Download Decriminalization of Youth Work Group: Draft Recommendations

Children’s Policy and Law Initiative of Indiana
Equitable School Discipline and the Decriminalization of Children Summit, October 8, 2013
Decriminalization of Youth Work Group
Draft Recommendations
According to the Office of Juvenile Justice and Delinquency Prevention, youth
who are transferred from the juvenile court system to the adult criminal system are
approximately 34% more likely than youth retained in the juvenile court system to be
rearrested for violent or other crime.1
The disproportionate number of minority youth directed into the adult criminal
justice system is astounding. Nationally, African-American youth represent only 17% of
the overall youth population, but they make up 30% of those arrested and a staggering
62% of those prosecuted in the adult criminal system. They are also nine times more
likely than white youth to receive an adult prison sentence.2 Hispanic youth are 43%
more likely than white youth to be waived to the adult system and 40% more likely to
be admitted to the adult prison system.3
Disparities are particularly pronounced in the prosecution of drug offenses.
White youth are more likely to report using drugs and 30% more likely to report selling
drugs; even so, African-American youth are twice as likely to be arrested and detained,
and significantly more likely to be waived to adult court for drug offenses. Black youth
made up 60% of the youth detained for selling drugs and 43% of the youth detained for
1
Juvenile transfer laws: An effective deterrent to delinquency? (Washington, D.C.: U.S. Department of Justice, Office
of Justice Programs, Office of Juvenile Justice and Delinquency Prevention) (June 2010).
2 Arya, N. & Augarten, I. Critical Condition: African-American Youth in the Justice System. (2008, September)
Washington, DC: Campaign for Youth Justice.
3 Arya, N., Villarruel, F., Viallnueva, C., & Augarten, I. America’s Invisible Children: Latino Youth and the Failure of
Justice. (2009, May) Washington, DC: Campaign for Youth Justice.
Children’s Policy and Law Initiative of Indiana
Equitable School Discipline and the Decriminalization of Children Summit, October 8, 2013
other drug offenses in 2006. A study of 40 jurisdictions revealed that African-American
youth were prosecuted in adult court at nearly 5 times the rate of white youth for drug
offenses.4
In Indiana our statutory scheme reflects the high legal and moral obligations
vested in those who participate in the juvenile justice system. The system is grounded in
the belief that fairness and prevention will save our youth from a dismal and costly life
of crime.5 Unlike the adult justice system, the juvenile justice system’s primary focus is
rehabilitation. The “direct file” in adult criminal court of juveniles alleged to be involved
in gangs or unlawful substances deprives youth who are not yet hardened of the
opportunity to make a turn for the better. Once in the adult criminal justice system the
opportunities for treatment, interventions and education greatly diminish for youth.
Without proper access to critical services youth with adult records face a bleak future
with little opportunity to contribute to society in a positive way.
The determination of whether to waive a juvenile into the adult court system is
best left to the expertise and experience of the juvenile court. The juvenile court has
4
Arya, N. & Augarten, I. Critical Condition: African-American Youth in the Justice System. (2008, September)
Washington, DC: Campaign for Youth Justice.
5 IC 31-10-2-1
Policy and purpose
Sec. 1. It is the policy of this state and the purpose of this title to:
. . . (5) ensure that children within the juvenile justice system are
treated as persons in need of care, protection, treatment, and
rehabilitation;
. . . (10) provide a judicial procedure that:
(A) ensures fair hearings;
(B) recognizes and enforces the legal rights of children and
their parents; and
(C) recognizes and enforces the accountability of children
and parents;
Children’s Policy and Law Initiative of Indiana
Equitable School Discipline and the Decriminalization of Children Summit, October 8, 2013
the proper experience to determine whether a particular juvenile can benefit from the
services, supervision and interventions available through the juvenile court. It will also
alleviate the unnecessary financial burden upon Indiana’s already overwhelmed adult
criminal justice system.
Over the last several decades Indiana’s direct file statute (I.C.31-30-1-4) has
grown to include twelve separate criminal offenses, in addition to listed drug offenses.
Children who are 16 years of age or older who are charged with a listed offense are
excluded from juvenile jurisdiction and prosecuted as adults. There are many
consequences to youth bypassing juvenile court, including placing youth in
developmentally inappropriate jails and programs. Furthermore, the definition of
criminal gang activity (I.C. 35-45-9-1; 35-45-9-3) and prosecutorial charging practices
regarding the criminal gang activity and drug listed offenses are of particular concern to
disproportionate minority contact.
The Decriminalization of Youth Work Group presents the following draft
recommendations to address implications associated with the current criminal gang and
direct file statutes. To briefly summarize, changes to the criminal gang statute include
the addition of language to clarify the definition of “criminal gang.” Currently, the
statutory requirements which automatically place teenagers in the adult court system
for participating in “criminal gang activity” are overbroad, leading to prosecution of
innocuous juveniles in the adult criminal system, who are better served within the
rehabilitative aims of the juvenile justice system. The suggested language changes adds
Children’s Policy and Law Initiative of Indiana
Equitable School Discipline and the Decriminalization of Children Summit, October 8, 2013
the requirement that an eligible offense involve the commission of a felony (or an act
that would be a felony if committed by an adult) that is done as a condition of
membership in a gang. The new language also ensures that the gang has an
organizational, structural component.
Another important change is the removal of misdemeanor batteries from listed
criminal gang offenses. This change will eliminate the waiver of juveniles to adult court
for an offense of battery which would be classified as a misdemeanor if committed by
an adult. It is important to understand that a misdemeanor battery consists merely of
touching another person in a rude, insolent or angry manner resulting in bodily injury.
This could be a result of something as minor as shooting a rubber band at a classmate
resulting in a red mark on the skin.
Changes to the direct file statute, I.C. 31-30-1-4, include the deletion of all
criminal gang and drug-listed offenses. All suggested statutory changes follow.
Suggested Statutory Changes
1) CPLI proposes amending I.C. 35-45-9-1 as follows:
"Criminal gang"
Sec. 1. As used in this chapter, "criminal gang" means a group with at least three (3) members that specifically:
(1) either:
(A) promotes, sponsors, or assists in; or
(B) participates in; or and
(2) requires as a condition of membership or continued membership;
the commission of a felony or an act that would be a felony if committed by an adult or the offense of battery (IC 3542-2-1). and
(3) collectively engages in a pattern of criminal gang activity; and
(4) have in common an overt or covert organization or command structure.
2) CPLI proposes amending I.C. 35-45-9-4 Version b as follows:
Threats; refusal to join or withdrawal from gang; intimidation offense
Sec. 4. A person member of a criminal gang who threatens another person because the other person:
(1) refuses to join a criminal gang;
Children’s Policy and Law Initiative of Indiana
Equitable School Discipline and the Decriminalization of Children Summit, October 8, 2013
(2) has withdrawn from a criminal gang; or
(3) wishes to withdraw from a criminal gang;
commits criminal gang intimidation, a Level 5 felony.
This change ensures that true gang membership must be proven in order to charge a
juvenile with a high level felony in the adult court system.
3) CPLI proposes amending I.C. 31-30-1-4 as follows:
Juvenile court lacks jurisdiction over individuals at least 16 years of age committing certain felonies; retention
of jurisdiction by court having adult criminal jurisdiction
Sec. 4. (a) The juvenile court does not have jurisdiction over an individual for an alleged violation of:
(1)IC 35-41-5-1(a)(attempted murder);
(2)IC 35-42-1-1(murder);
(3)IC 35-42-3-2(kidnapping);
(4) IC 35-42-4-1 (rape);
(5) IC 35-42-4-2 (criminal deviate conduct);
(6) IC 35-42-5-1 (robbery) if:
(A) the robbery was committed while armed with a deadly weapon; or
(B) the robbery results in bodily injury or serious bodily injury;
(7) IC 35-42-5-2 (carjacking);
(8) IC 35-45-9-3 (criminal gang activity);
(9) IC 35-45-9-4 (criminal gang intimidation);
(10) IC 35-47-2-1 (carrying a handgun without a license), if charged as a felony;
(11) IC 35-47-10 (children and firearms), if charged as a felony;
(12) IC 35-47-5-4.1 (dealing in a sawed-off shotgun); or
(13) any offense that may be joined under IC 35-34-1-9(a)(2) with any crime listed in subdivisions (1) through
(12);
if the individual was at least sixteen (16) years of age at the time of the alleged violation.
(b) The juvenile court does not have jurisdiction for an alleged violation of manufacturing or dealing in cocaine or a
narcotic drug (IC 35-48-4-1), dealing in methamphetamine (IC 35-48-4-1.1), dealing in a schedule I,II, or III controlled
substance (IC 35-48-4-2) or dealing in a schedule IV controlled substance (IC 35—48-4-3), if:
(1) the individual has a prior unrelated conviction under IC 35-48-4-1, IC 35-48-4-1.1, IC 35-48-4-2, or IC 3548-4-3; or
(2) the individual has a prior unrelated juvenile adjudication that, if committed by an adult, would be a crime
under IC 35-48-4-1, IC 35-48-4-1.1, IC 35-4-2, or IC 35-48-4-3; and the individual was at least sixteen (16)
year of age at the time of the alleged violation.
(b) Once an individual described in subsection (a) or (b) has been charged with any crime listed in subsection (a) or (b),
the court having adult criminal jurisdiction shall retain jurisdiction over the case even if the individual pleads guilty to
or is convicted of a lesser included offense. A plea of guilty to or a conviction of a lesser included offense does not vest
jurisdiction in the juvenile court.