Diversion from Juvenile Court

1. Diversion from Juvenile Court Class 17

2. CASE OF THE DAY • Facts: • Beating death of 16 year old male, assailants include two males age 16, instigator is a third male, age 17 • Victim had year long dispute with one of the killers over “egging” incident • Prime tourist location (Old Town, Alexandria VA • Two (killers) were tried as adults, third in juvenile court • Minor prior record (shoplifting, B&E, trespass, joyriding in parents’ car, probation violations) • No weapon used (blunt injury trauma)

3. Circumstances • Videotape evidence shown of attack by instigator against same victim one year earlier • Instigator accused victim of egging his house • Victim fights back, hurts instigator, then apologizes • According to the judge, in his waiver order, the killers and instigator had been drinking and/or using drugs on the night of the fatal event. No evidence that victim had been drinking. One defendant had drinking problem since age 13, had drunk 11 beers that night. School problems, “scrapes with authorities” in the past. The other had history of mental health problems, diagnosed as bipolar, ran away from home to avoid private MH placement • Four blows, one which sounded like “gunshot” • Victim backed away, did not resist

4. Chronology • Attack took place Sept 13, 2003 • Prosecutor implores judge not to dismiss incident as a “boyish prank” • Charges filed in criminal court in October 2003 for two assailants • They are initially charged as second-degree murder • Defense counsel contends that the incident was “foolish, reckless even stupid” but not done with malice, an element of the murder charge

5. Killers waived to criminal court in November 2003 • Killers plead guilty to involuntary manslaughter in January 2004 • Instigator pleads guilty to same charge in juvenile court • They had been detained prior to plea and sentencing • Parents of victim accept and endorse the guilty plea • Killers sentenced to serve time in juvenile institution until reaching age 21, followed by probation for 10 years, which could result in prison sentence if violated. • Judge had choice of 10 year sentence in adult institution • Your sentence? For two killers? For instigator?

6. CASE OF THE DAY 2 The youths, serving time at Maricopa County Jail, will earn school credit for their time pulling weeds at the corner of 18th and Washington streets in Phoenix. The teens are serving sentences of less than one year for crimes ranging from drug possession to armed robbery. Sheriff Joe Arpaio called the county's juvenile chain gang the country's first. Arizona Daily Republic, March 11, 2004

7. DIVERSION • At “apprehension” or referral, there is a discretionary moment when either the prosecutor or a juvenile intake officer decides whether to process the case formally or informally. • Interactions between juvenile court screeners and prosecutors vary from state to state • If informal, there are still obligations that can be imposed • Counseling • Referral to a social service or other agency • Probation obligations • Who are screeners?

8. Trends • Trend toward formality: filing of juvenile court petition in lieu of informal supervision • Sickmund study: 45% processed informally, 53% of those (27% overall) receive some type of intervention or obligation • Race effects

9. Legal Structure • Formality of Rules • CA Court Rule 1404 – procedural • CA Court Rule 1405 – criteria • Legal sufficiency of charge(s) • Seriousness • Persistence of problem leading to crime • Parent and child attitudes • Age, maturity (“sophistication”) • Prior record • Victim interests • Other circumstances

10. Criteria for Informal Disposition • Need for court intervention vs. family resources and capability • Court needs more time for longer observation and evaluation of child

11. Social and Legal Tensions • Net widening? Defense of net widening? • Special interests of court in child development and welfare • It’s voluntary • Involvement of community agencies in quasi-legal function of supervision and reporting – transfer coercive power to social service or mental health agency • Effectiveness of services, liability of child and family is dependent on capacity of social service agency • Balance of evidence from experiments suggests that diversion is ineffective, if not iatrogenic

12. Social and Legal Tensions… • Who is better suited to run a diversion program – prosecutor or court (via probation arm)? • Sound screening decisions • Operational management of diverse network of services • Supervision authority • Does juvenile have right to counsel to decide whether to accept a diversion offer? Is waiver “voluntary” and “intelligent”? • Length of diversion period? • When does intensity of services become punitive and subject to procedural due process? • What should be the consequences of failure?

13. Social and Legal Tensions… • What are the liabilities when a juvenile rejects a diversion offer? • More severe sentence is permitted (State v. McDowell, 102 Wash. 2d 341 (1984) • But can’t escalate misdemeanor into a felony charge in lieu of a diversion agreement • How should the termination decision be structured? What is success? Can it be spelled out contractually? Do agencies become powerful quasi-legal actors that determine whether there will be further punishment ? Is this good or bad?

14. Social and Legal Tensions… • Does admission of guilt (required in many programs) create risk or prejudice in subsequent court actions for this or later charges? • What are the liabilities of failure in diversion, and does failure prejudice subsequent court proceedings? • Diversion counts as a “prior” in future court matters as a sentencing enhancement (State v. Quiroz, 107 Wash.2d 791 (1987)) • But see In Re D.S.S., 506 N.W.2d 650 (Mn. Ct. Ap. 1993)

15. Current Practices • Florida Program • Denver Program • Like Drug Courts? • How is service delivery system regulated? • Accountability diffusion? • Worth the money?