Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 1
By Robert E. Shepherd, Jr.
Task Force Report for Practitioners, Policymakers
In 1997, the ABA Criminal Justice Section Standards and Juvenile Justice committees jointly authorized the creation of a task force to address the overall implications of the increasing number of juveniles being transferred to the adult criminal justice system for trial and incarceration. The task force, chaired by Chief Judge Johanna Fitzpatrick of the Virginia Court of Appeals, began meeting in 1998, and has recently completed its work with the publication of a white paper entitled Youth in the Criminal Justice System: Guidelines for Policymakers and Practitioners. The group consisted of representatives of all sectors of the criminal justice community and its work was made possible by grants from several major foundations.
Since 1991 almost every state has widened the scope of youths under 18 who, after being charged with a crime, are processed by adult criminal courts rather than by juvenile courts. It is estimated that at least 200,000 American youths under the age of 18 are tried as adults each year, and by 1997 the number of young people in adult prisons had reached 7,400-double the number in 1985. (Howard N. Snyder & Melissa Sickmund, Juvenile Offenders and Victims: 1999 National Report 106 (1999); Kevin J. Strom, Bureau of Justice Statistics Special Report: Profile of State Prisoners Under Age 18, 1985-97 4 (U.S. Department of Justice, February 2000).) This growing population of youthful defendants and prisoners presents unique challenges to the entire criminal justice system. Lawyers, judges, probation officers, and corrections officials are encountering new problems and looking for guidance in how to deal with them. The purpose of the task force's white paper is to provide such guidance to those involved with youths in the criminal justice system.
The task force intentionally did not revisit the ABA position on the transfer of juveniles to adult court for trial, but focused instead on what should occur once a youth is involved in the adult system. The ABA transfer position is well articulated in the IJA-ABA Juvenile Justice Standards Relating to Transfer Between Courts, where Standard 1.1 makes clear that only persons 15 years of age or older should be eligible for transfer to adult court, and then only after an extensive hearing before a juvenile court judge.
This column summarizes the general recommendations made in the white paper on the pretrial and trial stages of the criminal justice process. The next column will focus on the recommendations for the corrections stage of that process.
The task force spent much of its early deliberations gathering information and hearing from experts on child and youth development before deciding on seven general principles to inform its decision making about the practices that should be followed in the various stages of the criminal justice process. These principles are as follows:
o Youths are developmentally different from adults, and these developmental differences need to be taken into account at all stages and in all aspects of the adult criminal justice system.
o Pretrial release or detention decisions regarding youths awaiting trial in adult criminal court should reflect their special characteristics.
o If detained or incarcerated, youths in the adult criminal justice system should be housed in institutions or facilities separate from adult facilities until at least their eighteenth birthday.
o Youths detained or incarcerated in the adult criminal justice system should be provided programs that address their educational, treatment, health, mental health, and vocational needs.
o The right to counsel in the adult criminal justice system should not be waived by a youth without consultation with a lawyer and without a full inquiry into the youth's comprehension of the right and capacity to make the choice intelligently, voluntarily, and understandingly. If the right to counsel is voluntarily waived, standby counsel should always be appointed.
o Judges in the adult criminal justice system should consider the individual characteristics of the youth during sentencing.
o The collateral consequences normally attendant to the adult criminal justice process should not necessarily apply to all youths arrested for crimes committed before the age of 18.
These overarching principles governed those decisions made by the task force about policy throughout the remainder of the deliberative process.
The task force determined that youths should receive, at a very minimum, the same safeguards available to adults during any police investigation. Statements made during the course of custodial interrogation in the absence of counsel and the youth's parent or parents should be carefully scrutinized, and such interrogation of a youth who has not reached his or her sixteenth birthday should not take place outside the presence of counsel. The task force also decided that the ABA Criminal Justice Standards on Pretrial Release should apply generally as minimal standards for the pretrial detention and release of youths, considered together with the IJA-ABA Juvenile Justice Standards Relating to Interim Status. The general policy favoring release of an individual taken into custody prior to trial should apply with even greater force to youths.
As with adults, youths should be released under the least restrictive conditions consistent with a jurisdiction's policies on pretrial release. When conditions for release are imposed, they should reflect the presumption that youths ordinarily should be released to their parents. In addition, the use of curfews, requirements for regular school attendance, restrictions on the use of driver's licenses, and other youth-specific conditions should be used as least restrictive conditions. Bail should be used only when no other conditions will ensure appearance since youths rarely have income or assets.
Pretrial services agencies should assist and supervise youths released prior to trial through staff specially designated and trained to handle them and ensure their compliance with the conditions of release. The agency should also be equipped to assist youths to secure educational and residential services, if necessary, in addition to aiding in accessing social, legal, medical, and mental health services. An inquiry by the pretrial services agency into the facts relevant to pretrial release should be held prior to the youth's first appearance before a judicial officer, and that inquiry should include, but not be limited to, those factors peculiarly relevant to youths.
When youths are arrested and not released, they should appear promptly before a judicial officer. This appearance should not be delayed for police investigatory procedures. The requirement for a prompt appearance before a judicial officer should take into consideration the possible unavailability of a parent or custodian, but such unavailability should not unduly delay the appearance. At that appearance, the youth should be advised, in simple, age-appropriate language of the nature and possible penalty for the charge, of the privilege against self-incrimination, of the right to counsel, and the right to a trial by a judge and, where applicable, a jury. The youth should also be advised that parents may be present for the appearance, and the parents should be there, if practicable. The advice given to the youth at the appearance should also be given to the parents, if practicable.
If the decision is made that a youth should be detained, there should be a procedure for an expeditious review of that initial decision based on new or additional relevant information. The use of pretrial incarceration for preventive detention reasons should be used sparingly, and in no event should it be more of a consideration than for adults.
Youths should be held in separate facilities from adults during any pretrial detention. Young people placed in a jail or other secure facility are more vulnerable to psychological and physical harm than adults, and they are at greater risk for suicide. In any jurisdiction where separate housing does not presently exist, a well-thought-out classification system is critical to the effective segregation of youths from adults, and of violent or threatening youths from other youths they may victimize. Youths in such a facility should not be mixed with adults in any common areas, and there should be sight and sound separation. Upon initial detention, whether in a juvenile or adult facility, youths should be evaluated for a risk of suicide and the need for a mental health assessment. If it is determined that a mental health assessment is needed, it should take place within 24 hours.
A youth's speedy trial rights should include a specific timetable tailored to meet the special characteristics of juveniles. The calendaring process should take into account the youth's sense of time while protecting the ability to prepare adequately for a defense at trial. ( See Anne Rankin Mahoney, Time and Process in Juvenile Court, 10 Just. System J. 37, 39 (1985).) The statutory time for trial should commence running, without demand by the youth, from the time of arrest, from the juvenile court's decision to transfer the case to the adult court, or from the filing of charges for trial in the criminal court if the charge is initiated in the adult system, whichever occurs first.
For any youth 14 or younger, and for any youth over the age of 14 whose competency is put in issue, the court should order an evaluation of the youth's competency to stand trial or waive any rights. The evaluation should be conducted by a psychiatrist or clinical psychologist who is specifically qualified by training and experience in the evaluation of children and adolescents. This evaluation should assess the capacity of the youth 1) to understand the proceedings, 2) to assist defense counsel, and 3) to make a meaningful decision about the waiver of substantial rights.
Upon finding that a youth is incompetent to stand trial as an adult, the court should determine whether there is a reasonable likelihood that competency can be restored. If such a likelihood exists, the court should order restorative services in either a nonsecure community setting or in a secure facility, if warranted. Because of the critical nature of a decision by the court on the issue of the competency of a child or youth to stand trial, an interlocutory appeal should be provided on an expedited basis after such a decision.
A youth should not be permitted to waive the right to counsel without consultation with a lawyer, and only after a full inquiry by a court into the youth's comprehension of that right and his or her capacity to make the choice intelligently and understandingly. Any waiver of counsel must be in writing and made of record. If the right to counsel is waived, standby counsel should always be appointed. The common-law infancy defense should be available to youths in the criminal court who are below the age of 14 to allow the issue of criminal responsibility to be addressed by the court. ( See Robert E. Shepherd, Jr., Juvenile Justice: Rebirth of the Infancy Defense, 12 (No. 4) Crim. Just. 45 (Summer 1997).)
Counsel and the court should be permitted to address age considerations during the voir dire of prospective jurors for the trial of youths. Where practicable, specialized courts or judges should handle youths in the criminal justice system, and judges sitting in such cases should be specially trained to deal with issues involving youths. However, where such courts or judges are not available, judges handling juvenile cases should receive specialized training about the distinctive characteristics of youths and the appropriate way to handle them in the adult system.
Prosecutors, defense attorneys, and probation officers who handle cases of youths in the criminal courts also should receive specialized training in developmental psychology and the special characteristics of young people. Prosecutors' offices should develop written protocols and procedures for the handling of youths in the criminal system to encourage consistency in dealing with young offenders. Public defender offices should, whenever practicable, have separate units or attorneys who specialize in the handling of such cases, and there should also be staff to assist in collecting and developing social and psychological information helpful to the attorneys. Effective multidisciplinary training programs, curricula, and instructional materials should be developed to assist in the training of judges, prosecutors, defense counsel, probation officers, pretrial release personnel, correctional officers, and others, and they should be supplemented by regular in-service training to keep individuals informed about new research and developments.
Youths should have the same right and opportunity to plead guilty or nolo contendere as adult defendants, although such a decision should be subject to an individualized inquiry into whether the exercise of this right is voluntary, knowing, and intelligent. The judge should separately advise the youths in open court of the conduct with which they are charged, the rights they are relinquishing, the possible sentence, and other consequences of such a plea, including collateral consequences. As part of the guilty plea colloquy, the judge should determine that the plea was voluntarily, intelligently, and knowingly entered, and that the youth was adequately represented by counsel.
When young children are involved as defendants in a criminal court, the judge should determine whether any special accommodations are needed. Such accommodations may include the setup of the courtroom, the accessibility of parents and social workers to the child defendant, the scheduling of the court day to match the shorter attention spans of children, increased frequency of recesses, and permission for youthful participants to spend time with their parents and social workers outside the courtroom. Generally, the press should have the same access to trials involving youths in the criminal justice system as to the trials of adults. However, on a case-by-case basis, access to the pretrial and sentencing phases may be limited when there is an individually determined compelling interest to limit access to certain reports and to portions of hearings where social and psychological evidence distinctive to juveniles is being presented.
Information about youths awaiting sentencing, such as the youth's school and juvenile court records, psychological evaluations or other assessments, should be available to the persons conducting a presentence investigation and preparing a presentence or similar report. Collateral consequences that normally apply to adults should be imposed on youths only on a case-by-case basis.
The white paper consists of 92 pages of recommendations and appendices, including an extensive bibliography, a discussion of relevant youth development issues, and statutory references. For a copy, contact Susan Hillenbrand at (202) 662-1503, or e-mail firstname.lastname@example.org. It is also available through the Section website at www.abanet/crimjust/home.html.
Robert E. Shepherd, Jr. , is a professor of law at the University of Richmond School of Law in Virginia. He is also a contributing editor to Criminal Justice magazine and former chair of the Section's Juvenile Justice Committee. Prof. Shepherd served as reporter to the task force, but the task force has not approved this summary of the white paper's recommendations and interested readers should consult the white paper itself for the full language.