1. Navigating Recent Amendments to Utah's Serious Youth Offender Statute 78A-6-702 UACDL 2014 Juvenile Law Seminar Andrea Martinez Patrick Corum

2. HB 185 2014 JUVENILE DETENTION FACILITIES AMENDMENTS  78A-6-702(6)  At the time the minor is bound over to the district court, the juvenile court shall make the initial determination on where the minor shall be held.

3. JUVENILE DETENTION FACILITIES AMENDMENTS  78A-6-702(7)  The juvenile court shall consider the following when determining where the minor shall be held until the time of trial:

4. JUVENILE DETENTION FACILITIES AMENDMENTS 78A-6-702(7) (a) the age of the minor; (b) the nature, seriousness, and circumstances of the alleged offense; (c) the minor's history of prior criminal acts; (d) whether detention in a juvenile detention facility will adequately serve the need for community protection pending the outcome of any criminal proceedings; (e) whether the minor's placement in a juvenile detention facility will negatively impact the functioning of the facility by compromising the goals of the facility to maintain a safe, positive, and secure environment for all minors within the facility; (f) the relative ability of the facility to meet the needs of the minor and protect the public; (g) whether the minor presents an imminent risk of harm to the minor or others within the facility; (h) the physical maturity of the minor; (i) the current mental state of the minor as evidenced by relevant mental health or psychological assessments or screenings that are made available to the court; and (j) any other factors the court considers relevant.

5. JUVENILE DETENTION FACILITIES AMENDMENTS 78A-6-702(8) If a minor is ordered to a juvenile detention facility under Subsection (7), the minor shall remain in the facility until released by a district court judge, or if convicted, until sentencing. 78A-6-702(9) A minor held in a juvenile detention facility under this section shall have the same right to bail as any other criminal defendant.

6. JUVENILE DETENTION FACILITIES AMENDMENTS 78A-6-702 (10) If the minor ordered to a juvenile detention facility under Subsection (7) attains the age of 18 years, the minor shall be transferred within 30 days to an adult jail until released by the district court judge, or if convicted, until sentencing. 78A-6-702 (11) A minor 16 years of age or older whose conduct or condition endangers the safety or welfare of others in the juvenile detention facility may, by court order that specifies the reasons, be detained in another place of pretrial confinement considered appropriate by the court, including jail or other place of confinement for adults. 78A-6-702 (12) The district court may reconsider the decision on where the minor will be held pursuant to Subsection (6).

7. JUVENILE DETENTION FACILITIES AMENDMENTS Amendments also apply to Certification cases under UCA 78A-6-703

8. HB 105 2013 SERIOUS YOUTH OFFENDER AMENDMENTS 78A-6-702(3) (b) If the juvenile court judge finds the state has met its burden under this Subsection (3), the court shall order that the defendant be bound over and held to answer in the district court in the same manner as an adult unless the juvenile court judge finds that all of the following conditions exist: it would be contrary to the best interest of the minor and to the public to bind over the defendant to the jurisdiction of the district court.

9. Retention Factors Overarching retention factor : Best Interests of Minor AND Public These interests are NOT mutually exclusive

10. Retention Factors (c) In making the bind over determination, the judge shall consider only the following: (i) whether the minor has not been previously adjudicated delinquent for an offense involving the use of a dangerous weapon which would be a felony if committed by an adult;

11. Retention Factor #2 (ii) that if the offense was committed with one or more other persons, whether the minor appears to have a greater or lesser degree of culpability than the codefendants; and

12. Retention Factor #3 (iii) that the extent to which the minor's role in the offense was not committed in a violent, aggressive, or premeditated manner.;

13. Retention Factor #4 (iv) the number and nature of the minor's prior adjudications in the juvenile court; and

14. Retention Factor #5 (v) whether public safety is better served by adjudicating the minor in the juvenile court or in the district court.

15. Retention Hearing Procedure (3)(d) Once the state has met its burden under Subsection (3)(a) as to a showing of probable cause, the defendant shall have the burden of going forward and presenting evidence that in light of the considerations listed in Subsection (3)(c), it would be contrary to the best interest of the minor and the best interests of the public to bind the defendant over to the jurisdiction of the district court.

16. Retention Hearing Burden of Proof (3)(e) If the juvenile court judge finds by clear and convincing evidence that it would be contrary to the best interest of the minor and the best interests of the public to bind the defendant over to the jurisdiction of the district court, the court shall so state in its findings and order the minor held for trial as a minor and shall proceed upon the information as though it were a juvenile petition.

17. HB 105 Legislative History  Utah Senate Judiciary Committee Hearing on H.B. 105 3/5/2013  http://utahlegislature.granicus.com/MediaPlayer.php?clip_id =3018&meta_id=80873 http://utahlegislature.granicus.com/MediaPlayer.php?clip_id =3018&meta_id=80873  Utah House Judiciary Standing Committee Hearing on H.B. 105 on 2/22/2013  http://utahlegislature.granicus.com/MediaPlayer.php?clip_id =2796&meta_id=76536 http://utahlegislature.granicus.com/MediaPlayer.php?clip_id =2796&meta_id=76536

18. HB 105 Legislative History Jacey Skinner (then Chair of the Utah Sentencing Commission) the original intent of the SYO statute was to transfer the “worst of the worst” juvenile offenders and those that had “exhausted the resources of the Juvenile Justice System.” Paul Boyden (SWAP) original intent of SYO statute was to identify those cases which are “so violent and are so shocking to the conscience of the community” that “these kids” simply must be “tried as adults because of the horrendous things that they’ve done.” V.L. Snow (sponsor of HB 105) “clearly” there were some crimes that are so “egregious and heinous” that transfer is required

19. HB 105 Legislative History Old SYO statute NOT identifying those cases The large majority of cases sent to adult court received probation Rehabilitation was not the purpose of sending juveniles to adult court – the only legitimate purpose of sending juveniles to adult court is retribution and/or long-term confinement.

20. HB 105 Legislative History  If a case warranted or received probation, then the only appropriate place to do that is in juvenile court because the juvenile court provides absolutely necessary services that are just not available in adult court.  Simply stated, the adult court system and adult correctional systems are not equipped to deal with juveniles.  The court is placing them on probation, starting them out with a serious felony offense, and essentially “sending them on their way.” As a result, the chances of success on adult probation are dismal for juveniles, there is a high risk of reoffending, and recidivism is actually increased by transferring cases into the adult court.  As stated succinctly by Jacey Skinner “they do not do well.”  Not surprisingly, juveniles who are transferred to adult court, “particularly for violent offenses,” reoffend “sooner and more frequently than those who are similarly situated and handled in the juvenile court system.”

21. HB 105 Legislative History  In contrast, Susan Burke, Director of Juvenile Justice Services outlined for the Legislature all of the various services that are available to the juvenile court and not the adult court judges.  Focusing on a Comprehensive Risks and Needs Assessment, treatment and intervention requirements are developed that also take into account public safety and accountability.  All of these treatments are “developmentally appropriate” and “focus on education.”  Also, the juvenile’s “mental health needs” and “cognitive deficits” are identified and treated – in a wide range of facilities that deal specifically with substance abuse treatment, behavioral disorders, sex offender treatment, or truly any other kind of “specialized treatment services” identified.

22. Retention Hearing or Mini-Certification  Factors #1 – 3 are fairly straightforward  Previous adjudication involving weapon  Degree of culpability if co-defendants  Extent to which crime committed in violent, aggressive, or premeditated manner

23. Retention Hearing or Mini-Certification  Factor #4 is where the specialized knowledge comes into play: the number and nature of the minor's prior adjudications in the juvenile court  Prior charges?  Prior probation?  What services received in juvenile court?

24. Retention Hearing or Mini-Certification  Factor #5 gets much more complicated - whether public safety is better served by adjudicating the minor in the juvenile court or in the district court.  Public Safety is almost always better served by retention!!

25. Public Safety  Studies show that adolescents are more likely to engage in risky behavior than their adult counterparts. Laurence Steinberg, The influence of neuroscience on US Supreme Court decisions about adolescents’ criminal culpability, N ATURE R. N EUROSCIENCE, 513 (2013)  However,, this type of risky behavior decreases with age. Id.  Indeed, there is evidence to suggest that “more than 90% of all juvenile offenders desist from crime by their mid-20s.” Id. at 516.  That number decreases, however, for youth punished as adults.

26. Public Safety  Six large-scale studies have consistently found higher recidivism rates for juveniles convicted in adult courts than similar offenders who were tried in juvenile courts. Richard E. Redding, Juvenile Transfer Laws: An effective Deterrent to Delinquency?, JUVENILE JUSTICE BULLETIN, Office of Juvenile Justice and Delinquency Prevention, 2 (June, 2010)

27. Public Safety  In one study, 15- and 16-year-old youths charged with robbery and burglary in New York City were compared others youths charged with the same crime in demographically similar areas of New Jersey. Elizabeth Scott & Laurence Steinberg, Social Welfare and Fairness in Juvenile Crime Regulation, 71 La. L. Rev. 35, 64 (2010)  New York automatically transferred these minors to adult court, New Jersey did not - juveniles convicted and sentenced for robbery in New York (the adult system) reoffended sooner and at a higher rate than those who stayed in the juvenile system in New Jersey

28. Public Safety  Another study conducted by the Centers for Disease Control and Prevention (“CDC”) wherein researchers systematically reviewed all published studies on transfer policies concluded that “the ‘use of transfer laws and strengthened transfer policies is counterproductive to reducing juvenile violence and enhancing public safety.’” See Exhibit C, Ryan, Youth in the Adult Criminal System, 35 C ARDOZA L. R EV at 1177

29. Public Safety  Similarly, a study in Florida (G, Redding, Juvenile Transfer Laws, JUVENILE JUSTICE BULLETIN, at 5) found that:  Overall, 49 percent of the transferred offenders reoffended, compared with 35 percent of the retained offenders.  For violent offenses, 24 percent of the transferred offender reoffended, compared with 16 percent of the retained offenders.  For drug offenses, 11 percent of the transferred offenders reoffended, compared with 9 percent of the retained offenders.  For property offenses, 14 percent of the transferred offenders reoffended, compared with 10 percent of the retained offenders.

30. Public Safety  Utah Study??? Could show:  the types of cases being transferred or retained (proportionality or “worst of the worst”)  Outcomes in adult vs. juvenile court (recidivism, failure rates, etc)

31. What can Juvenile Court offer the minor?  What does the minor need?  What can the juvenile court offer to meet those needs?  Expert evaluation very helpful if not essential  Dr. Matthew Davies drmattdavies@msn.com  Dr. Rob Buttars rob.butters@socwk.utah.edu

32. What will the adult court offer to minor?  Probation?  AP&P does NOT want to supervise children  AP&P offers no specialized programming for children  AP&P treats children on probation like adults and they almost always FAIL  Prison? – research what happens to children in prison  USP does NOT want to house children  USP houses children in Uinta 1 (super max) until they can farm them out to a county jail BUT county jail may not be an option for violent offenses or gang cases