Roundtable Discussion: The Intersection of Youth in Detention and Mental Health Issues – Greensboro, September 30, 2016

On Friday, September 30th, 2016, there will be a Roundtable Discussion on the Intersection of Youth in Detention and Mental Health Issues at the Guilford County HR Building, Greensboro, North Carolina.  There will be a Networking Lunch from 12:00 noon to 1:00 pm.  Training begins at 1:00 pm to end no later than 4:00 pm.

The training will feature Carmen Graves, Chief Court Counselor for Guilford County, Doug Logan, Director of Guilford County Court Alternatives and the Guilford County Detention Center, and Teresa Ibarra from the Children’s Hope Alliance.  See attached flyer for details.

Please RSVP to Eric Zogry at Eric.J.Zogry@nccourts.org by Friday, September 23rd.

This training is being offered for free and sponsored by the North Carolina Advocates for Justice and the NC Office of the Juvenile Defender. The training is open to any attorney interested in discussing mental health and detention issues that arise in juvenile court.

Misdemeanor Diversion Program Conference – sponsored by the Youth Justice Project and Durham County Misdemeanor Diversion Program

The Youth Justice Project of the Southern Coalition for Social Justice and the Durham County Misdemeanor Diversion Program are cosponsoring a Misdemeanor Diversion Program Conference, focusing on sharing information about pre-­arrest misdemeanor
diversion programs (MDPs) aimed at keeping 16-­ and 17-­year-olds out of the adult
criminal system for minor offenses and instead imposing appropriate, individualized
and immediate consequences on these youth.  For more information, click here.

Due Process Rights and Children: Fifty Years of In re Gault – Part Two, the Right to Counsel

This post is the second in a series focused on In re Gault, the U.S. Supreme Court case which mandated that the core due process rights applicable to adults in criminal proceedings must also be afforded to juveniles who are alleged to be delinquent. Perhaps the most significant of these rights is the right to counsel. The Supreme Court strongly condemned the denial of counsel to children in a proceeding which carries “the awesome prospect of incarceration” until the age of majority. 387 U.S. 1, 36. In such proceedings, a juvenile needs legal representation “to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.” Id. Thus, in delinquency hearings “which may result in commitment to an institution in which the juvenile’s freedom is curtailed,” the child and his or her parents must be notified of the child’s right to counsel, or if they cannot afford counsel, that counsel will be appointed. Id. The NC Juvenile Code codified and expanded the right to counsel in G.S. 7B-2000 by requiring the appointment of counsel for all juveniles who are alleged to be delinquent without the need to show indigency. Despite this progress, advocates still question whether the right to counsel for juveniles extends far enough.

Evolution of a Juvenile’s Right to Counsel in NC

Immediately following the Gault decision, the General Assembly enacted former G.S. 110-29.1 (1967 Cum. Supplement), which essentially followed the language of Gault and guaranteed a right to counsel to juveniles facing the possibility of commitment to a training school (what we now call a youth development center) and a right to appointed counsel to those who were indigent. Appellate decisions interpreting Gault also required affirmative evidence in the record that the trial court gave prior notice of the juvenile’s right to counsel to the juvenile and the juvenile’s parents and “confronted [them] with the need for specific consideration” of whether they chose to waive it. In re Stanley, 17 N.C. App. 370, 371 (1973) (reversed based on trial court’s failure to properly advise juvenile and his parents of right to counsel); In re Garcia, 9 N.C. App. 691, 694 (1970) (same).

In 1979, the Juvenile Code Revision Committee, part of the former Department of Crime Control and Public Safety, recommended amending the law to provide that juveniles have the right to counsel “in all [juvenile] proceedings” and that the court may appoint counsel at any stage of the proceedings but must appoint counsel for juveniles alleged to be delinquent unless counsel has been retained or waived by the juvenile. The General Assembly considered these recommendations but determined that counsel must be provided for delinquent juveniles at all stages without the possibility of waiver and regardless of indigency. See former G.S. 7A-584 (1980). Thus, juveniles in North Carolina have been afforded automatic appointment of counsel in delinquency cases since 1980.

Juvenile Defense Services in NC

North Carolina indigent defense providers have consistently recognized the importance of juvenile defense. The first two state-funded public defender offices founded in 1970, located in Guilford and Cumberland counties, immediately provided representation to juveniles. Currently, all but two of the state district offices represent juveniles. One of these districts, Mecklenburg County, is home to the nonprofit law firm Council for Children’s Rights (CFCR).  Formerly known as the Children’s Law Center, CFCR has maintained a contract to represent juveniles in Mecklenburg County since 1987, making it one of the oldest indigent defense contracts in NC. CFCR promotes best practices in juvenile defense including the use of in-house investigators and social workers. Although Gault did not extend the right to counsel in appeals, juveniles receive appellate representation through the Office of the Appellate Defender.

In the late 1990’s, renewed national interest in the quality of juvenile defense prompted the American Bar Association and the National Juvenile Defender Center to perform state assessments of quality of counsel. From 2001 to 2002, North Carolina participated in an assessment and the results were detailed in the 2003 report, “An Assessment of Access to Counsel and Quality of Representation in Delinquency Proceedings.” The report revealed a lack of standards, guidance, training, and technical support for juvenile defense counsel. As a result, in 2005, the NC Office of Indigent Defense Services created the statewide Office of the Juvenile Defender (OJD). OJD’s mission is to improve the quality of defense counsel by creating standards and guidelines, improving education and training opportunities for juvenile defenders, and building a community of specialized representation among public defenders, contractors, and privately assigned counsel.

Extending the Right to Counsel Beyond Gault?

In Gault, the Supreme Court emphasized that children, even more than adults, need “the guiding hand of counsel at every step in the proceedings against [them].” 387 U.S. 1, 36 (emphasis added). However, the Court’s holding was limited to the adjudicatory phase of a delinquency proceeding and did not address how the right to counsel impacts “the totality of the relationship of the juvenile and the state.” 387 U.S. 1, 13. The Court specifically declined to consider the applicability of due process rights to the “pre-judicial . . . post-adjudicative or dispositional process.” Id. This means that juveniles do not have a constitutional right to counsel at other critical stages of the proceeding that influence the outcome of the juvenile’s case.

For example, while attorneys are appointed early in the process, counsel typically is not present during the intake investigation, which determines whether a court counselor will approve the case for court (unless the offense is non-divertible and must be approved). Although court counselors consider numerous factors in deciding whether to file a complaint against a juvenile as a juvenile petition, the counselor’s face-to-face meeting with the juvenile and the juvenile’s parent or guardian is an important part of this determination. See  G.S. 7B-1701 (requiring reasonable efforts by court counselors to personally meet with the juvenile’s family for divertible offenses). Some defenders have advocated for the right to be present at intake to protect their client’s interests.

Defenders also question the need for “on call” counsel for juveniles who are placed in detention awaiting an initial secure custody hearing. Although juveniles must be represented by counsel at the hearing on the need for continued custody, held within five days, the initial order placing the juvenile in secure custody is usually entered by the judge ex parte; therefore juveniles may be subject to law enforcement interrogation without access to counsel. Other gaps in representation may occur post-disposition, such as during periods of probation or when juveniles are placed in locked facilities. Undisciplined juveniles, youth who are accused of being disobedient or truant, also must face the court without counsel.

Meaningful access to counsel might also include a more holistic representation that goes beyond the delinquency charges to allow defenders to represent a juvenile who is suspended from school or needs special education services; or to obtain an expunction for a juvenile who faces barriers to employment or housing from an adjudication of delinquency. However, with no constitutional or statutory right to counsel in such proceedings, juveniles lack this type of representation. While some organizations such as Advocates for Children’s Services or Council for Children’s Rights can provide some additional services beyond the normal scope of the juvenile defender’s representation, ultimately, a reevaluation of the scope of the juvenile’s right to counsel may be necessary to truly allow for holistic representation.

*In collaboration with the Professor LaToya Powell at the UNC School of Government, this post is the second in a series of posts related to In re Gault and its impact on due process rights for juveniles. The blog posts in this series will be posted to both the On the Civil Side Blog and the Juvenile Defender Blog. 

Juvenile Adjudications – Admissible in Adult Death Sentences? By Guest Blogger John Mills

Pardon the interruption.  This post will mostly be about death penalty sentencing, something that would normally be out of bounds for this blog.  However, a recent Ohio Supreme Court case provides a substantial basis challenging North Carolina’s use of juvenile adjudications to support death sentences—and only death sentences—and highlights a split of authority that can only be resolved by the United States Supreme Court.  Because the case indirectly highlights how North Carolina has long understood that juvenile adjudication is about rehabilitation, and how woefully behind the times North Carolina is when it comes to capital sentencing and juvenile adjudications, the decision, available here, is worth a read in full.

The Ohio Supreme Court held that a juvenile adjudication was inadmissible in adult sentencing proceedings.  That court reasoned that it would be fundamentally unfair to enhance an adult sentence with a juvenile adjudication because of the “civil nature” of juvenile adjudications, which emphasize rehabilitation, and lack a jury trial guarantee.  The court concluded that the Ohio statute permitting use of juvenile adjudications to enhance adult sentences violated the Fourteenth Amendment’s guarantee of due process.

North Carolina, for every adult sentence other than death sentences, is far ahead of the game on this one.  Back in 2005, the Court of Appeals reached the same result.  It was able to do so in two short sentences because in 1998 the legislature passed section 7B-2412, excluding all juvenile adjudications from consideration as a criminal offense.  In the 2005 case, the Court of Appeals took the opportunity to confirm that, yes, this provision means juvenile adjudications cannot be used to enhance non-capital criminal sentences.  Hurray!  Juvenile court really is about rehabilitation!  (Also, how could the state in good faith fight them on this issue?)

Sadly, the story does not end here.   As part of a wave of “juvenile superpredator” hysteria, in 1994, the legislature amended the death penalty sentencing scheme specifically allow juvenile adjudications (i.e. offenses committed by persons age 15 or less) to support a finding of death (during the same session, the legislature reduced the age a juvenile could be transferred to adult court from 14 to 13).  The juvenile adjudications were specifically authorized for use to support the state’s case for a death sentence, not the defendant’s case for life.  The myth of the juvenile superpredator is dead, but the legislature’s decision to hold juvenile conduct against capital defendants lives on.

Our courts have not addressed the effect of the 1998 legislation on the superpredator inspired expansion of our death sentencing statute.  (In 2002, in the only case I am aware of that deals with this particular part of the death sentencing statute, the Supreme Court held that using juvenile adjudications that took place prior to the 1994 amendment in support of a death sentence for a crime that took place after the amendment did not violate the ex post facto clause.  For procedural reasons, the same court refused to address the interaction of section 7B-2412 and the capital sentencing statute.)

The Ohio Supreme Court’s decision provides several reasons to question the ongoing constitutionality North Carolina’s use of juvenile adjudications to support a sentence of death.  First, like Ohio, there are no juries in North Carolina juvenile adjudications.  The Ohio Supreme Court recognized that the lack of a jury guarantee impairs the reliability of juvenile adjudications (even as it gives a judge more leeway to fashion a remedy conducive to rehabilitation), making them a dubious basis for enhancing a death sentence.

It is particularly troubling that all sentencing proceedings exclude the adjudications, except for death penalty proceedings.  When the stakes are the highest, due process demands the most.  But our sentencing scheme, taken as a whole, provides for exactly the opposite: juvenile adjudications can make a person death eligible even though they cannot be considered for any less serious punishment.  Such an upside down orientation cannot pass meaningful scrutiny.

Next, even more fundamentally, the entire juvenile justice process is supposed to be geared towards “providing rehabilitative services to juveniles and their families” with the goal of deterring future delinquent or criminal conduct.  In contrast, the “primary purpose” of adult sentencing is to “impose a punishment.”  For this reason, North Carolina has necessarily failed a person adjudicated delinquent as a juvenile who ultimately reoffends.  Such systemic failures are a reason to show mercy, not punish more harshly.   But our capital sentencing scheme provides for exactly the opposite.

This reasoning should also apply prevent use of juvenile conduct to as 404(b) evidence.  Our rules of evidence explicitly allow juvenile conduct to be used for purposes such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident.  The recognition that juvenile conduct is different in kind from adult conduct should fully undermine the use of juvenile conduct as saying much of anything about an adult’s conduct.  Objections based on due process and rule 403 should prevent its admission.

Likewise, juvenile conduct should be inadmissible to rebut the mitigating factor (including the specific capital circumstance or the catchall non-capital circumstance) of a lack of significant criminal history.  Juvenile conduct is, by statutory definition, not “criminal behavior” and should be excluded for that reason alone.  Additionally, the same common sense recognition that juveniles’ culpability is different in kind from adults, the recognition driving the Ohio Supreme Court decision, should exclude its use to rebut this mitigating circumstance.

In sum, it’s great that North Carolina long-ago reached the same conclusion the Ohio Supreme Court recently arrived upon: juvenile adjudications have no place enhancing adult sentences.  However, it’s problematic that our capital sentencing scheme allows juries to do exactly this.

John Mills is a Principal Attorney at The Phillips Black Project, where he represents persons sentenced to death and juveniles sentenced to life without parole and its equivalent.

 

 

Congratulations to Ricky Watson: 2016 NJJN Youth Leadership Institute Fellow

Congratulations to Ricky Watson, Co-Director of the Youth Justice Project of the Southern Coalition for Social Justice, for being named a 2016 National Juvenile Justice Network Youth Leadership Institute Fellow!

The mission of the Youth Leadership Institute is to expand the foundation for a more effective juvenile justice reform movement by supporting the development of a strong base of well-prepared and well-equipped advocates and organizers who reflect the communities most affected by juvenile justice system practices and policies, with a particular focus on elevating and supporting leaders of color, youth and family members.