OJD Week in Review: Apr. 9 – 13

This week we’ve got a new resource we wanted to bring attention to regarding sex offender registration and a few new events to add to the previous week’s rundown.

From Around the Community

Registration is now open for the 81st Annual National Council of Juvenile and Family Court Judges Conference.  The event this year will take place at the Hyatt Regency Denver at the Colorado Convention Center from July 22 – 25.  The conference will offer presentations/training tracks on  topics such as family law, juvenile justice, child welfare, and family violence.  This conference is judicially-focused and open to all those interested in the improvement of juvenile and family justice.  For registration and further info, please visit the NCJFCJ website here.

Recertification pic

We would like to take a moment to recognize those who recently received renewed certification to specialize in juvenile delinquency during the Annual Luncheon of the N.C. State Bar Board of Legal Specialization.  Congratulations to (from left to right) Juvenile Chief of the Wake County Public Defender’s Office and Chair of the Juvenile Specialty Committee Mary Stansell, Regional Defender at N.C. Indigent Defense Services Valerie Pearce, and Juvenile Defender Eric Zogry.  Union County Attorney Anna Goodwin, who is also a member of the Juvenile Specialty Committee, was also in attendance.

The Center for Juvenile Justice Reform and the Council of State Governments Justice Center will host the 2018 Janet Reno Forum on May 21 at  Georgetown University in Washington, D.C.  The forum will highlight strategies for restructuring juvenile justice systems to more effectively enhance public safety and improve outcomes for youth.  The event will include the presentation of the second annual Janet Reno Endowment Women’s Leadership Award, and attendees will receive a publication featuring the highlighted strategies.  Policymakers, practitioners, researchers, advocates, and other stakeholders are invited to attend.  Please register here.

New Resource

Since North Carolina does not automatically require juveniles to register if they’ve been adjudicated of a sex offense, many defenders don’t think to discuss sex offender registration with their clients.  However, your client may be required to register if your client moves to another state, attends college out of state, or goes to Virginia or South Carolina for treatment.  This resource – A Snapshot of Juvenile Sex Offender Registration and Notification” will help you to advise your clients of potential issues if they leave North Carolina.  Please note that the manual is from 2010, so be sure to double-check that no new laws have been passed since then, but it’s a great starting point.  Additionally, if you find that DJJ is recommending sending your client for treatment in a state that will require your client to be on its sex offender registry (notably Virginia and South Carolina), please contact our office.  We have a motion for you to file to ask the court to enter an injunction regarding placement in a facility that would require the juvenile to register (and it’s been successful – many judges don’t understand this either).

Training

Disability Rights North Carolina will be hosting its 2018 Disability Advocacy Conference next Thursday, Apr. 19.  The conference offers 5.0 CLE credits for lawyers, which includes 1.0 credit hour for substance abuse/mental health awareness.  Sessions include parental rights, restrictive interventions in public schools, guardianship reforms, and a session exclusively tailored to attorneys titled “Recognizing and Responding to a Lawyer with a Mental Health Disorder”, just to name a few.  To learn more about this event and register please visit their web page here.

Registration is now open for N.C. Bar Association’s annual meeting, this year titled “The Future of Law”.   This event will be hosted at the Wilmington Convention Center from June 21 – 24.  For those who register before May 1, a President’s Luncheon ticket and 6.0 CLE credit hours will be included with the registration price.  Topics covered will include artificial intelligence, virtual reality, design thinking in the law, and the future of legal service delivery.  For further info and to register please check out the NCBA website and the event brochure.

RTA

On May 10, the N.C. Bar Association will be hosting “Raise the Age: A New Era for Juvenile Justice in North Carolina” at the N.C. Bar Center in Cary, from 8:25 a.m. to 3 p.m.  This seminar promises to expand attendees’ understanding of the Juvenile Justice Reinvestment Act and its practical and ethical implications.  Attendees will receive 5.5 CLE credits total, with 1.0 CLE credit in Ethics/Professional Responsibility and 4.5 General CLE credits.  For further details about this event, please check the website here.

We hope you saved the date!  It was recently announced that the 2018 Defender Trial School, cosponsored by the School of Government and the North Carolina Office of Indigent Defense Services, will be held Monday, July 9 through Friday, July 13, 2018, at the School of Government on the UNC-Chapel Hill campus.  Defender Trial School participants will use their own cases to develop a cohesive theory of defense at trial and apply that theory through all stages of trial, including voir dire, opening and closing arguments, and direct and cross-examination.  The program will offer approximately 30 hours of general CLE credit and qualifies for NC State Bar criminal law specialization credit.  The Defender Trial School is open to public defenders and a limited number of private attorneys who perform a significant amount of appointed work.  Further details will be provided on the course page in the near future.  Any questions or requests for additional info should be directed to Tanya Jisa at jisa@sog.unc.edu / 919.843.8981 or Professor John Rubin at rubin@sog.unc.edu/ 919.962.2498.

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Job Opportunities

The National Center for Youth Law (NCYL) is seeking a mid-level policy attorney to handle youth justice issues in Santa Clara County.  Applications will be accepted until Sunday, Apr. 15, so get yours in soon!  For further details and to apply please check here.

The National Juvenile Justice Network (NJJN) is still accepting applications for its 2018-19 Youth Justice Leadership Institute.  This is an annual year-long fellowship program that selects 10 people of color working as professionals in the juvenile justice field to participate in a curriculum to develop their leadership and advocacy skills.  The fellowship can be completed with the fellows’ current employment, so those selected will not have to leave their jobs to participate in the Institute.  The fellowship will include two fully financed retreats, mentoring and frequent distance learning opportunities.  Applications for the Institute (found here) must be submitted by Apr. 23.

The National Juvenile Defender Center (NJDC) is currently hiring a strategic communications manager.  The individual in this position will be responsible for crafting organizational messaging, overseeing editorial excellence, and working with leadership to implement a communications strategy that is creative, forward-thinking, and reflective of NJDC’s vision.  This position will remain opened until filled.  To find further info about the position and how to apply, please go here.

The UNC School of Government is seeking a tenure-track full-time permanent assistant professor of juvenile justice and criminal law.  The selected candidate for this position will be expected “to write for, advise, plan courses for, and teach” public officials, including judges, magistrates, law enforcement, prosecutors and defenders.  Applications will remain open until the position is filled.  The expected starting date for the new hire will be July 1.  Please find the full details for the position and how to apply here.

This will do it for now.  We will be in contact with a few members of the N.C. juvenile defender community soon, providing a survey to gather feedback to improve our communications as we did last year.  If you do not receive an email from us with a link to the survey, please feel free to contact us any time with your thoughts for our blog, podcast, Facebook, Twitter, or the listserv.    We are always seeking ways to provide better support to defenders.  Thank you for reading and we will be sure to share more next week!

OJD Week in Review: Mar. 5-9

This week we’ve got a new update regarding Raise the Age, a valuable resource for defenders and, as usual, we’ve got some new training opportunities and job opportunities for you as well.

New JJAC Report

RTA

The Juvenile Justice Advisory Committee (JJAC) released its first report on Mar. 1, which can now be found on our “Raise the Age” page under the “Information for Defenders” tab.  We’ve added a new section to the “Raise the Age” page dedicated to providing updates from JJAC to allow everyone to follow the Committee’s progress.  This report details the key implementation dates for initiatives proposed in the Juvenile Justice Reinvestment Act, the Committee’s requests for a unified video conferencing system, recommendations for transfer and housing of juveniles, requests from JJAC, OJD, and the Administrative Office of the Courts for additional funding, staff and other resources, dates for community and stakeholder forums, and other recommendations and plans of JJAC and its subcommittees.  A summary of the JJAC meeting prior to the report can be found here on our site.

Job/Fellowship Opportunities

The National Juvenile Defender Center (NJDC) is currently hiring a strategic communications manager.  The individual in this position will be responsible for crafting organizational messaging, overseeing editorial excellence, and working with leadership to implement a communications strategy that is creative, forward-thinking, and reflective of NJDC’s vision.  This position will remain opened until filled.  To find further info about the position and how to apply, please go here.

The UNC School of Government is seeking a tenure-track full-time permanent assistant professor of juvenile justice and criminal law.  The selected candidate for this position will be expected “to write for, advise, plan courses for, and teach” public officials, including judges, magistrates, law enforcement, prosecutors and defenders.  Applications will remain open until the position is filled.  The expected starting date for the new hire will be July 1.  Please find the full details for the position and how to apply here.

The National Juvenile Justice Network (NJJN) is now accepting applications for its 2018-19 Youth Justice Leadership Institute.  This is an annual year-long fellowship program that selects 10 people of color working as professionals in the juvenile justice field to participate in a curriculum to develop their leadership and advocacy skills.  The fellowship can be completed with the fellows’ current employment, so those selected will not have to leave their jobs to participate in the Institute.  The fellowship will include two fully financed retreats, mentoring and frequent distance learning opportunities.  NJJN has already hosted one informational webinar on Mar. 8 and will host the next on Apr. 2.  To register for one of this webinar, please visit here.  Applications for the Institute (found here) must be submitted by Apr. 23.

 

Training

JD Leadship Summit 2018Save the Date!  NJDC will be hosting the 2018 Juvenile Defender Leadership Summit in St. Paul, Minnesota on Oct. 26-28.  We will be sure to provide further details for this event as they arrive.

Disability Rights North Carolina will be hosting its 2018 Disability Advocacy Conference on Apr. 19.  The conference offers five CLE credits for lawyers, including one credit hour for substance abuse/mental health awareness.  Sessions include parental rights, restrictive interventions in public schools, guardianship reforms, and a session exclusively tailored to attorneys titled “Recognizing and Responding to a Lawyer with a Mental Health Disorder”, just to name a few.  To learn more about this event and register please visit their web page here.

On March 12, 2018, from 4 to 5 p.m. ET, the Council of Juvenile Correctional Administrators‘ Positive Youth Outcomes Committee will host “Classroom Excellence in Secure Residential Facilities.” This webinar will highlight work to improve the quality of education provided to at-risk, low-income, minority teenagers and young adults who are attending schools in alternative settings, including youth correctional facilities.  You can register for the webinar here.

New Resources

The Office of Juvenile Justice and Delinquency Prevention (OJJDP) has released the Juvenile Residential Facility Census Databook, the latest addition to the Data Analysis Tools section of its Statistical Briefing Book. National and state data from 2000 to 2014 describing the characteristics of residential placement facilities that hold juvenile offenders are now available for analysis. This includes operation, classification, size, and crowding.

Events Around the Community

The North Carolina Bar Association Juvenile Justice and Children’s Rights Section will be holding a council meeting on March 22, from 4 p.m. to 5 p.m.  A networking reception will be held directly after the meeting at Whiskey Kitchen on 201 W. Martin St. and appetizers and a cash bar will be provided.  All section members and attorneys who could be members are welcome to attend and may RSVP here.

And that sums it up for this week.  We will have some more updates to our social media channels and more news you can use in the coming weeks, so please check back with us often.  Invitations are still open for guest bloggers and podcast guests as well, so feel free to reach out.  Until next week, we wish you well!

OJD Week in Review: Feb. 19-23

This week we’ve got plenty of important news to share, with updates on Raise the Age, a new podcast, and job and training opportunities.

JJAC Comes Back for Thirds

On February 20, the Juvenile Jurisdiction Advisory Committee (JJAC) met at the N.C. Division of Adult Corrections and Juvenile Justice for its third meeting since its creation.

JJAC

Co-chair Bill D. Davis called the meeting to order, greeting the members of the Committee and others in attendance, before approving the minutes of the previous meeting held in January, and moving onto the new business.

Heather Taraska, Assistant District Attorney of Mecklenberg County, presented the Legislative Revisions and Legal Issues Subcommittee recommendations.  The subcommittee first reported on the mandate in SB257 that the JJAC consider whether certain offenses allegedly committed by 16- and 17-year-olds should be excluded from juvenile jurisdiction once the law goes into effect.  Those offenses can be found under Section 16D.4(rr).  The subcommittee recommended that these offenses not be excluded from juvenile jurisdiction, arguing the impracticality of expecting law enforcement to determine whether juveniles should be charged in the juvenile or criminal system based on certain offenses.  Michelle Hall, Executive Director of the N.C. Sentencing and Advisory Commission, offered statistical data from a five-year period to point out that most felony convictions for certain offenses have actually been accompanied by other charges for juveniles.  The full Committee then voted and approved the subcommittee’s recommendations to include items in Section 16D.4.(rr) (1) through Section 16D.4.(rr)(10) in juvenile jurisdiction and amend the language of this section to read “Any H, I, or misdemeanor offense requiring registration as a sex offender pursuant to Article 27A of Chapter 14 of the General Statutes.”

Following this vote William Lassiter, Deputy Secretary of Juvenile Justice with the Department of Public Safety, presented on behalf of the Housing of Transfers Subcommittee.  The subcommittee’s recommendations included accommodating any child under the age of 18 exclusively in approved juvenile facilities prior to trial, more resources and training of transportation staff, and establishing a unified video conferencing system to allow communications between juvenile detention, adult detention facilities, and the courts.  There were some concerns voiced from the Committee about privacy between juveniles and their defense counsel in regards to the video conferencing recommendation and preparing juveniles to transition into the adult system if they are held in custody on their 18th birthday.  After suggestions were offered to address some of the issues members had with the recommendations in future discussions, the Committee passed these recommendations.

Juvenile Defender Eric Zogry also brought a recommendation to the Committee to fund an additional assistant juvenile defender position for the Office of the Juvenile Defender.  Zogry explained the position would help with training, delivery of services, and technical support needs upon implementation.  The Committee gave approval for the position.

Lassiter returned to offer the proposal for the final report due on March 1 to the Legislature.  The report is to include the approved recommendations from JJAC, timelines for potential stakeholder forums and community meetings, potential issues projected for the future, and milestones and progress to-date.  Implementation dates and funding requests for various aspects of the Raise the Age plan are also to be included.

Finally, Brad D. Fowler, Research, Policy, and Planning Officer of the Administrative Office of the Courts (AOC), and Judge Marion R. Warren, Director of AOC, presented AOC’s requests for funding, which included additional judgeships, assistant district attorneys, district attorney legal assistants, and deputy clerks for several different districts.  With a request to amend the language to the recommendations clarifying the methodology for determining the needs and acknowledging more resources may be needed after implementation, the Committee approved this as well.

The Committee adjourned the meeting and confirmed its next meeting for May 22.

 

Job/Fellowship Opportunities

The UNC School of Government is seeking a tenure-track full-time permanent assistant professor of juvenile justice and criminal law.  The selected candidate for this position will be expected “to write for, advise, plan courses for, and teach” public officials, including judges, magistrates, law enforcement, prosecutors and defenders.  Applications will remain open until the position is filled.  The expected starting date for the new hire will be July 1.  Please find the full details for the position and how to apply here.

The National Juvenile Justice Network (NJJN) is now accepting applications for its 2018-19 Youth Justice Leadership Institute.  This is an annual year-long fellowship program that selects 10 people of color working as professionals in the juvenile justice field to participate in a curriculum to develop their leadership and advocacy skills.  The fellowship can be completed with the fellows’ current employment, so those selected will not have to leave their jobs to participate in the Institute.  The fellowship will include two fully financed retreats, mentoring and frequent distance learning opportunities.  NJJN will be hosting two informational webinars, one on Mar. 8 and another on Apr. 2.  To register for one of these webinars, please visit here.  Applications for the Institute (found here) must be submitted by Apr. 23.

Heard About the New Juvenile Defender Manual?

David Andrews Profile Picture - SmallWe’ve updated our SoundCloud page with a new podcast!  In this segment, OJD Communications and Office Manager Marcus Thompson sits down for a Q&A with Assistant Appellate Defender David Andrews to discuss Andrews’ work on the updated juvenile defender manual.  Andrews not only talks about his experience co-writing the manual with Professor John Rubin, but also shares thoughts on Gault, Raise the Age, and some other important cases.  You can listen to the new podcast here, and as usual, we’d like to thank our friends at the Administrative Office of the Courts who have graciously assisted us with these recordings.

Events Around the Community

The North Carolina Bar Association Juvenile Justice and Children’s Rights Section will be holding a council meeting on March 22, from 4 p.m. to 5 p.m.  A networking reception will be held directly after the meeting at Whiskey Kitchen on 201 W. Martin St. and appetizers and a cash bar will be provided.  All section members and attorneys who could be members are welcome to attend and may RSVP here.

Training Reminders & Webinars

The National Institute of Justice will be hosting a webinar titled “Using Brief Interventions to Prevent Teen Dating Violence” on Feb. 26, from 1 p.m. to 2:30 p.m. (EST).  The webinar will feature several researchers, policy advocates, and practitioners discussing methods to reduce teen dating violence in high-risk populations.  You can register for the webinar here.

Clean Slate Clearinghouse will be hosting a webinar on Feb. 28 titled “Juvenile Record Clearance — 2017 Legislative Reforms”  This webinar will focus on various state reforms to juvenile record clearance laws and will feature multiple state advocates.  To register for this webinar, please visit here.
yoda training

Registration is open for Higher-Level Felony Defense, Part I.  This training will take place April 9-10 and will offer 9.0 CLE credit hours.  Topics will include working with investigators and experts, building rapport with clients, investigation and discovery, the theory of defense, and third-party records.  Space is limited for only 36 participants, so please hurry if you are interested in participating!  Members of public defender offices should get approval from the Chief Public Defender to register and contractors and privately assigned counsel must receive a fellowship from IDS Director Tom Maher.  For more information on registration, the agenda, and hotel information please visit here.

The Center for Juvenile Justice Reform(CJJR) is accepting applications for its Youth in Custody Certificate Program, to be held June 11–15, 2018, at Georgetown University in Washington, DC.  This training is designed for juvenile justice system leaders and partners working to improve outcomes for youth in post-adjudication custody.  The curriculum covers critical areas, including culture change and leadership, addressing racial and ethnic disparities, family engagement, assessment, case planning, facility-based education and treatment services, and reentry planning and support.  Upon approval of a Capstone Project Proposal initiating or building on local reform efforts, participants receive an Executive Certificate from Georgetown University and join the CJJR Fellows Network of more than 850 individuals.  Applications will be accepted until March 2.

New Resource

This week we’ve added a new document from the Department of Adult Corrections and Juvenile Justice to our Raise the Age page, located under the “Information for Defenders” tab. This presentation from Deputy Secretary William Lassiter presents points on the history, the implementation plan, and the vision for what Raise the Age will do for N.C.  This document also offers suggestions to reduce recidivism, youth psychological development research, and other data.

That’s all there is to share this week.  Please be sure to check out our Facebook page and Twitter feed, and don’t be afraid to reach out if you would like to discuss something in the juvenile defense realm either through our podcast or on our blog.  We will be sharing more news you can use and other information here every week so be sure to check back again often!

 

New Resources for Miller and Transfer Cases

Earlier this year, the Supreme Court of the United States issued its opinion in Montgomery v. Louisiana, 193 L. Ed. 2d 599, 622 (2016), which made the holding of Miller v. Alabama, 183 L. Ed. 2d 407, 424 (2012), retroactive. Miller, of course, held that mandatory life without parole sentences for juvenile defendants violate the Eighth Amendment ban on cruel and unusual punishment. However, Miller also laid the groundwork for the Court’s determination in Montgomery that a discretionary life without parole sentence also violates the Eighth Amendment “for a child whose crime reflects ‘unfortunate yet transient immaturity.’” Montgomery, 193 L. Ed. 2d at 619 (quoting Miller, 567 U.S. at ___, 183 L. Ed. 2d at 424).

To help attorneys prepare for these hearings, a working group of attorneys from the Office of the Juvenile Defender, the Office of the Capital Defender, the Office of the Appellate Defender, and North Carolina Prisoner Legal Services has developed a handout entitled, “Strategies for Litigating Miller Cases.” The handout provides advice for obtaining mitigating evidence, a description of the research that influenced Miller and Montgomery, a discussion of constitutional arguments against life without parole sentences, and much more. The handout also provides hyperlinks to sample motions and other resources that will aid attorneys as they defend their clients in these cases.

However, for the juvenile defense bar, the handout’s usefulness is not limited to cases involving litigation of a life without parole sentence for a juvenile who is 16 or 17 years old or a 13-, 14-, or 15-year-old who has been transferred to superior court on a first degree murder charge. Many juvenile defense attorneys have to defend their 13-,14-, and 15-year-old clients from discretionary transfer to the adult system if they have been charged with a serious felony and the district attorney requests transfer. The handout provides arguments and resources that can be used to argue against transfer during the discretionary transfer hearing. Counsel should follow the advice in sections III, IV, and VI in the handout to present a comprehensive view of the juvenile to the court and argue that the juvenile should remain in juvenile court in order to receive treatment and rehabilitation that is unavailable in superior court.

If you are appointed to handle a case involving a new first-degree murder charge against a juvenile client or your client may be subjected to discretionary transfer, please be sure to review the handout, which is available in the “Transfer Hearings” section on the Office of the Juvenile Defender website and the “Litigation Guides” section on the Appellate Defender website. In addition, if you are interested in joining a listserv about Miller issues, please send an email to David Andrews, Assistant Appellate Defender, at David.W.Andrews@nccourts.org. The listserv will enable attorneys in the working group to post new appellate court decisions on Miller issues and provide a forum for questions on Miller cases. Finally, please stay tuned for announcements on training events for Miller cases. Over the next several months, the working group will develop presentations on Miller issues and will work to share those presentations to attorneys across the state.

Tips on Using Age to Defend Juvenile Clients in Criminal Court, Part 2 – by Guest Blogger John Mills

The North Carolina Court of Appeals has recently released a couple of important opinions for juvenile justice.  The first, State v. Bowlin, I covered in a prior post.  Here, I’ll cover State v. Collins.*  As with the prior post, I’ll provide an overview of the opinion and some of its implications, providing some practice points along the way.

In Collins, the Court of Appeals was considering a rather straightforward question with profound implications for Mr. Collins: whether the state admitted sufficient evidence of the Superior Court’s jurisdiction.  The court was considering four offenses.  The state’s evidence showed that one offense took place prior to Mr. Collins’ sixteenth birthday.  The state’s evidence was, at best, ambiguous about two offenses.  And its evidence was clear that the fourth took place after his sixteenth birthday.

Practice Point 1: Be sure that you know that you know your client’s date of birth, and be prepared to prove it with admissible evidence (other than your client’s testimony).  If a gas station is able to implement a universal i.d. check policy, then so can you.

When the offenses took place was critical because if they were prior to his sixteenth birthday, then the District Court had exclusive, original jurisdiction over them.  If they took place after, then the jurisdiction was proper in the Superior Court.

This distinction had major implications for Mr. Collins.  In District Court, the judge could choose whether or not to treat him as an adult.  That court had the power, based on his circumstances, to determine whether and for how long juvenile custody was appropriate and to consider additional programming aimed at rehabilitation.  In Superior Court, the judge would be required to impose mandatory minimums under the Structured Sentencing Act.

Practice Point 2: Make the most of the transfer hearing.  It is an opportunity to make all manner of equitable arguments on the behalf of your juvenile client.

To make a decision about whether to treat a juvenile offender as an adult, a District Court must consider eight factors about the juvenile, including the age, maturity, intellectual functioning, and capacity for rehabilitation.  These factors provide significant leeway for presenting evidence helpful to your client.  Evidence related to both the juvenile and the juvenile’s community can be considered.   A wide range of witnesses—including expert witnesses—should be considered for presentation at the transfer hearing: parents and relatives, teachers, psychologists, psychiatrists, religious leaders, coaches, friends, and any other person who knows the client well.

The argument against transfer should focus on the specifics of your client.  Knowing your client well will enable you to make a compelling case against treating your client like an adult, exposing your client to a lengthy prison sentence.

Practice Point 3: Even if you receive an adverse decision at the transfer hearing, the evidence you develop for the hearing could be presented in a sentencing hearing in Superior Court.

Even if the transfer hearing does not go well and if your client is convicted, the evidence you prepared for the transfer hearing may be presented at a sentencing proceeding.  At sentencing, the judge will consider the defendant’s age, maturity, mental capacity, potential support in the community, character, and “any other factor reasonably related to sentencing.”   The work you put in to develop a robust presentation at the transfer hearing will serve you well if you find yourself in a sentencing proceeding in Superior Court.

For Mr. Collins, ultimately, the Court of Appeals vacated three of his four convictions.  For the fourth, the one for the conduct committed as a sixteen year old, the court ordered that he be resentenced.

Juvenile cases present a myriad of legal issues.  Our juvenile clients have a heightened capacity for change and rehabilitation, and we owe it to them to make the best case possible for leniency, both at the transfer hearing and at sentencing.

John Mills is a Principal Attorney at the Phillips Black Project and a Lecturer at UC Berkeley School of Law.  He represents death-sentenced inmates and juveniles facing life without parole sentences and conducts research on the administration of our nation’s harshest punishments.

*I served as counsel of record in Collins.

Tips on Using Age to Defend Juvenile Clients in Criminal Court, Part 1 – by Guest Blogger John Mills

Last month, the North Carolina Court of Appeals issued two important juvenile justice decisions.  The first, State v. Bowlin, addressed whether the Eighth Amendment prohibits a juvenile offender from being subject to a mandatory minimum sentence.  The second, State v. Collins, addressed the role of a juvenile’s age and the jurisdiction of the Superior Court.  I’ll cover them in two guest posts.  Each will come with practice points and a brief discussion of the legal background.  I’ll start right here with Bowlin.

Mr. Bowlin’s charges arose out of three alleged incidents of sexual assault of one of the daughters in the family with whom he was living.  At the time of the incidents, the girl was six and Mr. Bowlin was fifteen.  When the girl was thirteen, she revealed the abuse, and Mr. Bowlin, then twenty-two was ultimately convicted at trial.

The state filed a petition in the juvenile court.  Because of his age, by statute, the District Court was forced to choose between dismissing the case (allowing Mr. Bowlin to escape any punishment) and transferring the case to Superior Court (where Mr. Bowlin would face adult sentencing ranges).  The District Court transferred the case.

Practice Point 1: In Superior Court, when representing a person who was less than eighteen at the time of the offense, ask the court to consider the person’s age a mitigating circumstance.  If the court refuses, object, citing the Eighth and Fourteenth Amendments to the U.S. Constitution and to Article I, section Twenty-Seven of the North Carolina Constitution.

In Superior Court, Mr. Bowlin pled guilty.  At sentencing, the Superior Court rejected Mr. Bowlin’s age at the time of the offense as a mitigating factor.  When he was sentenced (and again on appeal), Mr. Bowlin raised an Eighth Amendment challenge to the sentence: being subjected to a mandatory minimum designed for adults for an offense he committed as a fifteen year old is cruel and unusual punishment.  He argued that, because of his age, the sentencing court should have had discretion to impose a shorter sentence than the minimum sentence imposed on adult offenders.

The Court of Appeals rejected the argument.  It held that his sentence was not “grossly disproportionate” to the offense.  The lack of disproportion ended the inquiry for the court because the sentence was to a term of years. Without explaining why, the court also “note[d] that the trial court exercised its discretion to consolidate the offenses and to sentence the defendant in the mitigated range, but chose not to find ” that Mr. Bowlin’s age at the time of the offense was mitigating.  The court did not explain the significance of its note.  A petition for discretionary review to the North Carolina Supreme Court has been filed but not yet ruled on.

The court’s bottom line holding is in conflict with at least two recent cases either invalidating or calling into question mandatory minimums for juvenile offenders. Until the North Carolina Supreme Court takes up this important constitutional question, Eighth Amendment challenges to mandatory minimums, even imposed on juveniles, may prove unavailing.

However, the court’s note highlights two open questions about juvenile sentencing in North Carolina.  First, is a juvenile offender ever entitled, as a matter of law, to have age found as a mitigating factor? Second, if a sentencing court lacks discretion to consider a juvenile’s age and craft a sentence accordingly, does that sentence comply with the Eighth Amendment?

Starting in 2005, the U.S. Supreme Court has time and again recognized “what every parent knows”:  juveniles (1) “lack maturity and have an underdeveloped sense of responsibility leading to “ill-considered actions and decisions,” (2) are “susceptible to negative influences,” and (3) have a personality and character that is “not as well formed.”   For these reasons, the high Court has held that the primary purposes of punishment—retribution, deterrence, and rehabilitation—are ill-served by imposing lengthy prison sentences on juveniles.  Most recently, the Court explained that these facts about juveniles means “a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect ‘irreparable corruption.’”

Practice Point 2: Throughout the case, but particularly in transfer proceedings and at sentencing, link the Supreme Court’s language about a juvenile client’s limitations to your client’s behavior and make the case that your client is a good candidate for rehabilitation.

Returning to the first open question, the U.S. Supreme Court’s repeated reliance on these basic facts to hold that a juvenile’s culpability is less than that of an adult calls into question any sentencing judge’s decision that age is not a mitigating factor (something not challenged in Bowlin).  When representing a juvenile in Superior Court sentencing proceedings, there is no reason not to object—citing the Eighth and Fourteenth Amendments to the U.S. Constitution and to Article 1, section 27 to the North Carolina Constitution—to a sentencing judge’s decision not to find that the age of a juvenile client is a mitigating factor.  For reasons similar to the limitations inherent to youth, the U.S. Supreme Court has held that limitations in cognitive functioning are “inherently mitigating.”  We should demand courts hold the same regarding our juvenile clients’ age and ask them to find a juvenile’s age mitigating as a matter off law.

The second open question is narrower: whether the Eighth Amendment is satisfied if the sentencing court has no discretion to tailor the sentence to the defendant’s age.  The context in which this arises in North Carolina is felony murder by a person less than eighteen years old.  A juvenile convicted of felony murder receives a life sentence without possibility of parole for twenty-five years.  No other sentence is available.  There is no shortage of scholarship explaining the case for an Eighth Amendment bar to blocking sentencers from considering a juvenile offender’s age and crafting a sentence accordingly.  The basic argument is that “children are different” and require the increased protection of individualized consideration vis-à-vis a discretionary sentence.  If the argument holds, then the mandatory sentence of twenty-five to life violates the Eighth Amendment.  The Court of Appeals’ apparent need to “note” that there was discretion suggests this may be an issue it will need to take up in the future.

Regardless, Bowlin highlights the ongoing importance of being attuned to the limitations that our juvenile clients have and the need to link those limitations to why our clients are good candidates for rehabilitation and mercy.

John R. Mills is a Principal Attorney with Phillips Black, a non-profit, public interest law practice.

State v. Antone: How to Apply Juvenile Life Decision to Other Delinquency Procedures

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On April 7, 2015 the North Carolina Court of Appeals reversed the ruling for life without parole for Mr. Antone, a 16 year old convicted of robbery with a dangerous weapon and first degree murder (you can find the decision here).  Mr. Antone, represented by Assistant Appellate Defender David W. Andrews, argued that the superior court failed to follow the statutory mandate to make findings of any mitigating factors pursuant to N.C.G.S. 15A-1340.19B.  The Court of Appeals found that the language “shall” mandates that the trial court comply with the requirements of the statute.  In Mr. Antone’s case, the superior court failed to make findings on several of the enumerated mitigation factors.  The Court of Appeals also noted that the superior court merely recited testimony, instead of the “better practice” of making evidentiary findings of fact to resolve conflicts in evidence.

There are several procedures in the Juvenile Code where this same analysis is applicable.  Specifically, defenders should consider enforcing findings of fact in transfer hearings and disposition hearings.  Under N.C.G.S. 7B-2203, the court is to consider eight separate and distinct factors in determining whether the protection of the public and the needs of the juvenile will be served by transfer.  It is not uncommon for the court to emphasize particular factors, or not address other factors at all. Defense counsel should remind the court of its duty to consider all factors, object when the court fails to follow the statutory mandate, and preserve the record for appeal.   Similarly N.C.G.S. 7B-2501 sets out factors for the court to consider in determining the most appropriate disposition.  Too often the court enters a standard disposition, not considering the statutorily mandatory factors listed.  Defenders should focus on the factors that individualize their client and advocate for the court to enter a disposition that is tailored to their client’s specific needs. As stated above, counsel should object when the mandated factors are not considered and preserve the record for appeal.