(b)(1)(A) releasetoschoolofficials 309(f)-(k) releasetoensurepublicsafety 309(k) statementstointakeofficerprivileged 321 usepermittedatadultsentencing 309(a)(2)

Right to Counsel andthreatofcivilcommitment 316(d),317(h) attorneyadlitem 316(f)(2) counsel,court-appointed 316(b)(1) counsel,whenappointed 316(e) intelligentwaiverrequired 317(a) nowaiverforEJJoffenders 317(f) parentalconsenttowaiverreq’d 317(b) req’dMirandawarnings 317(i)(2) scopeofright 316(a) writtenwaiverofrightrequired 316(c)

Venue juvenileproceedingsgenerally 307(a)(1)(A) transfer,intrajurisdictional 307(b)(1) transferprocedure 307(c)

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