revitalizing the code: delinquency & competency
DESCRIPTION
Randee J. Waldman presents the revisions to Article 6 and 7 of the revised Juvenile Code of Georgia. These revisions address youth intake, detention, adjudication, and disposition. It also addresses determining competency of youth to be adjudicated.TRANSCRIPT
REVITALIZING THE CODE:Delinquency and Competency
Randee J. Waldman | Barton Child Law & Policy Center
GCWLA – August 6, 2013
ARTICLE 6:DELINQUENCY
Article 6 – Purpose
The purpose of this article is:
Consistent with the protection of the public interest, to hold a child committing delinquent acts accountable for his or her actions, taking into account such child’s age, education, mental and physical condition, background, and all other relevant factors, but to mitigate the adult consequences of criminal behavior;
To accord due process of law to each child who is accused of having committed a delinquent act;
To provide for a child committing delinquent acts with supervision, care, and rehabilitation which ensure balanced attention to the protection of the community, the imposition of accountability, and the development of competencies to enable such child to become a reasonable and productive member of the community;
To promote a continuum of services for a child and his or her family from prevention of delinquent acts aftercare, considering, whenever possible, prevention, diversion, and early intervention, including an emphasis on community based alternatives;
To provide effective sanctions to acts of juvenile delinquency; and
To strengthen families and to successfully reintegrate delinquent children into homes and communities.
15-11-470
Article 6 – The Parties
Parties are: Alleged delinquent child The StateParent, guardian, or legal custodian:
Right to notice Right to be present in the courtroom Opportunity to be heard at all stages
DJJ: Notice of the disposition hearing
15-11-474
Article 6 – Role of Prosecutor Prosecuting attorney shall conduct
delinquency proceedings on behalf of the State. Entitled to complete access to all court
files, probation files, hearing transcripts, delinquency reports, and any other juvenile court records.
Filing of petition (“attorney”)
15-11-473
Article 6 – Defense Attorney
Right to counsel Right to represented by an attorney at all
proceedings Parent may not waive right to be represented Child may not waive if liberty is in jeopardyAccess to records Judge shall issue an order for dependency,
school and health or mental healthcare records Upon motion Written consent of child
15-11-475
Chapter 6 – Delinquency Case Timelines
Petition Alleging DelinquencyWithin 30 days of complaint or 30 days after
release
Arraignment HearingWithin 30 days of filing the petition
Adjudication HearingWithin 60 days of filing the petition
Disposition HearingWithin 30 days of adjudication hearing
If Child Is Not In Custody: If Child Is In Custody:
Detention Hearing(arrest warrant = 5 business days)
(no arrest warrant = 2 business days)
Petition Alleging DelinquencyWithin 72 hours of detention hearing
Adjudication HearingWithin 10 days of filing the petition
Disposition HearingWithin 30 days of adjudication hearing
15-11-472
Complaint/Intake
Article 6 - Intake15-11-510
At intake, child shall be informed of: Contents of complaint Nature of the proceedings Possible consequences or dispositions Due process rights
Right to an attorney Privilege against self-incrimination Right to remain silent Right to confront and cross-examine witnesses Right to testify Right to compel other witnesses to attend and testify Right to speedy adjudication hearing Right to appeal and be provided with transcripts
Article 6 – Detention Assessment15-11-505
Detention assessment must be administered by intake officer 'Detention assessment' means an actuarial tool,
approved by the board and validated on a targeted population, used to make detention decisions and that identifies and calculates specific factors that are likely to indicate a child's risk to public safety pending adjudication and the likelihood that such child will appear for juvenile proceedings for the act causing the detention decision to be made. (49-4A-1)
Article 6 – Place of Detention 15-11-504
May be detained in: Licensed foster home Home approved by the court Home of non-custodial parent or relative Facility operated by licensed child welfare
agency Secure or non-secure residential facility If 15 or older, may be held in jail for up to 24
hours if certain conditions are met Placement shall be in the least restrictive
facility
Article 6 – Detention Hearing 15-11-506
Shall be held no later than: 2 business days if custody without arrest warrant 5 business days if custody with arrest warrant Probable cause “review” within 48 hours
At detention hearing, court shall inform child of: Contents of complaint or petition Nature of the proceedings Right to make an application for bail Possible consequences or dispositions Due process rights
Article 6 – Detention Decision 15-11-
503
Probable cause Clear and convincing evidence that
freedom should be restrained, that no less restrictive alternatives will suffice, and that: May inflict serious bodily harm Demonstrated pattern of theft or
destruction of property such that detention is required to protect the property of others
Secure his or her presence in court
Article 6 - Bail15-11-507
Same right to bail as adults Only at intake or detention hearing
May release on bail if the court finds: Poses no significant risk of fleeing jurisdiction or
failing to appear in court Poses no significant threat or danger to any person,
to the community or to any property in the community.
Poses no significant risk of committing any felony pending trial
Poses no significant risk of intimidating witnesses or otherwise obstructing administration of justice
Article 6 - Petition15-11-520-523
Shall be filed by an attorney (prosecuting attorney or designee)
Timing: No later than 72 hours after detention hearing Within 30 days of filing of complaint
Contents (new requirements): Place of detention at time taken into custody If child is charged with Class A or Class B designated
felony act Amendments:
Prior to hearing After jeopardy, shall not be amended to include new
charges
Article 6 - Arraignment15-11-511
Shall be scheduled within 30 days of the filing of the petition (non-detained)
Court shall inform child of: Contents of petition Nature of the proceedings Possible consequences or dispositions Due process rights
Represented child may enter an admission Child whose liberty is not in jeopardy may
waive right to counsel
Article 6 – Failure to Appear15-11-532
Parent fails to appear or bring child Court may issue a rule nisi ordering person
to show cause Failure to appear in response to order to
show cause results in bench warrant Child 16 or older
Bench warrant Child 14 or 15 who willfully refuses to
appear Bench warrant
Article 6 – SB44015-11-560
No change to exclusive jurisdiction offenses
Voluntary manslaughter, aggravated sodomy, aggravated child molestation or aggravated sexual battery may be transferred to juvenile court by Superior Court judge. Treated as Class A designated felony act Appealable by the State
Article 6 – Transfer to Superior Court15-11-562
Factors for the Court to consider in making transfer decision: Age Seriousness Protection of community Violence or aggressive or premeditated manner Culpability of child (level of planning and participation) Repetitive pattern of offenses indicating beyond rehabilitation
in JJ Record and history Sophistication and maturity Program and facilities available Whether child can benefit from treatment or rehabilitative
programs available to juvenile court
Article 6 – Transfer to Superior Court15-11-562-564
Reports/Evaluations Probation report developing available information
relevant to transfer criteria Court may order transfer evaluation of clinical
statusAdmissibility Statements made during evaluation or at hearing
only used as impeachment or rebuttal evidenceAppeals Decision to transfer is an interlocutory judgment
and may be appealed by either party
Article 6 - Adjudication15-11-580 &
582
Timing If detained, within 10 days after the filing of
petition If not detained, within 60 days after the filing of
petitionUnderstandable Language Court shall address the child in language
understandable to the child in order to determine whether the child is capable of understanding such statements about his or her rights If capable, denial or admission
Chapter 6 – Disposition Options
Every
one
Order for dependent child - not temp DFCS custody
Counseling for child and parent/guardian
Supervised probation including probation management
Unsupervised probation
Studies High School diploma or equivalent
Community service
Restitution
Fines (traffic offenses)
Suspension of driver’s license
15-11-601
Article 6 – Disposition Options 15-11-
601
Felo
ny/
Mis
dem
ean
or(
+)
“Everyone” options
Facility/institution/camp for delinquent children
Commitment to DJJ
Up to 30 days in secure residential facility or treatment program provided by DJJ or
juvenile court
**Applicable for felonies and misdemeanors if child has at least one prior felony adjudication and at least three other prior adjudications for a delinquent act.
Article 6 – Designated Felonies 15-11-602
Order made within 20 days of disposition hearing Risk assessment to be completed Order to include:
Finding, based on preponderance of evidence, whether restrictive custody required
If low risk, written findings as to why placement in restrictive custody is necessary
Written findings as to each of the following factors: Age and maturity Needs and best interest of child Record, background and risk level of child Nature and circumstances of offense Need for protection of community Age and physical condition of the victim
15-11-475
Article 6 – Designated Felonies
Behavioral Health Evaluations: The Court SHALL order and give
consideration to the results before ordering a DF child to restrictive custody
15-11-477
Article 6 – DF Disposition Options15-11-602
Class B Designated Felony
If restrictive custody not required
felony/misd.(+) options
Initial DJJ custody up to 36 months, no more than 18
months in restrictive custody
Moderate/High Risk Child at least half of period in secure residential facility, remainder at DJJ discretion
Low Risk Child non-secure residential facility (“shall” or “may”?)
Intensive supervision after confinement
(not to exceed 6 months)
Article 6 – DF Disposition Options15-11-602
Class A Designated Felony
If restrictive custody not required
felony/misd.(+) options
Initial DJJ custody up to 60 months
Confined in secure residential facility for period set by order
Intensive supervision after confinement
(not to exceed 12 months)
Article 6 – DF Disposition Options15-11-602
Developmental disability If ordered confined to restrictive custody, but diagnosed
with DD and not amendable to treatment in a secure residential facility, DJJ may transfer to non-secure residential facility Must notify prosecuting attorney and judge
Mandatory secure confinement Serious physical injury upon person 72 or olderCredit for time served All time spent in secure or non-secure residential facility
shall be counted toward confinement periodEarly release May be filed every 6 months
Article 6 – Designated Felony Classes
Class A Designated Felony Acts
Aggravated assault or assault with a deadly weapon that resulted in serious injury
Aggravated battery Armed robbery (no firearm) Arson (first degree) Attempted murder Escape if previously Class A or B Hijacking a motor vehicle Kidnapping Criminal gang activity (most
types) Trafficking of substances Fourth felony adjudication if one
was a felony crime against a person or a sexual offense
Class B Designated Felony Acts
Aggravated assault or assault with a deadly weapon that did not result in serious injury
Arson (second degree)
Attempted kidnapping
Battery against school personnel
Racketeering
Robbery
Gang related graffiti
Smash and grab burglary
Destructive device and hoax device crimes
Second car theft
Second possession of a handgun
School weapons violations
Fourth felony adjudication
15-11-2(12&13)
Additional Noteworthy Changes Law enforcement officer may detain child for reasonable
period of time sufficient to conduct interrogations or perform routine law enforcement procedures (i.e. fingerprinting and photographing) 15-11-502(b)
Victims’ rights Entitled to same rights, notices and benefits as the victim of crime
committed by adult (victim impact) 15-11-481
Notice regarding release from detention for DF acts. 15-11-508
Jeopardy attaches: Denial first witness sworn Admission Court accepts admission
11-15-480
ARTICLE 7:INCOMPETENT TO PROCEED
Article 7 – Definitions15-11-651
Incompetent to proceed: Lacking sufficient present ability to understand the
nature and object of the proceedings, to comprehend his or her own situation in relation to the proceedings, and to assist his or her attorney in the preparation and presentation of his or her case in all adjudication, disposition, or transfer hearings. Such terms shall include consideration of a child’s age or immaturity.
Competency remediation services Outpatient interventions directed only at facilitating
the attainment of the competence to proceed May include: mental health treatment to reduce symptoms
or specialized psychoeducational programming.
Article 7 – General Provisions 15-11-
652
Applicable in CHINS and delinquency proceedings
Competency evaluation may be ordered on court’s own motion or on motion of any party, GAL, parent/guardian
If child under 13 is alleged to have committed a serious violent felony, competency evaluation must be ordered
Court must appoint attorney prior to evaluation Competency evaluation stays all proceedings
Article 7 – Competency Evaluation15-11-
653
Written report shall be submitted within 30 days of court’s order (extension may be granted)
If not competent, report should include: Opinion as to primary cause of
incompetency (immaturity, mental illness, developmental disability or a combination)
Opinion as to whether substantial probability will attain competency in foreseeable future
Article 7 – Competency Hearing 15-11-655
Within 60 days after court order for evaluation
Burden on child Standard of proof preponderance of
evidence Examiner considered the court’s witness
and subject to cross-examination by child’s attorney and prosecuting attorney
Article 7 – Competence May Be Remediated15-11-656
Court may dismiss without prejudice or order competency remediation services. Court shall consider: Probable cause Nature of incompetency Age Nature of alleged act
If competency remediation services ordered, court retains jurisdiction: Felony up to 2 years with review hearings at least every 6
months Misdemeanor up to 120 days
If detained in secure or non-secure residential facility: Order releasing within 5 days
Article 7 – Unrestorably Incompetent15-11-658
Court shall: Dismiss the petition Appoint a plan manager Order that procedures that a
comprehensive services plan be initiated under Article 5 (CHINS)