North Carolina's Juvenile Justice Reinvestment Act: Real Juvenile Reform or a $143 million Financial Boondoggle?

Largely attributed to the U.S. Supreme Court’s expansion of Eighth Amendment jurisprudence over the past twenty years, state legislatures have slowly dismantled three decades of laws designed to “get tough” on juvenile offenders. These laws in some cases limited the jurisdiction of the juvenile courts and mandated that courts try juveniles as adults for certain crimes if the juveniles were of a certain age, usually 16 or 17 years of age. This legislative session, the North Carolina General Assembly modified its juvenile transfer and jurisdiction statutes to expand juvenile court jurisdiction and to limit transfers of juveniles to Superior Court. Titled the Juvenile Justice Reinvestment Act and contained in the Legislature’s budget bill (S.L. 2017-57, SB 257), the measure modifies existing juvenile transfer and jurisdiction statutes to limit their impact on juveniles and reduce the likelihood that a juvenile will be tried for alleged crimes in the same way as an adult.

 

This genesis of the Juvenile Justice Reinvestment Act is to be found in the work of the United States Supreme Court, which has over the past several decades significantly eroded the impact of state legislation aimed at criminalizing juvenile offenders.  Most notably,  in Roper v. Simmons, 543 U.S. 551 (2005), the Court struck down state laws that provided for the imposition of capital punishment on juveniles as being contrary to the Eighth Amendment’s prohibition against cruel and unusual punishments.  Nearly a decade later in Graham v. Florida, 560 U.S. 48 (2010) and in Miller v. Alabama, 567 U.S. 460 (2012), the Court again expanded the reach of the Eighth Amendment to ban the imposition of a life sentence without the possibility of parole upon juveniles convicted of serious crimes. In all of these cases, the Supreme Court holdings differentiated between adult and youthful offenders, noting that juveniles were more likely to lack maturity; less likely to have a developed sense of responsibility; were more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; were more likely to have an unformed character; and were more likely to have an occasion for reform. Roper at 570; Graham at 74. As such, juveniles should not be punished in the same way as adults.

Half a decade later, the Juvenile Justice Reinvestment Act has finally been passed in North Carolina. Despite all the celebratory headlines in North Carolina newspapers, the reality at present is that nothing has changed with regard to juvenile jurisdiction or transfer to Superior Court, at least not yet.

At present, N.C. Gen. Stat 7B-2200 permits transfer of the case of a juvenile 13 years or older at the time of an alleged crime by the juvenile if the crime were a felony if committed by an adult and mandated the transfer if the felony were a Class A felony (Murder, Manslaughter). Likewise, N.C. Gen. Stat. 7B-1604(a) afforded juvenile court jurisdiction over a juvenile who has allegedly committed criminal acts only to the extent that the alleged acts were committed on or before the juvenile’s sixteenth birthday. Effective December 1, 2019, where the court obtains jurisdiction over a juvenile alleged to be delinquent who has not reached 18 years of age, the juvenile court will retain jurisdiction under N.C. Gen. Stat. 7B-1604 unless the juvenile has been alleged to have committed a felony. In that case, N.C. Gen. Stat. 7B-2200 permits transfer of the juvenile who is 13-16 to superior court and mandates transfer in the case that the alleged felony is a Class A felony. A new statute, N.C. Gen. Stat. 7B-2200.5 requires transfer of juveniles over the age of 16 to Superior Court if they are alleged to have committed an A-G felony, and permits transfer if the alleged felony is a Class H or I felony. Thus, the reformed statutes essentially maintains the integrity of the existing transfer and jurisdiction statutes while effectively raising the age of their application, making it a greater likelihood that a juvenile will be prosecuted in juvenile court than would have been the case without the legislation.

 

Many questions are now ripe for answering since North Carolina has abandoned its hard line approach to juveniles in favor of one that is, on its face, kinder and gentler. Is raising the age a good idea whose time has come or will it be a costly boondoggle that will increase case-loads in juvenile court and cost the taxpayers money? The verdict on this question is still out. A Legislative Fiscal Study attached to the original Juvenile Justice Investment Act House Bill projected that the impact of the legislation would be approximately $25,307,000 for Fiscal Year 2017-2018, and cost an additional $29,576,319, $44,376,721 and $44,478,339 for Fiscal Years 2019-2020, 2020-2021, and 2021-2022. Gen. Assembly of N.C. Session 2017 Leg. Fiscal Note.

So much for the cost side of things.

But an additional question needs to be asked: now that a juvenile won’t have to face adult charges (a significant deterrent to law enforcement since it will cloud a juvenile’s future) is there now more of an incentive for law enforcement to charge an act of delinquency that might in the end be expunged? And if so, what will these additional charges do to the numbers of juveniles who are expected to enter the juvenile system and how much more cost will it add to the $143 million price tag this legislation is already expected to cost?

Turning from costs, one need also ask about the impact of this legislation on the lives of juveniles. Will the expenditure of $143 million over five years lead to significant reform of juvenile behavior, reduce the incident of juvenile delinquency, and lead to better outcomes for those juveniles adjudicated delinquent? If one assumes that the sole cause of juvenile delinquency and subsequent recidivist behavior is lack of proper psychological treatment and youth services that aren’t delivered because juveniles have been prosecuted as adults, perhaps one could imagine that the legislation will lead to  some positive impact.  

However, the reality is and remains that juvenile offenders mainly become the way they are because of the sociology of their individualized households and extended social groups. Until the environment of home and hearth is better nourished, sustained and supported, until parents and caregivers take a more active and corrective role in instilling proper values, until expectations for a better life are instilled in juveniles who are at risk for offense, the result is likely to be more of the same.

In re A.P.: A Challenge to DSS Standing to File Juvenile Petitions Where Neither Parents or Child in County But Not in Conflict of Interest Cases

The North Carolina Court of Appeals recently reversed an adjudication in Mecklenburg County due to the fact that the Mecklenberg County Department of Social Services did not have standing to file a juvenile petition. In re A.P., __ N.C. App.__,__S.E.2d__(April 18, 2017). In reaching its holding, the Court of Appeals relied primarily on the fact that at the time Mecklenburg County filed its juvenile petition, the child in question neither resided in the county nor was the county of residence of the child’s parents. Id.

 

Given the significant importance the appeals court placed upon the ability of a county social services director’s ability to file a juvenile petitions, the question naturally arises as to what impact this will have when a county has a conflict of interest and where ultimate responsibility to file a petition may reside with a county that has neither the child’s parents in residence nor can claim that the child can be found in the county. The answer, as it turns out, is that the holding of In re A.P. does not apply to conflict of interest cases. But before one can get to this conclusion, a little background is in order.

 

The North Carolina Department of Health and Human Services recently revised its conflict of interest policy in an effort to bring it more in line with current ethical practice. Where a conflict arose under the old policy, for example, where a child welfare investigator in a county department of social services was related to a party who was the subject of a child welfare report, the initial screening, the investigation or assessment of the report, and any subsequent case management would be assigned to a sister county. See 10A NCAC 70A.0103

North Carolina Division of Social Services Family Services Manual. Volume I: Children’s Services Chapter VIII: Child Protective Services. 1410 Conflict of Interest. However, if the family risk situation later rose to the level where a juvenile petition needed to be filed, the petition would fall to the responsibility of the original county, regardless of the fact that a conflict of interest existed. Id. Under the new policy revised December 2016, the filing of any petition or seeking non-secure custody over a child in the original county remains with the county taking on the case due to a conflict of interest. Thus, once a case has been determined to be a conflict of interest for County A, the case is referred to County B which handles the matter to its conclusion.

Standing to file a juvenile petition normally falls to a director of a county where a child is found or where the child’s parents reside. N.C. Gen. Stat. 7B-101(10). Normally this is where In re A.P. would present difficulty for a county handling a conflict of interest case. However, it is vitally important to reference the statute governing venue. In as much as one consults this statute, one finds that standing is also conferred to a director handling a conflict of interest case, who has the ability to file the petition in either the original county where the conflict of interest arose or the county where the director’s agency is found. See N.C. Gen. Stat. 7B-400. Thus, North Carolina General Statute 7B-400 specifically provides both standing to the conflict of interest director of social services as well as venue in either the director’s home county or the county where the parents reside or where the child could be found.

No doubt, some out there will immediately argue that 7B-400 is a venue statute and therefore has nothing to do with standing or subject matter jurisdiction and that In re A.P. applies to all cases, whether there is a conflict of interest of otherwise. Unfortunately, this position is not consistent with the holding of the Court of Appeals in this decision which quotes extensively (but not completely) from 7B-400 to support its over-all position that Mecklenburg County DSS did not have standing to file its petition. To quote the Court of Appeals, "Article 4 of the North Carolina Juvenile Code sets for the requirements for venue and the proper parties of petitions." (emphasis added). If we can rely on the court's opinion regarding the function of Article 4 based on the excerpted section the court relied on in the opinion , then one can safely rely on the whole of Article 4 which defines the proper parties of petitions to include directors of counties handling conflicts of interest.

Admittedly, there is some incongruity between the definition of a county social services director found in North Carolina General Statute 7B-101(10), which does not provide for the contingency of handling a conflict of interest, and 7B-400, which expressly does do so. This incongruency will, hopefully, be addressed by subsequent legislative amendment. However, in the meantime, those counties handling conflict of interest case for a sister county need not fear an absence of standing or venue. The same is appropriately (if not perfectly) provided for by the General Assembly in the existing legislative framework of the Juvenile Code.

In re M.B Part II: Parent Rights and Responsibilities Lost when Third Party Custody or Guardianship Conferral is Permanent Plan?

One of the express goals of the North Carolina Juvenile Code is to seek to safely prevent the need for removal of children from their homes when issues of risk arise within those homes. Sometimes in is not always possible to adequately protect children in their own home due to inadequacies of the home, the social failings of the parents, or both. In such cases, third party caretakers are next enlisted by county departments of social services, at first relatives or persons with kinship, to provide these at-risk children with a safe and appropriate home. When even these avenues fail to provide a safe and appropriate home environment, the children are placed in foster care.

It is a sad but all too true fact that in the majority of cases that are filed in North Carolina Juvenile Court’s, once a child is removed from a home, there is a very small chance that the child will ever be successfully reunited in the home of the parents. Very often, the child will find permanence with relatives or others who have provided long term child placement.

The question arises: if a child is removed from a parents home, if the plan of care changes from reunification with a parent and the permanent plan is custody of guardianship with a relative or court-approved care-taker, what rights do the parents of the child still retain?

North Carolina General Statute 7B-906.1(e)(2)(2015)  seems to offer some guidance on this issue where it provides that:

(e) At any permanency planning hearing where the juvenile is not

placed with a parent, the court shall additionally consider the

following criteria and make written findings regarding those that

are relevant:

. . .

(2) Where the juvenile’s placement with a parent is unlikely

within six months, whether legal guardianship or custody with a

relative or some other suitable person should be established and,

if so, the rights and responsibilities that should remain with the

parents.

This statute was recently construed by the North Carolina Court of Appeals in In re M.B., __N.C.App.__,__S.E.2d__(May 15, 2017) in a case where guardianship had been awarded to a paternal great-grandmother  and the permanent plan was changed from reunification to guardianship. In that case, the court held that, notwithstanding  the language of North Carolina General Statute 7B-906.1(e), there was no statutory obligation on the trial court, apart from the issue of visitation, that required the trial court to specifically enumerate every possible right and responsibility that the parents would retain in light of the court’s award of guardianship. Id.   More surprising still was the additional holding of the court that “. . .. . when a child is placed in the custody or guardianship of another person, the parent’s rights and responsibilities, apart from visitation, are lost if the trial court’s order does not otherwise provide.” Id.

 

This latter interpretation of N.C. Gen. Stat. 7B-906.1(e) by the Court of Appeals is problematic for several reasons. First, the award of custody to a third party such as a county department of social services is available as one of several dispositional options available to the court following adjudication. See N.C. Gen. Stat. 7B-903. Guardianship, on the other hand, can be awarded at any stage of a juvenile proceeding. See N.C. Gen. Stat. 7B-600. Of course, prior to awarding custody or guardianship to a third party, the court must find both that the home of the parent is inadequate to the task of providing safely for the needs of the child, that the juvenile requires additional supervision beyond that provided by the parents and that the same is consistent with the best interests of the juvenile. N.C. Gen. Stat. 7B-600. Guardianship conferral also requires that the court find that the prospective guardian understands their responsibility and that the guardian is both physically and financially able to provide for the needs of the juvenile. N.C. Gen. Stat. 7B-600(c); In re M.B., __ N.C. App. __, 782 S.E.2d 785 (2016).

 

All that being said, it has never been the case that in the absence of a specific judicial determination that the parents would lose all their rights and responsibilities. For example, federal law requires parents to participate in and sign paperwork necessary to effectuate a child’s Individualized Education Plan (IEP) , even when a child is in the custody of a county department of social services and is placed in foster care. See 20 U.S.C.A.§1414(d). Moreover, the Juvenile Code provides a host of other examples where parental rights or responsibilities remain even where a third party such as with the department of social services has custody of a child. See N.C. Gen. Stat. 7B-904(a) (potential obligation for medical, surgical, psychiatric, or psychological treatment costs); N.C. Gen. Stat. 7B-904(d) (potential child support); N.C. Gen. Stat. 7B-1000 (right to seek modification of trial court order); N.C. Gen. Stat. 7B-1001 (right to appeal trial court order).

 

Outside of these considerations, it should be noted that in every case where a third party custody conferral or award of guardianship occurs, the trial court must retain jurisdiction over the case until the child reaches the age of 18. See N.C. Gen. Stat. 7B-201. As such, the parents, as parties to the juvenile action, retain a right to procedural due process and must be sent notice of any subsequent juvenile proceeding regarding the child. Thus, it seems unlikely that there is a legally sufficient basis for the Court of Appeals most recent holding in In re M.B.,that, absent a mandate by the trial court, a parent loses all substantive and procedural rights and responsibilities regarding their child outside of visitation.

 

Admittedly, the Court of Appeal’s holding seems to be confined to custody transfers or conferral of guardianship at or following the initial permanency planning hearing. Thus, the impact of the holding may be mitigated to some extent in that it may not be intended to apply to proceedings prior to the first permanency planning hearing. But while this may mitigate the problematic nature of the holding, it doesn’t make all the problems go away. Perhaps the most glaring problem that remains is the situation where guardianship has been conferred and at a later date the guardian either refuses to perform the duties required under N.C. General Statute 7B-600 to provide for the needs of the child-ward or is unable to do so. Under N.C. General Statute 7B-600, any party may seek a hearing in such circumstances to remove a guardian and make such other orders as are necessary from the protection of the juvenile. See N.C. Gen. Stat. 7B-600. In so doing, the trial court must undertake the analysis provided for by N.C. General Statute 7B-906.1, looking first at whether the child may be safely returned to the home of the parents. Under the most recent holding of In re M.B., the parent’s rights to such due process would be eliminated, absent its preservation by the trial court at the time the guardianship was awarded.

 

The better view (and better holding) would be one that affirms that parental rights remain inchoate in the circumstances where there has been an award of custody or guardianship to a third party. Under such a theory, the rights of the parents, like a junior lien on property subject to a superior lien, would remain in abeyance until such time as the superior custody or guardianship of the third party is eliminated or otherwise modified. Only when the custody of guardianship of a third party is dissolved or otherwise mitigated would the inchoate rights of the parents be able to be actualized. Such a view avoids the draconian consequences that result from the most recent holding of In re M.B.. Moreover, such a theory has greater resonance with both other areas of the Juvenile Code (i.e. N.C. Gen. Stat. 7B-201(b) (termination of court’s jurisdiction revives inchoate rights of parents as they existed prior to juvenile proceeding) other areas of the law such as property law and secured transactions where multiple claims of legal or equitable interest can be recognized and accommodated outside without the need to resort to an “all or nothing (or nearly all or nothing) proposition”.

 

Unfortunately, no judge dissented among the Court of Appeals panel that upheld the trial court’s decision in the most recent decision in re M.B., and thus absent the granting of a writ of certiorari by the North Carolina Supreme Court or the future revision or re-interpretation by the Court of Appeals itself,
the most recent holding in In re M.B. is sure to cause trouble for parents as well as trial judges who aren’t careful in specifically setting down the rights and responsibilities of parents where the court seeks conferral of child custody or guardianship upon third parties.

Temporary Placement Arrangements in Juvenile Cases can be Legally Secure Even Without Court Ordered Custody

 One of the express purposes of the North Carolina Juvenile Code is to “provide services for the protection of juveniles by means that respect both the rights to family autonomy and the juveniles’ needs for safety, continuity, and permanence.” N.C. Gen. Stat. 7B-100(4). Furthering this goal, social services agencies,  when confronting family situations where children are at risk, often make use of temporary safety providers. Such temporary safety providers may be relatives, people with kinship, or simply family friends. The North Carolina Division of Social Services Family Services Manual specifically approves of such temporary safety arrangements but is quick to point out that such arrangements are not “legally secure” and should not be considered “a change in residence.” NC Div. Soc. Svcs. Fam. Svcs. Man. Chapter V (2016). While in generally it is true that such arrangements are not legally secure and do not afford a child placed in such an arrangement with legal permanence, it is important to recognize that a temporary safety arrangement can be made into a legally sufficient arrangement such that further involvement by a county social services will be no longer warranted and no need will continue to exist to file a juvenile petition will be warranted.

How is this possible?

The answer depends upon the degree to which the temporary safety provider and the juvenile’s parents wish to make the juvenile’s placement arrangement permanent. On the far end of the safety continuum, a mere safety agreement and a placement in a temporary home is altogether insufficient to confer legal permanence. The placement provider will have neither the means to provide for the upkeep of the child nor the legal authority to act on behalf of the child for either routine needs (i.e. school enrollment) or those of a more emergency nature. On the other end of the continuum, a Chapter 50 action for child custody filed by the temporary placement provider more than adequately provides for the legal security of a child placed by parents and a county social services agency where insurmountable safety risks exist in the parent or parents’ home.

Admittedly, the middle ground between these two poles on the legal permanence continuum is less clear cut. As such, county social services agencies, parents, and parent’s attorneys should work on a solution that, considering the totality of the circumstances surrounding the child, provide for the juvenile’s safety while at the same time balances the need to provide for family autonomy. The first necessary ingredient in developing a robustly safe temporary placement arrangement is the conferral of the power of attorney by the parents upon the temporary placement provider. This POA should address not only the conferral of authority for making necessary medical decisions where the parents can’t be immediately consulted but also provides authority to allow the child to enroll in school, participate in extracurricular activities, and provide for such other normal childhood activities that the juvenile would enjoy if the juvenile remained back in the parent or parents’ home.

Second, the parents should provide, at least temporarily, a basis for temporary child support. Such support can provide for the child’s economic needs while at the same time assuring that the juvenile’s placement does not become an economic burden upon the temporary placement provider.

Third, the parents and the temporary placement provider should clearly articulate two plans to deal with the issues that led to the placement of the juvenile outside the home. The first should contemplate a diligent plan of exerted effort to follow the safety plan created by the county social services agency to reduce risk in the parent or parents’ home to the child. If the issues are substance abuse related, then adherence to substance abuse prevention treatment recommendations and random drug screens will be essential to making the first plan a reality. If the issue is intransigence or economic instability, then obtaining a safe, appropriate home and steady gainful employment will become the focus of critical efforts. The second plan should contemplate what should happen if, after a reasonable period of time, the first plan fails. A child cannot remain in limbo and county social services agencies cannot wait endlessly for a parent to get their affairs in order. The second plan, therefore, should set a firm date for when more permanent arrangements should be made by the parents to either accomplish objectives designed to reunify their child in their home or, in the alternative, provide for legal security for a juvenile placed out of the home. If the parents (1) have not previously sought to disrupt a placement; (2) have provided a POA to the placement providers; (3) are providing on-going child support; and (4) there exists with the temporary  placement all hallmarks of permanence (i.e. the child has been regularly attending a particular school, is bonded to the placement providers, has connections in the community, and/or expresses a strong desire to remain in the placement which is not contravened by the parents) then it should be legally possible to construe such a temporary placement arrangement as a permanent placement arrangement that is both socially and legally secure.

While certainly the N.C. Department of Health and Human Services would most likely not agree with the above-stated assessment of what might constitute legal permanence, the objections given almost always relate to the fragile nature of parent's power of attorney, which admittedly, may be revoked in an instant. While one can grant hypothetical and sometimes practical truth to such a claim, the real world apply demonstrates that POA's succeed overwhelmingly more than they fail. Powers of attorney are at the heart of almost every activity that people engage in on a daily basis. A POA allows the mechanic to fix a car, allows a teacher to take a child on a fieldtrip, and provides your cellphone provider to charge a credit card account. Certainly, individuals can revoke their consent, and sometimes they in fact do so. Nonetheless, life’s activities which rely on conferred agency go on for the most part unabated, thus allowing for the car to be repaired, the fieldtrip to be taken and the cellphone bill to be paid. The message for DHHS naysayers is clear: rather than categorically ruling out a power of attorney as a tool toward establishing legal permanence, grounds for acceptance of POA's exist if one takes a more constructive, evidence based approach. Thus, if a parent exhibits a proclivity toward revoking consent to act on behalf of a child shortly after granting the same, then as a matter of induction, any authority conveyed is shaky and is not legally a secure basis for establishing permanence for a child. If, on the other hand, a parent does not have a history of revoking consent, then it is fairly safe to say that a placement arrangement built upon a parental agreement backed up by a lack of interference with the placement could constitute the basis for assessing legal permanence in a temporary placement provided that the totality of the circumstance affecting a child’s placement additionally leads to an assessment that legal permanence exists.

North Carolina Juvenile Code: Practice and Procedure 2017 Edition Now Available

The newest edition of North Carolina Juvenile Code: Practice and Procedure is now available through Thomson-Reuters at the following link: http://legalsolutions.thomsonreuters.com/law-products/Practice-Materials/North-Carolina-Juvenile-Code-Practice-and-Procedure-2017-ed/p/104642950. First published in 2003, the 15th annual edition includes the following new and updated features:

• A new section on caretakers.

• A new section on diversion of a juvenile delinquent or undisciplined juvenile into the custcounty department of social services. 
• A new section on the unlawful transfer of custody of juveniles.

• A new section on character evidence.
   
• A new section on expunction of juvenile records or previous delinquency and undisciplineadjudications.

• Comprehensive updates on new legislation and case law affecting juvenile law in North Carolina.
   
• Updated forms.

As with past editions, this edition provides the same comprehensive, up to date treatment of juvenile law in North Carolina which continues to be unmatched in its coverage of the law regarding child welfare, juvenile delinquency and undisciplined actions, termination of parental rights actions, and emancipation. Accept no substitutes!

In re J.S.C.: Consent Adjudications Not Subject to Clear, Cogent and Convincing Standard

In an opinion that I am sure surprised many, the North Carolina Court of Appeals recently delineated in the case of

In re J.S.C. ,__N.C.App.__, __S.E.2d__ (COA16-1222 (2 May 2017))

the distinction between the quantum of proof required in a consent

adjudication as opposed to an adjudication by hearing.

The case originated in New Hanover County and involved a child who had suffered significant head trauma abuse and neglect. New Hanover County DSS filed a juvenile petition alleging that the minor child was abused and neglected. On 8 August 2016, both respondents appeared in court and tendered a “Consent Order on Adjudication” which was signed by all parties and their counsel and provided further that

the parties “have stipulated and agreed to the entry of this Order which

provides for the following facts, conclusions of law and order” adjudicating [the minor child] as neglected and abused."

Following Disposition, both the parents appealed, the father later withdrawing his appeal. The mother's surviving appeal referenced one particular error: at no time either in court or through a written order did the trial court establish that the consent's findings were arrived at by "clear, cogent and convincing evidence." In the context of adjudicatory hearings, failure to make such a determination has been fatal. See

In re Church, 136 N.C. App. 654, 525 S.E.2d 478 (2000); In re D.R.B., 182 N.C. App. 733, 739, 643 S.E.2d 77, 81 (2007). However, as the Court of Appeals has pointed out, a consent adjudication is not an adjudication by merely another name.

As the court pointed out in the text of its opinion, since the consent adjudication did not engage in ". . . an adjudicatory hearing, the court did not receive or weigh evidence, assess the credibility of witnesses, or otherwise engage in the process of fact-finding." Accordingly, ". . . [t]he court thus had no occasion to apply the “clear and convincing evidence” standard of proof or any other standard." N.C. Gen. Stat. § 7B-805 on its face applies only to adjudicatory hearings, not adjudicatory consent hearings. See N.C. Gen. Stat. § 7B-805. With that said, the appellate court declined  to extend  In re Church to find reversible error based on the failure of the consent adjudication order to state the evidentiary standard contained in N.C. Gen. Stat. § 7B-805.

North Carolina Juvenile Justice Reinvestment Act (HB 280): A Missed Opporunity For Substantive Reform of the Juvenile Justice System

North Carolina Supreme Court Chief Justice Mark Martin has recently announced  the Judicial Branch's support of the Juvenile Justice Reinvestment Act, HB280. The Bill seeks reform the North Carolina justice system's response to children and teenagers under the age of 18, most notably by prosecuting 16- and 17-year-olds non-violent offenders in juvenile court rather than in adult criminal court. According to statistics from the Bill's supporters , 96.7% of all 16-17 year old offenders charged with misdemeanors and non-violent felonies. With that in mind, Martin made the additional claim that if passed, HB280  will help "strengthen families and [will] likely to result in lower recidivism, less crime, and increased safety," as well as ". . . economic benefits for the state of North Carolina." Examining the text of the proposed legislation, it is immediately clear how the State of North Carolina will save money by diverting juvenile nonviolent offenders from the well-worn path that inevitably leads to prison. With fewer juveniles in this stream of dismal commerce, the numbers incarcerated will inevitably go down, translating to cost savings both in the short and long run. However, one is hard-pressed to find a basis for the other lofty claims made by Justice Martin. The Bill does nothing on its face to enhance or additionally fund existing programs designed to provide treatment to 16 and 17 year olds. Thus, the shop-worn dispositional remedies of community based punishment, wilderness camps, diversion to DSS custody and for the worst offenders, commitment to "youth development centers" remain the sole basis to "strengthen families" and "reduce recidivism". Anyone who works in the North Carolina Juvenile Justice System knows how challenging it is to make effective use of the existing dispositional alternatives provided by the Juvenile Code. Juvenile offenders who have reached 16 and 17 years of age in many cases have already been in the system for several years. These juveniles are, in many cases, jaded and un-amendable to or unwilling to benefit from therapeutic intervention. Moreover, these juveniles are also well aware that juvenile court imposes a relatively low opportunity cost upon their libertine and riotous behavior. Thus, the mere threat that at most a juvenile could be held in secure custody for 14 days, or be subject to house arrest, or get sent off to wilderness camp may hardly register as any form of deterrent. If legislators wish to achieve real and meaningful reform of the Juvenile Justice System, they must address two issues that are not at all mentioned in HB 280. First, the deterrence formula that is set forth in North Carolina General Statute 7B-2506 (Dispositional alternatives for delinquent juveniles) and 7B-2508 (Dispositional limits) needs reconsideration. The current Juvenile Code prevents a District Court Judge from imposing the full range of dispositional alternatives upon Level I offenders, the very offenders who most likely can be deterred from future acts of delinquency if they are hit hard with both consequences and therapeutic intervention at the earliest stage of their potential criminal career. Instead, North Carolina saves the more substantive dispositional alternatives--placement in a residential treatment facility, intensive probation, regimented training programs, and up to 14 days of juvenile detention--for Level II and Level III offenders. While this type of sentencing has the merit of being proportional, such a policy goal is hardly beneficial to society when low level dispositional sentencing leads only to acclimatizing the juvenile to the juvenile justice system and retards the effectiveness of any subsequent higher level punishment. Second, greater emphasis needs to be made to afford juvenile offenders increased access to community based mental health services. Too often inadequate funding streams cripple juvenile court counselor's ability to access residential placements and critical mental health treatment. As a result, even Level II and III juvenile offenders who could benefit from residential treatment or enhanced mental health services are not able to gain access because there aren't enough beds available at a residential treatment facility. Where access to a treatment facility is available, such a resource tends to be reserved for the worst offenders because financial resources are scarce. This very phenomena has led in years past to increased numbers of older juvenile offenders being diverted to DSS custody, the perception being that social services had greater resources available and could more adequately provide treatment. The problem with such an idea is that, even if it were once true that the county DSS had greater resources, those days are long gone with now record numbers of children in foster care and county social services budgets stretched to their limits. While no one denies that financial responsibility is a good thing in government, that fact remains that making public policy decisions can not be viewed exclusively through the lens of the accountant. As in business, sometimes you have to spend money if you are going to make money. If North Carolina is truly going to strengthen families and reduce recidivism among 16 and 17 year old juvenile delinquents, it needs to make a sizeable financial investment aimed at developing solutions that will deter delinquency, get at the root cause of the delinquency, and provide a basis for reform and rehabilitate the juvenile offender so that the likelihood of re-offense is diminished. House Bill 280, with its exclusive emphasis on saving money by narrowing the definition of who can go to prison, fails significantly in this regard.