Week in Review: Apr 12-16

Welcome to the Weekend Readers! This week OJD was busy with meetings and discussions while also planning some new material to share with you all. We’d love to hear some of your thoughts, needs and wants to better assist you in your day to day work in Juvenile Justice. No idea is a bad one and you can contact anyone in the office!

TIP OF THE WEEK

When Should I Receive the Disposition Report? 

You should try to receive the disposition report prior to the dispositional hearing to review with your client.  If possible, try to get a copy of the report at least several days prior to the hearing.  While there is no statutory authority compelling the receipt from the intake counselor, there are local rules which suggest time periods.

Congratulations OJD!

With the completion of our OJJDP Grant that wrapped up March 31, 2021, OJD was able to produce multiple CLE trainings for our Defenders (while covering attendance costs), have a brand new website (coming soon), and created SEVEN Quick Guides for readily accessible facts & tips while in court (which were either hand delivered or mailed throughout the year). All of this would not have been possible without our AWESOME Project Attorney Austine Long. Austine has worked extremely hard to reshape how our grant would succeed during the unexpected change of pace when the office and our plans to travel, shut down due to Covid. She revamped our CLE curriculum and never stopped making sure we hit the mark. So thank you Austine, for everything you did and do for OJD!

Raise the MINIMUM Age

On March 25, 2021, the N.C. Senate passed a bill to raise the minimum age a youth can be petitioned for a crime. The age increase would move from the lowest in the United States at 6 years of age, to 10. One of the main highlights of Senate Bill 207 is that it sets up a child consultation process which would enforce that these youth that are referred to the justice system and are under 10 will need to meet with a court counselor to assess the appropriate resources that can assist with keeping the youth out of the court process. This aim is to ensure that the mental capacity of youth and the desire to keep children out of the system and help discover latent issues. Now that the Senate has passed the legislation, it is on it’s way to the House for further consideration before going to the Governor’s hands. If the bill is passed, it will go into effect on Dec. 1. What are your thoughts on this newly introduced / pending Bill?

JLWOP

Josh Rovner has written a great piece via the Sentencing Project regarding Juvenile LWOP. This brief report is filled with statistics, landmark cases and thoughts surrounding the end of JLWOP in the United States. To read this brief and learn more about the JLWOP reform requests, please click here.

Week in Review: Apr 5-9

Happy Friday Readers! First week of April down and it’s getting warmer outside. Not to mention, time for pollen. We hope you’re stocked up on allergy cures for Spring. Well, it’s time for another Week in Review, let’s get started!

Tip of the Week

Prior Record Level Matters

If your client’s prior record places him/her in a position for the judge to enter a level 1 OR 2 dispositional level, ALWAYS argue for a level 1 disposition. You can find a copy of the disposition chart here. Make sure to check the final written order for accuracy.

Child Abuse Prevention Month

April is Child Abuse Prevention Month and as juvenile defenders, it is important to note, understand and work with others to provide safety to the most vulnerable. For more information on training, initiatives, partnerships and tools, please visit OJJDP’s dedicated page to this cause.

Webinar!

In honor of Second Chance Month this April, NACDL will host “Race + Criminal Legal System: Collateral Consequences,” a program aimed at unpacking the racially disparate and often-permanent consequences associated with criminal convictions. Tune in Tuesday, April 13th, at 4pm ET (1pm PT) with moderator, Cynthia Roseberry, Deputy Director for the National Policy Advocacy Department for the ACLU, and panelists Rob DeLeon, Vice President of Programs for The Fortune Society, David Singleton, Executive Director for the Ohio Justice & Policy Center, and Quintin WilliamsPanelists will discuss the long-term impacts of criminal convictions, the specific harm that collateral consequences have caused to communities of color, and what it will take to meaningfully change this system. There will be time for audience questions at the end of the program.

North Carolina Juvenile Sentence Review Board

Yesterday, Governor Roy Cooper announced the formation of the North Carolina Juvenile Sentence Review Board (“Review Board”). It is a four-person advisory board, established by Executive Order 208, that will review some sentences imposed in NC on youth who were tried and sentenced in adult criminal court for acts committed before turning 18. The Review Board will make recommendations to the Governor concerning clemency and commutation of such sentences when appropriate. This is big news for youth offenders who are now adults and a start to changing the course of juvenile justice in NC. To read more about this announcement click here.

From LaTobia,

I am seeking guest writers for our blog for each month this year, specifically those in juvenile defense or youth advocacy work. Topics will be of your choice, but should include some supporting information such as statutes, cases or graphics. These blogs are geared to help fellow attorneys and create discussion in regards to juvenile proceedings and court processes. Feel free to send me an email at latobia.s.avent@nccourts.org so we can discuss this further or if you’d like to volunteer. Also, feel free to send this message to your colleagues and friends, whoever may be a great contributor. Thanks!

THAT’S ALL FOR NOW! HAVE A GREAT WEEKEND!

Week in Review: March 22-26

Another Friday in the books and the last one of March! So let’s jump into our Week in Review.

TIP OF THE WEEK!

If you have a client being held on a secure custody order – remember it’s the STATE’s burden to prove to the court, by clear and convincing evidence, that the juvenile should remain in custody AND no less intrusive alternative will suffice (§7B-1906(d)).  That means it’s not the court counselor’s role!  Ask the court for less restrictive means, for example electronic monitoring or house arrest.  If the court finds that your client should remain in custody, the court is bound by the criteria in §7B-1903 and must make written findings of fact.

Thank you to David Andrews!

OJD would like to thank David Andrews for his presentation Wednesday afternoon on Challenging North Carolina’s Automatic Transfer Laws. The information he shared was not only helpful to our defenders, but sparked questions but also how to overcome challenges our defenders see daily. This was a highly participated CLE and we also can’t thank the attendees enough for making this a great training!

Something exciting is coming!

Not only is NCJUVENILEDEFENDER.COM getting a facelift, we’re also bringing you some new content. We’re now in the process of recording a few videos, containing information on juvenile issues, specialization, and all kinds of helpful nuggets that we know our defenders would like. Interested in filming one? Contact LaTobia.

With the new website, you will have to re-subscribe to our blog (and something special) so stay tuned for more information and our launch! Thanks for all that you do and helping us make this possible!

Community Events

On April 1 at 1:00pm ET, NACDL’s Fourth Amendment Center is presenting a free, CLE webinar titled, “Racist by Design: How Systemic Racism and Inherent Biases Manifest in Artificial Intelligence, Machine Learning, and Beyond”. This program will feature Rashida Richardson, Visiting Scholar at Rutgers Law School and Rutgers Institute for Information Policy and Law, Cathy O’Neil, author, mathematician, and founder of ORCAA, an algorithmic auditing company, and Cierra Robson, a doctoral student in the Sociology and Social Policy program at Harvard University and the Inaugural Associate Director of the Ida B. Wells JUST Data Lab at Princeton University. To register for this CLE and receive credit, please click here.

In honor of Second Chance Month this April, NACDL will host “Race + Criminal Legal System: Collateral Consequences,” a program aimed at unpacking the racially disparate and often-permanent consequences associated with criminal convictions. Tune in Tuesday, April 13th, at 4pm ET (1pm PT) with moderator, Cynthia Roseberry, Deputy Director for the National Policy Advocacy Department for the ACLU, and panelists Rob DeLeon, Vice President of Programs for The Fortune Society, David Singleton, Executive Director for the Ohio Justice & Policy Center, and Quintin Williams. Panelists will discuss the long-term impacts of criminal convictions, the specific harm that collateral consequences have caused to communities of color, and what it will take to meaningfully change this system. There will be time for audience questions at the end of the program.

Week in Review: March 15-19

Happy Friday Readers! Short and sweet Week in Review for you today. We’re at the middle of the month and who doesn’t love getting to the weekend faster?

Tip of the Week

Transcript of Admission

Filling out a transcript of admission on any admission of a new offense is important for several reasons.  It memorializes the record of admission in writing if subject to an appeal.  Reviewing the transcript with your client helps your client better understand the admission and the rights s/he is asserting or waiving.  Make sure you complete the transcript with your client present and do so in a confidential space. Consider making a copy of the transcript to keep at the attorney table to help your client answer questions.  Stand with your client when the court asks your client the listed questions and be prepared to confer with your client if any issues arise.

PAC Fee App & New Juvenile Rates

The Office of the Juvenile Defender has been notified of an increasing number of errors on fee applications for delinquency matters.  In order that all fee applications can be processed, and payments issued in a timely manner, please read the following MEMO & view the Juvenile Rates Chart.

March CLE!

Have you registered for our Challenging North Carolina’s Automatic Transfer Laws, presented by David Andrews? Join us March 24, 2021 from 4:00-5:00 PM. This CLE will be 1 hour long, with CLE currently pending. Please remember this CLE is DEFENDER ONLY.

This presentation will provide juvenile defense attorneys with an understanding of North Carolina statutory provisions for the automatic transfer of children from juvenile court to adult criminal court.  The presentation will also discuss strategies and arguments that juvenile defense attorneys can use to challenge automatic transfer laws, including provisions in the United States and North Carolina constitutions covering due process, cruel and unusual punishment, equal protection, and the right to counsel.

To register, please click here.

From a Lawyer’s View: Youthful Offenders – What to Do When Clients Want to Be Transferred

Who are youthful offenders?

In the jurisdiction where I practice, we refer to 16-17 year-old clients who are subject to potential mandatory transfer to superior court as youthful offenders. This age group has its own special needs and challenges. One challenge is when your client either refuses an offer that will allow him/her to stay in juvenile court and/or requests transfer to superior court.

We know from science that adolescent brains are not fully developed until approximately between the ages of 21-25. We know that these differences in brain development have practical implications which impact their ability to plan ahead and think in hypothetical terms. We also know that they exhibit a greater degree of risk taking and more easily succumb to peer pressure. All of these factors (and more) influence their ability to make decisions and affect a teen’s ability to exhibit self-control. Additionally, they tend to be less sensitive to negative consequences. All of these factors (and more) played a role in North Carolina finally implementing the Juvenile Justice Reinvestment Act (also known as Raise the Age) to include youth under 18 under juvenile court jurisdiction for many offenses.

N.C.G.S. §7B-2200.5 requires a youth who is charged with an A-G felony offense to be transferred to superior court for trial as an adult after a finding of probable cause or indictment. So how does this impact your representation of a 16 or 17 year old client who tells you s/he wants to be transferred to superior court or refuses to admit to an offer that will allow him/her to remain in juvenile court?

What Is Our Role?

The first, and most important, thing to remember is that as defenders our role is NOT to advocate for the best interest of our client. We are express interest advocates and represent our juvenile clients with the same zealous advocacy that we do for our adult clients – even if we disagree with the decision s/he is making once we’ve counseled him/her regarding the benefits and risks of any decision. This means we must give our clients all the information they need, in language they can understand (i.e. age appropriate) to allow them to make their own decision. There is nothing wrong with challenging their thought process or asking someone they respect to have a conversation with them about the risk of transfer.

Assuming you have exhausted all your options in advising your client, and despite all your good legal advice your client insists on moving forward, what do you do? I would suggest the following:

  1. Get a second opinion – talk to a local attorney who you trust or contact our office to get advice on other ways to advise your client.
  2. Review with your client the possible collateral consequences of a transfer to superior court. OJD has a form that lists possible risks/consequences of transfer that requires your client to acknowledge that s/he has been informed and is choosing to transfer against advice of counsel. You can access the form here.
  3. Put it on the record. Make the court aware of your client’s decision, but do it in a professional manner that doesn’t negatively impact the court’s view of your client.

Lastly,

4. Respect your client’s decision. You may disagree, but it’s important to respect your client’s agency in making a decision that s/he will have to live with.

Written by Kim Howes, Assistant Juvenile Defender for The Office of the Juvenile Defender. Kim Howes has extensive juvenile court knowledge and directly represents juveniles for OJD while also supporting the middle districts of North Carolina, including Wake & Durham counties.

Week in Review: Feb 8-12

Happy Friday Readers! We hope your week was productive with plenty of moments to catch your breath too. Couple of announcements for you this week, along with a new (and free) OJD CLE!

Tip of the Week!

Where Can I Find the Law on RTA?

If you want to see the Session Laws which include the Raise the Age changes, see:

Senate Bill 413: 2019 Session Amendments to the RTA Bill (Juvenile Justice Reinvestment Act)

Senate Bill 257: The final bill budget for Session Law 2017; info pertaining to the Juvenile Justice Reinvestment Act can be found on pages 309-325

You can also check out the NC General Assembly website.  Look under “Bills and Laws,” then “General Statutes.”  You can search by citation or test, or you can look at Chapter 7B under the Table of Contents, and see the most recent changes to statute text on the right side of the statute.

FROM IDS

The Commission on Indigent Defense Services recently approved a modest, but much-needed, partial restoration of rates paid to private counsel providing representation in some case types. Specifically, the Commission voted to raise by $5 an hour the rate for high-level felonies, with a corresponding increase in non-hourly representation for adult criminal and juvenile delinquency proceedings. The Commission also voted to raise by $5 an hour the rate for DWI and Class A1 misdemeanors disposed of in the district court, with a corresponding increase in non-hourly representation. The increases approved by the Commission will take effect on March 1, 2021. Please click here to read the notice from Darrin Jordan, the Commission Chair, and IDS Executive Director, Mary Pollard. Also, if you have any questions, please reach out to Whitney Fairbanks via email.

Have you seen our #BlackHistoryMonth Spotlights?

Lyana Hunter (left) & Staisha Hamilton (right)

This week we showcased two amazing women and their work within the juvenile defense community. First up was Lyana Hunter and then Staisha Hamilton. To catch up on their spotlights, click here for Lyana and click here for Staisha!

OJD CLE OPPORTUNITY!

Wednesday, February 24, 2021 at 2:30 PM, OJD is hosting “Representing LGBT Youth”. This CLE will be presented by Ames Simmons, the Policy Director for Equality NC. This program will be a 90 minute CLE, with application pending and FREE TO THE FIRST 35 REGISTRANTS. This webinar includes a general review of introductory concepts and terminology related to LGBTQ identities, including the importance of pronouns to professionalism. We will discuss gender-expansive youth and the processes of gender transition for young people. We will talk about LGBTQ youth in out-of-home custody and present best practices for advocating for LGBTQ young people in the juvenile legal system. CLICK HERE TO REGISTER.

THATS ALL FOR THIS WEEK! HAVE A GREAT WEEKEND!

Week in Review: Jan 11-15

Happy Friday Readers! We have another blog for you, filled with resources and upcoming events AND an OJD sponsored CLE. So get settled in and let’s get started.

TIP OF THE WEEK – RTA EDITION

How Will Secure Custody Hearings Be Different for 16 and 17 Year Olds?

Currently, review of secure custody hearings are held every 10 days after the initial secure custody hearing.  For 16 and 17 year old’s charged with a Class A through G offense, review of secure custody hearings are held every 30 days after the initial secure custody hearing.  However, the hearings may be held every 10 days on motion of the juvenile or the juvenile’s attorney for good cause shown.

Resources

Our very own Assistant Juvenile Defender, Kim Howes wrote a blog on the new YASI tool along with some practical advice and a motion. If you haven’t had a chance to read that blog, please click here.

February 5, 2021, NC CRED is hosting a free virtual symposium beginning at 1 PM. Please click here to register. Here is a brief synopsis of the program:

“First, a panel of historians (Timothy Lovelace, Seth Kotch, and David Cecelski) will describe the historical origins of these modern forms of brutality. Second, a panel of activists and advocates (Dawn Blagrove, Will Elmore, and Henderson Hill) will discuss the ways racial violence is wielded today and the importance of exposing its historical roots. Finally, keynote speaker James Ferguson will offer closing thoughts on how we reckon with racial terror, in all its forms, to end its grip on our nation.

CLE Opportunities

Thursday, January OJD is hosting, Trauma Informed Practice. CLE approval is pending and OJD will cover the cost of the CLE for the first 35 registrants. This will be a 90 minute CLE, from 2:30-4:00 PM.

Presented by Jason T. Mahoney, a Certified Trauma-Centered Family Coach & Certified Group Facilitator, the session provides an in depth look at secondary trauma (Vicarious Trauma). It focuses on professionals who work with youth and families. The training includes an overview of how trauma impacts the brain, development and life functioning. The presenter will provide tools to build resiliency, and will offer other skills and resources to help professionals develop a trauma informed practice.

To register for this CLE, please click this link.

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The NACDL is hosting, Mental Illness & the Law: Addressing and Litigating Behavioral Health Disorders in Criminal Cases, February 24-27. This virtual online training will bring some of the nation’s most experienced lawyers and experts to help you understand these issues, offer ideas and proven solutions to assist you in advocating for your client during trial, whether it be insanity defenses, jury selection, cross of expert witnesses, persuasion, or mitigation at sentencing. To view CLE credit and cost and to register, please click here.

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Lastly, you may know or remember from last year that IDS offered 11 free-to-attend webinars on forensic evidence. This year IDS will continue to offer the webinars as part of a more formal series, which will help make it easier for you to attend, while getting CLE credit! This new series will start on Feb. 4.

If you’d like to attend some or all of the programs, please sign up using the link below. We look forward to seeing you on the webinars! 

2021 IDS Forensic Science Education Series

That’s all for this week Readers, thanks for reading and we’ll catch you next week!

Youth Assessment & Screening Instrument (YASI)

Youth Assessment & Screening Instrument (YASI)

by Kim Howes, Assistant Juvenile Defender

The Department of Juvenile Justice (DJJ) is implementing a new screening tool (YASI) to replace the current risk and needs assessment. The stated purpose of this new assessment is to better measure the risk of recidivism and to help develop an appropriate case plan to best suit the needs of the youth who is placed on probation. You can access the presentation from DJJ here.

The assessment addresses nine domains: basic needs, physical health, school, family, aggression, peers, attitudes, free time, and adaptive skills. There is both a pre-screen assessment and a full assessment. The Department of Juvenile Justice provided an overview of the assessment in November and as a result we want to provide you with some of our concerns as well as provide you with issues you may need to be aware of to assist you with advocating for your client at disposition.

Most importantly, this assessment is designed to take place at intake or prior to adjudication. While statute §7B-2413 specifically provides that the risk and needs assessment shall not be submitted or considered by the court prior to disposition, we know that in some jurisdictions this isn’t the case and information is shared prior to adjudication. This is especially an area of concern given the new assessment. As an important reminder – §7B-2408 explicitly prohibits any statement made by the youth to a juvenile court counselor during intake to be admissible to the court prior to the dispositional hearing.

Issues to be aware of:

  • The child accumulates points for not only prior adjudications, but also referrals and petitions filed for probation violations, regardless of whether or not the violation was adjudicated.
  • Several sections (basic needs, free time, community involvement, school) have the potential to create disparity based on poverty and DSS involvement, not necessarily factors that are in our client’s control.
  • There are broad stroke assumptions about who may or may not be a positive influence and who may or may not be a gang member.
  • The sections addressing attitudes and aggression are areas of significant concern. These sections assume the youth is responsible and if the youth doesn’t admit there are points assessed for impact of behavior and willingness to make amends. There are several additional questions that address sex offenses that could possibly lead to additional petitions.

 These concerns are difficult to address because the majority of these assessments will be conducted prior to assignment of counsel. As a result, depending on your jurisdiction, you may need to proactively ensure that any information received is not provided to the ADA prior to adjudication, and if it is, consider objecting to the court and, if necessary, making a motion to suppress statements made to the court counselor. We have a sample motion here.

We hope by making you aware of this new assessment and its potential issues you will be better able to protect your client’s rights and help the court understand your client in a way that will help the court better address your client’s individual needs at disposition. Please reach out to OJD to let us know of any concerns you see as this is implemented.

You can access and review the pre-screen assessment here, and full assessment here.


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Your 2020 Year in Review

We have reached the Year in Review portion of our weekly reviews! How did we get here so fast?! While this year has been the most challenging, between Zoom & WebEx, crashing technology and “Can you hear me?” ten times a day, everyone has worked so hard to keep our support of #JuvenileJustice strong. So true to tradition we have put together a culmination of what OJD has done throughout the year and it feels like so much :D.

With the tremulous year of 2020 ending, The Office of the Juvenile Defender (OJD) would like to recap how the year unfolded through it all. We’ll review how OJD hired a new Assistant Juvenile Defender, hosted new trainings, managed the first year of Raise the Age (RTA), and produced several materials as required for the second year of the federal OJJDP grant. OJD has worked throughout the year to keep our defenders informed and supported, while working on new ways to serve the state, such as our Regionalization plan.

Activities and Initiatives Since COVID-19 

Since the beginning of the pandemic, OJD has held weekly check-ins to speak about current projects, ways to engage in the community without physical contact, and how to support defenders in the best way through the various projects listed in this report. OJD has been reaching out to defenders in the field, offering support and resources and gathering information to relay to the defender community.  Additionally, we have communicated with other court actors, especially juvenile justice administration, to stay updated with ongoing changes in policies and procedures. We began work on additional pocket guides like the RTA guide released in December. Each guide will highlight a specific area of juvenile delinquency law and provide defender strategies, such as secure custody and adjudication. We also began developing remote training capabilities and plan to pilot trainings during the court closure. Each one of these activities and initiatives will be discussed further below along with updates from the initiatives from 2019.

Raise the Age

              While RTA implementation has been slowed by the impact of COVID on the courts, OJD has been steadily reacting to the impact of the new law: 

  • General consulting on trial and appellate issues 
  • Focusing on specific issues, including indictment procedure and the intersection of bonds with youth in detention 
  • Challenging the “automatic” transfer provisions through motions practice 
  • Working with IDS General Counsel on the development of a comprehensive chart on the appointment/payment/recoupment of attorneys representing transferred juveniles 
  • Participation on the Juvenile Jurisdiction Advisory Committee, with a focus on discussing ongoing conforming changes to the law, as well as the minimum age of juvenile jurisdiction in NC (it is currently 6, the lowest stated age in the U.S.) 

Take a break, settle in and get comfy, and read our 2020 Year in Review here.

Week in Review: Dec 7-11

Hello from another Friday Readers! We’re inching closer and closer to a new year and even closer to cold weather. Hope you’re staying warm and cozy while you keep up the amazing work of juvenile defense or advocating for juvenile rights. And next week, we’ll be recapping what a year 2020 has been within OJD and the NC Court System. See you then!

Raise the Age Tip of The Week

How Do I Know the State Will be Seeking the Gang Enhancement Against My Juvenile?

Under current law, there is no process for notice to the juvenile and the juvenile’s attorney that the state is seeking the gang enhancement.  As the juvenile’s attorney, you should consider the following:

  • Get a copy of the gang assessment from DJJ prior to adjudication
  • Argue that the notice of gang enhancement be presented pre-adjudication
  • Develop a theory of defense against client’s involvement in gang activity
  • Prepare for a hearing on the issue
  • Request a hearing, similar to an adjudicatory hearing
  • Request the court make findings on the record and appeal where  appropriate

ncIMPACTFaceBook Live Event

LaToya Blackmon Powell will be participating in a live panel discussion about School Justice Partnerships, hosted by Anita Brown-Graham, Professor of Public Law and Government and Director of the ncIMPACT initiative at the School of Government. The discussion will be filmed by UNC-TV as a Facebook Live event from 12-1 PM this coming Monday, December 14.

We hope you are able to attend and participate in the virtual discussion and/or share the information with others who may be interested. This is a great opportunity to ask questions and engage in an interactive conversation.

Juvenile Defense Policy and Practice Resource Guide

The National Juvenile Defender Center (NJDC) is pleased to announce the release of their updated Juvenile Defense Policy and Practice Career Resource Guide.  Every year, NJDC updates this guide to provide students and others with valuable resources to jumpstart a career in juvenile defense. NDJC has created this electronic guide to raise the profile of juvenile defense as a career.  It is intended for law students interested in pursuing juvenile defense as a career and includes information on coursework and externships that will help strengthen a candidate’s application in the juvenile defense field; resources to guide in the search for juvenile defense jobs, fellowships, and funding opportunities; and a list of offices around the country that provide employment and internship opportunities specific to juvenile defense. Please feel free to use it as a resource and share with others who may be interested!

Now Seeking 2021 “From a Lawyer’s View”  Guest Bloggers

LaTobia is looking for guest bloggers to contribute to our new series, “From a Lawyer’s View”. Defenders and those in juvenile justice are welcome to write in on topics of their expertise: secure custody, mental health in juveniles, etc! We want to hear from you! We’ll take your tips and blog posts! Reach out to LaTobia here for more information.