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.

New Policy Recommendations by the National Juvenile Justice Network

From Sarah Breyer, Executive Director of the National Juvenile Justice Network:

August 3, 2016

New Policy Recommendations!

Every year, NJJN members draft and vote on policy platforms on key issues in youth justice. They’re meant to guide and influence the creation of policy and legislation.

This year, we produced a new policy platform on confidentiality (along with a related document with detailed recommendations to ensure youth records are kept confidential), and we revisited and updated our policy platform on sex offense registries and related laws. Click here to see them.

 

 

 

 

Guest Blog – Drew Kukorowski Talks JTIP

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I recently attended the Juvenile Training Immersion Program (JTIP) co-sponsored by the National Juvenile Defender Center and Georgetown Law’s Juvenile Justice Clinic. This is a week-long trial skills program specifically designed for frontline juvenile defenders. Roughly, think bootcamp for juvenile defenders.

The program runs from Sunday evening through Saturday morning, and covers everything from competency evaluations to post-disposition advocacy. One of the best parts of the program is its lecture/breakout structure: sessions typically involved a lecture about some particular aspect of a juvenile case (e.g., Motions to Suppress Identifications, Disposition Advocacy, Probation Violations) and are followed by small-group breakout sessions. The breakout sessions give you a chance to practice implementing points from the lecture, and to get instant feedback from your instructors and fellow defenders.

The trial advocacy training is top-notch, but one of the best parts of the program was interacting with frontline defenders from around the country. I was amazed at how different each state’s juvenile delinquency system operates, and yet all of us face similar problems: the over-reliance on putting children, particularly children of color, in cages; the sacrifice of and often outright disrespect for constitutional and statutory rights in the name of efficiency and ‘getting services’; and reluctance and distaste by juvenile court actors to incorporate recent Supreme Court jurisprudence into everyday practice. We were all able to share different strategies and tactics for overcoming these injustices. I returned to North Carolina with new ideas about how I can better represent my clients in juvenile court.

Given its length, the program is exhausting, but it’s also exhilarating. You’re with fellow defenders of youth who all want to improve outcomes for their clients, and who are willing to explore innovative ways to do that. It was without question the most informative, innovative, and practical legal training I’ve ever attended. I’d encourage any defender in North Carolina to apply for next summer. Please don’t hesitate to contact me (drew@cfcrights.org) if you’re interested or have questions.

Drew Kukorowski is a public defender for young people in Charlotte. In 2012, he began working as a Staff Attorney on the Children’s Defense Team at the Council for Children’s Rights. He previously worked at the Prison Policy Initiative and Advocates for Children’s Services of Legal Aid of North Carolina.

 

NC Division of Adult Corrections and Juvenile Justice Ends Juvenile Solitary Confinement

The North Carolina Department of Public Safety, Division of Adult Correction and Juvenile Justice is ending its use of solitary confinement for its youngest inmates housed in its adult prisons system and is introducing a new youthful offender program that more appropriately and effectively focuses on the needs of these young people. This program was announced last week.  Further details about the Youthful Offender Program can be found here.

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.

NC Youth Advocacy: Making Every Experience Count

Currently in North Carolina, defenders of justice, youth advocates, lobbyists, parents, and communities are working diligently to reform our justice systems, and to create positive outcomes for youth. I am proud to say that I have also joined the fight to reform policy, defend youth, and impact the lives of our future citizenry.

Experiences

My experiences as a sister with a brother entangled in the NC justice system; as a community organizer empowering families with deeply rooted ties in broken systems; and as a youth advocate  providing a voice for those which have been silenced due to mental and physical oppression, has lead me to the path of legal defense for youth.

Personal Experiences

I was personally forced to survive the ills of the criminal justice system. In early 2013, on my brothers’ 16th birthday, he was wrongfully arrested and charged with armed robbery with a dangerous weapon and conspiracy to commit armed robbery. Police officers identified him as the suspect through an illegal show-up, thereafter he was immediately taken into custody.  As a 16 year old, he was charged as an adult and was treated as such. My mother was unable to see him for approximately a week and could not post bond due to financial hardship. With the help of state politicians and reputable juvenile justice advocates, the case was soon dismissed. Unfortunately, most youth in my brothers’ position as well as those who need effective assistance after committing a crime, usually do not have or know how to access the resources that were afforded to my sibling.

Professional Experiences

During the summer of 2010, I interned with NC Child where I helped with the grassroots movement of that year’s Raise the Age Campaign. This proposed legislation attempted to raise the juvenile court jurisdictional age from 16 to 18 for particular crimes. In 2012, I interned with the NC Office of the Juvenile Defender, where I helped with the creation of the Office of the Juvenile Defender 2013 Strategic Plan Report and Summary. I drafted the summary of the juvenile defender survey and helped to facilitate panels in an effort to collect data from juvenile court judges across the state. In 2013, I worked for NC Senator Angela Bryant, where I became accustomed to the structure of state government and the creation and implementation of state law, including laws that directly affected the criminal justice system and the youth in the state for session year 2013-2014. Also in 2013, with the leadership and guidance of The National Juvenile Justice Network and NC Child, I created and implemented Parents & Friends of Incarcerated Youth Initiative (PFIYI). PFIYI is a community development program which operates in two counties in southeastern NC. PFIYI supports parents and community members with youth in the juvenile and adult criminal justice systems.

All of my experiences have helped to empower and strengthen my intellect, ability, courage, and boldness to go into the trenches and fight to help save our youth. Through training, I have developed the ability to help youth in a multi-dimensional fashion to access community support, effective legal defense, and other helpful resources which will enable them to strive toward positive youth development.

Future Plans

Currently, I practice law as a private defense attorney. My practice is mainly focused on youth advocacy and juvenile reform in southeastern NC.  This includes criminal defense, education law reform and other youth related areas of law. My future goals include building a nonprofit youth law/advocacy center for the southeastern region. The law center will focus its attention on implementing a holistic case management system, creating a one stop shop for youth to connect with legal, social, educational, etc. services without falling through the cracks of the various institutions. Ultimately, the goal is to work with the already existing institutions to help build a system for youth that will promote positive youth development and rehabilitation for our younger population.

Sabrina Leshore, Campbell University School of Law, Class of 2013, was a 2013 Fellow of the National Juvenile Jsutice Network Youth Leadership Institute and is currently practicing law in southeastern NC