Los Angeles Juvenile Defense Attorney

Archive for the ‘Transfer to Adult Court’ Category

NYT Editorial On Juvenile Justice Too Idealistic

Tuesday, January 17th, 2012

Sunday’s New York Times ran an editorial entitled, “Some Good News From California’s Justice System.” It praises Governor Brown’s plan to close state-run facilities operated by the Department of Juvenile Justice and transfer juveniles to county-based facilities.

The editorial does a decent job of laying out the terrible record that DJJ facilities have had. It also acknowledges that critics of the Governor’s plan are concerned that it will cause more juvenile cases to be filed needlessly in adult court.  The editorial tacitly acknowledges that this is a valid concern, but argues that this can be addressed by appropriate legislative action and monitoring.

The Legislature can prevent this by monitoring and penalizing counties that over-prosecute young people and by allowing for extended custody in local facilities of juveniles who commit more serious crimes.

Unfortunately, there are at least 125,000 reasons why the solutions proposed by the Times’ will likely fall short.  Simply put, once more juvenile cases are under the jurisdiction of the counties, there will be a strong financial incentive for counties to shift juvenile cases to the state court system.  A brief review of the recent legislative history in California shows why.

In June of 2011, the California legislature passed SB 92 which, in relevant part, said that if the state’s revenues fall short of projections for 2011, “tier 1 trigger cuts” would go into effect on January 1, 2012.  One of these trigger cuts was the shifting of the costs of DJJ commitments from the state to the counties.  Specifically, $125,000 is shifted to the county each year for every juvenile a county sends or had previously sent that is still in the custody of DJJ.  Approximately three months later, California’s collected revenues fell short of the legislative projections, and Governor Brown announced that the Tier 1 trigger cuts go into effect.

So what do the counties do when faced with the prospect of taking on the financial responsibility for handling juveniles that are currently on the books of the state?

Predictably, on December 7, the California State Association of Counties, the California District Attorneys’ Association, and the Chief Probation Officers of California wrote a letter to Governor Brown in which they explicitly indicated that shifting the financial burden will likely cause more juvenile cases to be filed in the adult system.

“. . . we write to express our gravest concerns regarding the trigger cut provision in SB 92 . . . that would require, beginning January 1, 2012, that counties pay $125,000 annually for every youthful offender committed to a department of Juvenile Justice (DJJ) facility, irrespective of commitment date.”

. . .

We see several potential consequences to the system that might follow.  First, by making a DJJ commitment prohibitively expensive, the state could likely see an increase in adult court proceedings for youthful offenders, reflecting the fact that a local option either may not exist or may not be viewed as inappropriate given the severity of the crime. . .“

It doesn’t take a rocket scientist to see that the counties had every incentive to avoid the $125,000 annual per-inmate cost.  The Governor’s January 2012 response strongly suggests that he didn’t think that the counties were bluffing.  He announced that collection of payments from county would be delayed.  As reported by the San Francisco Chronicle, the Governor is now proposing that the DJJ be scrapped entirely and, as of January 2012, that no new juveniles would be sent to DJJ.  Kids who are currently in DJJ facilities would serve out their sentences).  The Governor’s plan also calls on counties to determine how to house their most serious juvenile offenders, and the state will provide $10 million to each county to help set up their new systems.  This is just a plan and there is no guarantee that it will ever become reality.

The fact that the New York Times editorial has its shortcomings doesn’t mean that I am in favor of the existing system.  The DJJ is far too often a disaster, and while some improvements have been made over the past few years, it is still dreadful. It’s only useful in cases where a juvenile is likely to lose at the fitness hearing.  In that circumstance, it may make sense to reach a plea agreement with the prosecutors because the DJJ is still better for juveniles than adult court, and the corresponding potential state prison sentences.

In theory, this could be an opportunity for us to reinvent the juvenile justice system in California so that it provides real community-level services and supervision that is tailored to local populations.  There are several reasons why the shift to a more county-based system may not have the results projected by the editorial’s authors.  First, counties are already dealing with an influx of adult state prisoners from the criminal justice realignment plan (non “strike” offenders now do their time in county jails).  It is anticipated that criminal justice resources at the county level are going to be stretched thin and county jails will be overcrowded.

Second, it is hard to see how the juvenile system won’t continue to be an afterthought in the criminal justice system.  The $10 million payout from the state is nice and all, but that’ll be gone quickly and then what?  DA’s will resort to direct filing in adult court rather than leaving the decision to the juvenile court, why?  Because of under realignment, the types of cases that get direct filed are generally not eligible for county jail sentences. This means that most courts would send a kid off to state prison – this keeps him off the county books in either a juvenile court or adult court scenario.

While juvenile cases in adult court may be politically unpopular in some communities (and I think unethical and immoral), nobody has ever lost an election being “tough on crime.”  Moreover, voters and would rather pay for playgrounds and after school programs rather than find a rehabilitation solution for a 16 year-old convicted armed robber.  Given that the more violent juvenile cases tend to be in the DJJ system, I would be surprised if, beyond the financial incentives, counties showed much appetite for taking on additional serious cases.  It is heartening that the New York Times editorial board has chosen to focus on the state of the Juvenile criminal justice system in California.  I do welcome the attention that such an editorial brings. But no amount of “monitoring” is going cause counties to file fewer juvenile cases in state court.  This is a problem that will require amending the underlying statutory framework.  Given the current political and budgetary environment in Sacramento, that unfortunately is a long shot.

Will My Child Be In Juvenile Court or Adult Court?

Friday, January 8th, 2010

In certain situations, a case from juvenile court will be transferred to adult court.  Depending on the alleged offense, this case may either be filed directly in adult court (called a “direct filling”) or the juvenile court will determine whether or not the Minor is “fit” for juvenile court (called a “fitness hearing”).

Offenses Which Are Automatically Filed In Adult Court

If your child is at least 14 years old at the time of the offense, the District Attorney must file the following offenses in adult court:

  • Murder if the minor personally committed the murder and one of the special circumstances as listed in Penal code 190.2 exist.
  • Certain sex offenses where the minor personally carried out the offense and where special circumstances exist as listed in Penal code Section 667.61(d)

Juvenile Offenses that Might be Filed Directly in Adult Court

A prosecutor has the discretion, but is not required, to directly file a case in adult court in the following cases:

  • The minor is 16 years of age or older and the offense charged is one listed in Welfare and Insitutions Code 707(b).  This now includes all robbery offenses (first or second degree).
  • Any crime punishable by death or life in prison
  • Any crime in which the minor personally used a firearm.

The minor is 14 years of age or older and the offense charged is one of the following:

  • An offense that would be punishable by life in prison or death if committed by an adult. [Note: Children are NOT eligible for the death penalty]
  • A minor personally used a firearm in the commission of a felony
  • The offense is an offense listed in 707(b) with one or more of the following circumstances:
  • The minor has been previously made a Ward of the Court under Welfare and Institutions Code 602 (NOT a Dependent Ward under Sec. 300)
  • The offense is “gang related” as defined by Penal Code Sec. 186.22(f)
  • The offense is a “hate crime” as defined by Penal Code Sec. 426.6
  • The alleged victim is over 65 or disabled and the minor knew or reasonably should have known this fact.

It is important to remember that the each Los Angeles County Deputy District Attorney maintains a good deal of discretion in deciding whether to file the case in adult or juvenile court.  A qualified juvenile defense attorney who is familiar with the Los Angeles County Juvenile courts may be able to intervene early with the prosecutor in an effort to keep the case in juvenile court.

What is A Juvenile Fitness Hearing?

A juvenile fitness hearing is a hearing before the juvenile court which determines whether a minor will be prosecuted as a juvenile or as an adult.  Fitness hearings fall into one of three categories:

  1. If the minor is accused of committing an offense at the age of 16 or over and has no prior offenses, the District Attorney must prove by a “preponderance of the evidence” that the Minor should be tried as an adult.
  2. If the minor is over 16 at the time of the offense and has sustained two prior felony convictions after the age of 14, the court will presume the minor should be tried as an adult.  At the fitness hearing, the defense (the minor’s lawyer) must prove by a “preponderance of the evidence” that the case should stay in juvenile court.
  3. If the minor is 14 or over and committed an offense listed in Welfare and Institutions Code 707(b), the court will presume the minor should be tried as an adult.  The defense must show by a preponderance of the evidence that the case should stay in juvenile court.

Notice that the prosecution is only required to prove “unfitness” for juvenile court in sceanrio #1.  In situations #2 and #3, it is up to the defense to prove that the case should stay in juvenile court.

Factors Considered By The Court In Determining Fitness

When deciding whether or not a juvenile will be tried as an adult or a minor, the court is required to consider the following factors:

  1. The sophistication of the current alleged crime.
  2. The likelihood that the minor can be rehabilitated before he or she “ages out” of juvenile court jurisdiction.
  3. The minor’s previous criminal/delinquency history.
  4. The success of the minor on previous probations before the juvenile court
  5. The circumstances and the gravity of the current alleged offense.

There are severe risks and consequences to you or your child’s case going to adult court rather than juvenile court.  Contact a qualified Los Angeles County juvenile defense attorney to discuss you or your child’s case.  You may call attorney Jerod Gunsberg at 310-210-0744 for a free consultation.