A Part of the Solution
WHY JUVENILE DELINQUENCY CASES ARE SOME OF THE MOST REWARDING CASES TO HANDLE
By Alexandra M. Giuliani
If you want to see someone change the course of their life, juvenile law is where to focus. Not only are you helping juveniles and their families through the court system, but you are also getting to watch a life get back on track.
In addition to providing guidance on navigating the juvenile justice system, this article will explain why it’s important to have good professionals who can provide sound advice on treatment plans and goals to ensure the juvenile is on their way to recovery and transformation.
HOW A JUVENILE DELINQUENCY CASE STARTS
A juvenile delinquency case starts with a filing of a petition. There are several procedural options that a court can choose when handling a juvenile delinquency case: The court can deny authorization of the petition; refer the matter to an agency providing available services pursuant to the Juvenile Diversion Act; notify the juvenile that they have to appear in court through an informal inquiry; proceed to a consent calendar; or authorize the filing of the petition and proceed on the formal calendar.
If a petition is not authorized, one way a lawyer can keep a crime from becoming an adjudication is by placing the juvenile on diversion. Having a chance to keep the juvenile’s record clean is the most important goal. If the case proceeds under diversion, the juvenile may be required to comply with terms of the diversion agreement. This is an agreement through a public or private organization that will assist the juvenile in resolving the problem that initiated the investigation, and it is not done through the court system. If the juvenile successfully completes the terms of the agreement, the case is never adjudicated. But if the juvenile fails to comply with the terms of the agreement, the court may authorize the petition formally charging the juvenile with the offense, and the case will proceed through the court. Obviously, diversion is the best-case scenario for the juvenile. Also, it gives the juvenile a taste of what it’s like to be on probation and ultimately forces them to understand that it’s up to them to successfully follow the terms and conditions. Diversion is not an option for a juvenile client who’s been charged with an assaultive offense under MCL 722.822(a) and MCL 722.823(3).
If the court determines that formal jurisdiction should not be acquired over a juvenile, the court may proceed in an informal manner commonly referred to as a consent calendar. The consent calendar must be agreed upon by the prosecutor, defense attorney, and the juvenile’s parent(s), guardian, or legal custodian. If the consent calendar is agreed upon by all parties, there is no formal jurisdiction over the juvenile, and the case will proceed through an informal process. The juvenile will have to abide by terms and conditions set by the court, and, if they are successful, the court will not enter an order of disposition. However, if the juvenile fails to comply with the court’s orders, the case can be transferred back to the formal calendar.
MCL 712A.2f(5) requires that consent calendar case records be maintained in a non-public manner. Access to consent calendar case records shall be provided to the juvenile, the juvenile’s parents, guardian, or legal custodian, the guardian ad litem, counsel for juvenile and, if related to an investigation of neglect and abuse, the Department of Health and Human Services, law enforcement personnel, prosecutor and other courts. However, consent calendar case records shall not be disclosed to federal agencies or military recruiters.
If the juvenile successfully completes the consent calendar case plan, the court must report the successful completion to the Michigan State Police (MSP) and to the juvenile, and the MSP must maintain a nonpublic record of the case. A nonpublic record means the record shall only be open to the courts of this state, another state, or the United States, the Department of Corrections, law enforcement, and prosecutors only for use in the performance of their duties.¹
AUTHORIZE FILING OF PETITION AND PROCEED ON THE FORMAL CALENDAR
If the case is placed on the formal calendar, the court will conduct formal adjudicative hearings. If the juvenile is found responsible for committing the offense, a dispositional hearing will follow. The judge or referee can order out-of-home placement, such as a private institution or agency or a public institution (e.g., a detention facility), or they can order that the juvenile be kept in the home and placed on a period of probation. If probation is ordered, the juvenile will have to comply with the terms and conditions until the successful discharge of probation.
REFEREE OR JUDGE
A juvenile delinquency case can be heard in front of a referee or a judge, and MCR 3.913(A)(1) governs the assignment of a referee in a juvenile case. A referee is there to help with the judge’s docket; they can hear a juvenile delinquency case that proceeds through formal adjudication, but the judge assigned to the case has to sign all orders. For more serious cases, a prosecutor or defense attorney can make a judge demand, which means the case proceeds in front of the judge instead of the referee.
Substance abuse is another important factor that must be taken into consideration for juvenile delinquency cases. Youth, just as much as adults, struggle with substances, which are oftentimes the basis of the crime charged. Getting the juvenile into a substance abuse program early on will ensure that the juvenile stays on the right track during the pendency of the case. Also, it shows that the juvenile is being proactive and taking the matter seriously. There are many great adolescent programs available, and once the juvenile goes through a comprehensive substance abuse evaluation, the therapist will determine the level of care the juvenile needs. There are residential inpatient programs where the juvenile can receive substance abuse treatment while staying at the facility. These inpatient facilities focus on detox (depending on the state of the individual when they are admitted) and working through the substance abuse program, as well as creating a healthy body and mind. They also offer support groups and effective ways of dealing with stressors and triggers.
There are also intensive outpatient programs (IOP) that generally meet about two to three times per week for about six weeks. These programs help juveniles and their families recognize and navigate the challenges of addiction. The juvenile will develop recovery skills and commit to a relapse prevention plan suited to their individual needs. After the juvenile completes the IOP, the therapist may recommend aftercare programs to continue to work on healthy communication and problemsolving strategies. Above all, treatment courts should be used as much as possible. Oakland County has a sobriety court program for adults and juveniles. If you have a nonviolent juvenile who has substance abuse issues, and the juvenile has been charged with a drug- or alcohol-related offense, the case could be transferred to sobriety court. The juvenile will be screened to determine eligibility, and if the juvenile qualifies for sobriety court, the juvenile will be transferred to a sobriety court judge or referee for the duration of their case.
Sobriety court for juveniles functions much like the adult sobriety court. It is an intensive probation that provides specialized services and also provides encouragement through self-discipline and performance. The main objective for sobriety court is to reduce recidivism for substance-related offenses.
The program is about nine to 14 months, depending on the juvenile’s needs, and consists of four phases. For an individual to advance through the phases, the juvenile must show that they have demonstrated a strong commitment to recovery. The first phase is the “acute stabilization phase” and is about eight to 10 weeks long. The juvenile will develop a plan for treatment, school and set up community resources. The goal of this phase is to get the juvenile in compliance with their treatment goals. The second phase is the “clinical stabilization phase,” which is very similar to the first phase, but it becomes less restrictive. The juveniles will continue engaging in treatment and there are added parent education classes. The juveniles must obtain a sponsor or peer mentor as an additional community resource. The third phase is less restrictive, and this is labeled the “stabilization period.” If the juvenile continues to demonstrate that they are continuing with treatment, they will receive added privileges such as extended curfew and driving privileges. Finally, the fourth phase is the “maintenance/graduation phase.” In this phase, the juvenile will have shown that they can be a stable member of the community. Once the participant makes it through the phases and successfully completes the program, the juvenile graduates sobriety court with the education and support needed to maintain a healthy lifestyle.
I recently heard some great insight from one of my clients who was admitted into juvenile sobriety court and has been actively participating in the program for about six months. He told me he believes that the sobriety court program has helped him with the structure he needs to keep him in line to ensure he stays on the road to recovery. He added that although the program is very demanding, he would strongly recommend it to anyone in his position.
MENTAL HEALTH ISSUES
Mental health issues are common with criminal behavior or juvenile delinquency, and they are something we need to address more often. A mental health diagnosis can be vital in explaining why a juvenile might be behaving a certain way, so it’s important to explore this in detail when first meeting with a client. Here are a few questions to ask: Has the juvenile been evaluated by a psychiatrist? Does the juvenile have a diagnosis? How is this relevant to the juvenile’s conduct?
Further, defense attorneys should become familiar with the Diagnostic and Statistical Manual of Mental Disorders (DSM). The DSM is a classification manual for mental health professionals with itemized criteria for diagnosing disorders. Deciphering between a diagnosis and immature thinking, identity issues and moral reasoning is important because it provides a backdrop for the juvenile’s behavior, allowing the judge to gain a more holistic view of the juvenile’s circumstances.
Defense attorneys can further enhance their advocacy when they collaborate with professionals who have personally diagnosed the juvenile, which is crucial because the attorney must act as a teacher and advocate, explaining to the judge what services are necessary for the juvenile’s treatment and rehabilitation. Having a letter from the therapist or doctor regarding treatment plans and goals will assist the judge in making the appropriate decision on the terms of probation at disposition. Some examples of mental health issues that are prevalent in society today, especially among youth, are attention-deficit/ hyperactivity disorder (ADHD), autism spectrum disorder, anxiety and depression. Early identification of a mental health issue and effective intervention are key to treating the disorder. If left untreated, the condition will get worse. Often, there is a “co-occurrence,” which means that the juvenile offender will have substance abuse issues coupled with a mental illness. Treating the underlying issue of substance abuse with inpatient (residential) treatment or intensive outpatient program, while seeking treatment for the mental illness, is key to a lower recidivism rate.
JUVENILES ON THE AUTISM SPECTRUM
Autism spectrum disorder (ASD) is demonstrated by markedly impaired development in social interaction and communication across multiple contexts, and a restricted repertoire of interests, behavior or activities. Being able to understand the juvenile and having the patience to handle them with care is crucial in your practice. ASD impacts a person’s responses to other people and therefore has an impact before, during and after a charged offense. ASD can be significant in terms of a client’s actions during an alleged offense, their competence to proceed, their ability to waive rights and their disposition. Therefore, to effectively navigate the juvenile justice system, the attorney should educate the judge about the disorder to help explain why the juvenile committed the offense.
An important resource to share with the juvenile’s family is the National Alliance on Mental Illness (NAMI). NAMI provides resources to help individuals handle the diagnosis of mental illness, including meetings and support groups that can give families the knowledge and education they need to help build better lives for their loved ones who are affected by mental illness. Often, parents and family members are unsure about what to do next. They come into the office with their child and are stressed and confused. Not only are the parents caring for a child with a mental illness, but they are trying to “keep it together” for the entire family. Providing the family with resources not only benefits the juvenile, but all family members as well.
While there is still an element of punishment and deterrence, the end goal for juvenile delinquency cases is to rehabilitate the juvenile. So, the courts try to focus on rehabilitation. If the judge can be convinced that the behavior will not happen again, the juvenile wins. Therefore, the more committed the juvenile is to the process without the court ordering it, the better the chance that the judge will follow your recommendations.
If the juvenile has a severe mental illness, such as being on the autism spectrum, you may want to ask the judge for a competency evaluation to determine whether the juvenile is competent to proceed. A juvenile 10 years or older is presumed competent to proceed unless the issue of competency is raised by a party.²
Once the issue of competency is raised, the court must put the case on hold while the evaluation is completed and a determination is made. The juvenile will undergo an evaluation by a qualified juvenile forensic mental health examiner. It is important for the defense attorney to gather as much relevant documentation as possible to aid the examiner in making a determination. For example, I represented a 14-year-old client who was documented on paper as functioning at a 5-year-old level. The juvenile was diagnosed on the autism spectrum and had a severe mental illness. I worked with the juvenile’s family to get all the years of documentation together to present it to the evaluator. The evaluations typically take around three hours, but in this case, it took the evaluator 30 minutes to determine the juvenile was incompetent to proceed.
The examiner must provide the court with an opinion about the juvenile’s competency to proceed. If the examiner finds that the juvenile is incompetent, the examiner must comment on the psychiatric or psychological disorder, the prognosis and any services required to restore the juvenile to competency. If the juvenile comes back as incompetent with no reasonable means of becoming competent in the foreseeable future, the court may order a dismissal of the charges (depending on the charges). The court can also order that the juvenile be provided services to see if they can become competent.
AUTOMATIC WAIVER CASES
When a juvenile who is 14, 15, or 16 years old commits a specific offense, the prosecutor may elect to initiate automatic waiver proceedings by filing a complaint and warrant in the District Court rather than filing a petition in the Family Division of the Circuit Court. These cases are handled like felony cases for an adult offender. If the juvenile is convicted of an enumerated specified offense, the juvenile must be sentenced in the same manner as an adult. If the juvenile is convicted of an offense that is not enumerated as a crime requiring imposition of adult sentence, the court must hold a juvenile sentencing hearing to determine whether to impose an adult sentence or to place the juvenile on probation and commit them to state wardship.
There is a new movement toward realizing that juveniles are not fully matured and should be given the opportunity to obtain release. The United States Supreme Court ruled that a juvenile who was under the age of 18 at the time of the commission of an offense cannot be sentenced to mandatory life imprisonment without parole.³
Subsequently, the Supreme Court ruled that the decision in Miller v. Alabama shall be applied retroactively, making numerous inmates all over the country eligible for resentencing and the possibility of eventual freedom.4
Certain homicide and non-homicide crimes are generally punishable under Michigan law by mandatory life imprisonment without the possibility of parole. Prior to the landmark ruling in the Miller decision, a juvenile who was sentenced as an adult for a conviction under these statutes was subjected to this mandatory penalty. In the series of these Supreme Court cases, the Court provided there needs to be some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.
PREPARING YOUR CLIENT FOR COURT
The skill of properly preparing and advising the client through the process is just as valuable as knowing the law. That is why we are often called attorneys and counselors at law. In most cases (hopefully), your juvenile client will have little experience with the juvenile justice system. It is therefore crucial that your juvenile client understand how to dress, respond and behave in court. This guidance is also beneficial to the parents, who may also have little or no familiarity with the justice system. Reassuring your juvenile client and the family that you will be there to answer any questions they have will create a trusted relationship that will allow you to pursue the juvenile’s best interests.
THE EFFECT JUVENILE ADJUDICATIONS HAVE ON COLLEGE APPLICATIONS
Taking it a step further, a juvenile adjudication can have a detrimental effect on a young person’s college admission. Colleges want to ensure campus safety, so a college can reject a student’s application because that particular individual may pose a risk to other students.
Not only are assaultive crimes a sensitive issue for universities, but alcohol and drug-related offenses are as well. When applying for college, juveniles should tell the truth. Most likely, your client is not the first person to disclose a juvenile record or behavior, and failure to be upfront about that information could lead to denial or, even worse, suspension.
Not only will a criminal record prohibit a person from attending college, but a criminal record also has an effect on financial aid and student loans. Even if the college applicant is accepted into college with a criminal record, the applicant may be denied financial aid due to his or her criminal record. Just because an individual turns 18 doesn’t mean the juvenile adjudication disappears. They will need to file an expungement in order to make it nonpublic.
CONCLUSION: REHABILITATION IS THE GOAL
The philosophy expressed in the Juvenile Code is that the minor should receive care, guidance and control - preferably in the minor’s own home and in a way that is conducive to the minor’s welfare and the best interest of the public. The goal in juvenile delinquency cases is to rehabilitate. The most important question is: Why did the juvenile commit the crime? Explore the reason and try to understand why so that you can effectively navigate the case and help the juvenile get back on track.