Two changes in the law have led to a new phenomenon—the need for youth under the age of 18 to satisfy conditions of pretrial release while being confined in a juvenile detention facility. First, the Juvenile Justice Reinvestment Act (JJRA) raised the age of juvenile court jurisdiction for offenses committed at ages 16 and 17 on or after December 1, 2019. The JJRA includes a broad mandatory transfer provision, requiring that many felony matters shift from juvenile to superior court jurisdiction. G.S. 7B-2200.5(a). When that happens, the rules of criminal procedure (including those governing pretrial release) apply rather than the rules for juvenile cases. Second, Part II of Session Law 2020-83 required that the few minors who continue to be processed as adults in the criminal system from the outset of their cases be held in juvenile detention instead of adult jails. The release of minors subject to criminal rather than juvenile jurisdiction is governed by the usual criminal process for setting and satisfying conditions for pretrial release. Those conditions sometimes require posting a bond. But juvenile detention facilities are not equipped to process bonds. So how does this work? This post will review the circumstances in which a youth confined in juvenile detention may need to post bond, the impediments to doing so, and potential ways to address those problems.
Jacquelyn Greene
Race and Ethnicity in Juvenile Justice: North Carolina’s Numbers
With the work of the Governor’s Task Force for Racial Equity in Criminal Justice under way, it is timely to consider the issue of racial equity in the juvenile justice system. Issues of racial and ethnic disproportionality and disparity in juvenile justice have been discussed and studied in juvenile justice systems across the country for decades, as federal juvenile justice funding for states has long been tied to their study. See the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention’s Racial and Ethnic Disparities page for more information on the federal requirement.
North Carolina’s most recent study, Disproportionate Minority Contact in North Carolina: An Assessment Study (hereinafter “Assessment Study”), funded by the Governor’s Crime Commission and authored by Stan Orchowsky, Ph.D. of Cambiare Consulting and Michael Leiber, Ph.D., and Chae Jaynes, Ph.D., of the University of South Florida, was released in June of 2019. The findings reveal that, while there is significant local variation across counties in North Carolina, youth of color are represented throughout the juvenile justice system in far greater numbers than they are represented in the general population. These disparities are most profound at the very front door of the juvenile justice system and at the deepest end of the system in secure confinement. They are also most profound for Black youth.
No More Minors in Jails
Many people assumed that the implementation of raise the age on December 1, 2019 meant the end of confinement of anyone under 18 in a jail. That was not the case. Even under our new legal framework for juvenile jurisdiction, some youth under 18 still have cases that are handled in criminal court from the very beginning. There is currently no legal mechanism to house these youth in a juvenile detention facility instead of a jail. This changes on August 1, 2020, when Part II of Session law 2020-83 takes effect.
Expunction Relief for “Doughnut Hole” Youth
Much of the conversation at one of the first Juvenile Jurisdiction Advisory Committee meetings I attended centered on “doughnut hole” youth. The meeting participants were discussing the long pause between when raise the age legislation passed in June of 2017 until the time it would take effect in December of 2019. Many 16- and 17-year-old youth would continue to be convicted in criminal court for things that the legislature had already determined should be juvenile offenses for youth their age. Caught in between passage and implementation, these kids were in the “doughnut hole.” The legislature included a remedy for these youth, and many others, in the Second Chance Act (S562) that was ratified on June 17, 2020. Certain misdemeanor and Class H and I felony convictions for offenses committed before raise the age took effect and when the person was 16 or 17, can now be expunged. This new expunction opportunity is available to any person with an existing conviction from the age of 16 or 17 that would now fall under juvenile jurisdiction and not just the young people who were caught in the doughnut hole.
Juvenile Justice Pandemic Lessons
The Juvenile Jurisdiction Advisory Committee (JJAC) met on May 15th. The meeting began with a presentation from William Lassiter, Deputy Secretary for Juvenile Justice. While the goal of the presentation was to provide data on trends since implementation of raise the age and the resulting resource needs, the presentation included information and data about juvenile justice system trends during this unprecedented pandemic. The data left me wondering—can changes in juvenile justice system utilization during the pandemic teach us lessons for the functioning of the system outside of a pandemic?
Remote Delinquency Proceedings Not Otherwise Authorized in Statute
Last month I blogged about the one type of delinquency hearing for which remote proceedings are expressly authorized in statute—hearings on continued custody. This blog analyzes the legal and practical considerations for holding other types of delinquency proceedings through the use of audio and video technology. It will provide an overview of the authority to hold other delinquency proceedings remotely, discuss special considerations related to delinquency proceedings, and address what it all means for first appearances, probable cause hearings, transfer hearings, adjudication hearings, and dispositional hearings.
COVID-19 and Delinquency Continued Custody Hearings
As we all come to terms with the new reality of social distancing and a global pandemic, the potential health risks for youth and staff in secure custody settings is cause for concern. Staff in a New York City juvenile detention center have already tested positive for COVID-19. The North Carolina Department of Public Safety has suspended visitation and volunteer activities at all juvenile justice facilities. Currently legal visits for juveniles in secure custody are still allowed. These heightened concerns about secure confinement of youth raise questions about whether and how ongoing secure custody hearings can happen in our current environment and what alternatives exist to both preserve public safety and prevent use of the congregate juvenile detention setting as much as possible. This blog will discuss when hearings on continued secure custody must be held, even in light of the emergency directive; important considerations if those hearings are conducted remotely; and the range of release options available to the court.
All Related Charges Are Transferred When One Felony in a Delinquency Case Is Transferred
I continue to receive questions about transferring from juvenile to criminal superior court cases involving allegations that 16-and 17-year-olds have engaged in certain criminal conduct. Recently I’ve been asked about the transfer process for offenses committed at ages 16 and 17 in cases that involve a series of charges that include Class A – G felonies, Class H and I felonies, and misdemeanors. Because the Juvenile Code prescribes differing procedures for transferring various classes of felonies and there is no transfer process for misdemeanor offenses, confusion is understandable. The key to understanding how to handle these cases is this: Once one felony is transferred, all other related charges, regardless of offense class, are automatically brought under the jurisdiction of the superior court. Why?
The Indictment Process and Juvenile Transfer
The capacity to transfer a juvenile matter to superior court as a result of the return of an indictment was added to the Juvenile Code as part of the law changes that raised the age of juvenile court jurisdiction. S.L. 2017-57 §16D.4.(e) as amended by S.L. 2019-186 §8.a. Never before had the indictment process been connected to delinquency matters in juvenile court. This new structure requires a finding in the juvenile matter after an indictment has been returned. It raises a range of questions about procedure and confidentiality. This post will review when indictment can be used to trigger the transfer process, highlight what is known and not known about the procedure that must accompany the new use of indictment in delinquency matters, and address the question of confidentiality of an indictment that is used to form the basis of a judicial finding in juvenile court.
Raise the Age Tips and Resources for Law Enforcement
North Carolina sits four days away from implementation of the most significant change to juvenile court jurisdiction since the inception of the juvenile delinquency system 100 years ago. Beginning on December 1, 2019, most offenses alleged to have been committed by 16- and 17-year-olds will begin under juvenile jurisdiction. G.S. 7B-1501(7)b, G.S. 7B-1604(b). This change will shift the procedures that law enforcement must follow when processing 16- and 17-year-olds for these now juvenile offenses from criminal procedures to juvenile procedures. The good news, as Jeff Ledford, Chief of Police in Shelby, N.C., put it—if an officer knows how to take a 13-year-old into custody today, that officer knows how to take a 16- or 17-year-old into custody on December 1st. This blog provides three key tips for law enforcement to follow and links to a short training video and job aid developed specifically for law enforcement training on raise the age.