Bar News - August 16, 2017
Juvenile Justice Reforms Increase Defense Role
By: Kathie Ragsdale
New measures passed by the state Legislature are changing the rules under which juvenile justice cases are handled – closing cases sooner, providing drug treatment for those who need it, and requiring potential placements for youth offenders other than secure detention, among other provisions.
The changes mean defense attorneys need to be more involved in decisions affecting placement of clients, and that probation officers need to widen their search for appropriate placements and work to transition youth out of secure detention at the Sununu Youth Service Center as soon as possible, according to both court officials and private attorneys who work with juveniles.
The reforms also mean that the cases of youths who are detained for adjudication or who are committed (see accompanying charts) are being tracked more closely, reducing the likelihood of a child spending his minority years at the Sununu Center.
The changes were included in House Bill 517, the state’s new two-year spending plan, on pages 73-80, and received relatively little if any media attention during the legislative session. The new procedures, which the governor signed into law in June, are being phased in through September of next year. The reforms:
- Require certification of two residential treatment facilities for non-violent offenders, and rate structures to support programming and staffing at the facilities;
- Prohibit “secure detention” for most non-violent offenders;
- Close cases (except those involving serious violent crimes) no later than two years after adjudication provided there have been no new offenses;
- Release a child committed to the Sununu Center for a non-violent crime within three months, following a probation hearing, if the offense would be a misdemeanor if committed by an adult, and require a review every two months if the child is not released;
- Require development of a plan for placement of non-violent offenders outside the Sununu Center, to be presented to the Legislature;
- Provide for redevelopment of excess capacity at the Sununu Youth Service Center for a drug treatment facility for juveniles and appropriate $2 million to do so;
- Appropriate $8.7 million to fund rate increases for community providers and additional capacity for out-of-home placements.
A group of advocates from the American Civil Liberties Union, Disability Rights Center, New Hampshire Legal Assistance, and Child and Family Services pushed for the changes, according to John DeJoie, children’s lobby coordinator for Child and Family Services. That came after they noticed the census at the Sununu Center lockdown had gone up over several years while community placements had diminished, partly as a result of state budget cuts, Dejoie says. That led to concerns that juvenile offenders were not being treated in the “least restrictive environment,” as state law requires.
State Rep. Kimberly Rice, R-Hudson, chair of the House Children and Family Law Committee, said the panel’s chief concern in considering the measures was protecting public safety while “making sure kids were being placed where they needed to be placed.” Some police officials and officials from the Sununu Center testified against the changes, she said.
Among those opposed to the measures was Jeffrey Meyers, commissioner for the NH Department of Health and Human Services, which oversees the Sununu Center. The changes would “likely result in the premature release of youth from SYSC that cannot be supported in the community with currently available resources,” he wrote in a March letter to the House Finance Committee. In addition, they would “effectively prevent the state from developing a behavioral treatment facility at SYSC that could be operated by the state.” Meyers argued such measures should not be considered until after an independent analysis of the existing capacity and needs of SYSC committed and detained youth in the community.
Others welcome the reforms.
The changes require the types of cases eligible for detention “to be decided in a more careful and thoughtful way,” says Circuit Court Administrative Judge Edwin Kelly,” who adds he is pleased that they also provide sorely needed funding for resources.
Kelly points out that juveniles in New Hampshire have often faced harsher punishment than adults for committing the same offense, citing the example of shoplifting. In the case of an adult, shoplifting is usually a Class B misdemeanor for which there would be no incarceration. A child might have to perform community service or pay restitution, but is also placed on “conditional release,” or juvenile probation, for a period of time. But, Kelly says, a violation of those release terms – for something as minor as skipping school or staying out past a prescribed curfew – could land the offender at the Sununu Center.
“Seeing how deeply kids get involved in the system, from vandalism to shoplifting, then they have all these rules no kid could meet, then there’s a probation violation,” adds Circuit Court Administrator Kate Geraci. “If they’re 14, they’re committed until they’re 18, if not at Sununu, under the watchful eye of a probation officer,” she adds, referring to how the system worked before enactment of the reforms. “That’s quite a consequence for a kid.”
Kelly cites the work of Professor Robert Kinscherff of William James College in Boston, who recently spoke to New Hampshire judges about how a child who enters the juvenile justice system is unlikely to get out.
In fact, Kelly says, “We don’t have a rampant juvenile crime problem in New Hampshire… Ninety-five percent of the kids who come to juvenile court are regular kids who did regular things and they’re not murderers or drug dealers… Most of these kids will self-correct.”
Nashua-based Public Defender Pamela Jones says the most common juvenile cases she sees are for offenses like disorderly conduct, often relating to behavior in school, domestic violence involving siblings, or criminal mischief like damaging property.
Defense attorney Anna Elbroch of Exeter, who testified before the House Children and Family Law Committee in support of the changes, says children have often been sent to the Sununu Center inappropriately.
“I can name many clients over the years who have been sent to the (Sununu) detention unit (to await adjudication) who did not need to be there – youth who had significant trauma histories, youth who had committed minor offenses, youth who were not able to be home immediately and the judge was led to believe there was no other option available or appropriate,” she says. “I can also think of clients who have been committed to the Sununu Center who did not need to be there and would have benefitted from a less secure, more treatment-focused facility.”
She notes that resources for youth, particularly residential treatment centers, have dwindled over the years, with the number available for females reduced from four to one, and several facilities for males closed, as well. In some cases, that has led to some youths being sent to the more restrictive Sununu Center when a different placement would have been more fitting.
“Juvenile dispositions work when we can individualize the treatment to the youth, taking into account the youth’s trauma history, criminal activity, family involvement, mental health needs and the other factors that present barriers to success,” she says.
Kelly offers similar thoughts. “In the ‘90s, there were more resources available for kids – therapy offered in the community – that don’t exist today,” he says. “Judges have been constrained, and police departments have virtually no resources available to them. If there’s a concern for safety, the child is likely to end up at the Sununu Center, which can be terribly inappropriate.”
The new limits on extended detention, closing of cases involving non-violent offenses within two years, and mandatory reviews of committed offenders also “provide the necessary statutory structure to address the over-representation of non-violent youth” at the Sununu Center, Elbroch says. “Sununu, at times, has become a place where kids are sent because there does not appear to be any other option. These provisions eliminate that possibility but still allow a secure commitment for the most serious violent children offenders – historically, a very small number.”
Other measures recently passed by the Legislature provide further protections for juvenile offenders – among them, HB 397, which prohibits the use of handcuffs on children in any part of a court facility open to the public (the restriction was already in place for courtrooms) and bars prosecutors from advising juveniles or their families to waive their right to counsel.
All told, the changes may mean more work for defense attorneys, probation officers and others who will now have to satisfy regulations meant to improve outcomes for juvenile offenders.
Defense lawyers “are going to have to be aware of what a kid’s history is, the limits on which kids can be committed and the limits on how long a kid’s case can remain open,” says Geraci.
Elbroch says that in the past, defense attorneys have often relied on probation officers to make recommendations for placement, but she hopes the new rules will keep them more involved in such decisions. Likewise, she says, probation officers will need to educate themselves about available placements so judges can be presented with the best options for the youths who come before them.
Said DeJoie, “We can do a lot better as a state to make sure our kids live out their adult lives contributing to society instead of staying in the system long-term.”
Kathie Ragsdale is a freelance writer based in Chester, NH.