Juvenile Law in Kansas after SB367: What s Changed, What s next? Melanie DeRousse

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1 Juvenile Law in Kansas after SB367: What s Changed, What s next? Melanie DeRousse May 18-19, 2017 University of Kansas School of Law

2 Recent Developments in Kansas Juvenile Law Melanie DeRousse, Clinical Associate Professor of Law and Director, Douglas County Legal Aid Society, Inc. University of Kansas School of Law

3 What we will cover Legislative: S.B. 367 Overview, Implementation, and Amendments Possibilities for session Case Law: Kansas selected cases Federal selected cases

4 S.B. 367 Comprehensive juvenile reform bill, passed in 2016 Key ideas: Reduce unnecessary detention of kids Implement evidence-based, community alternatives

5 Core reforms in S.B. 367 Case, probation, and detention limits Graduated, community-based responses for technical violations Reintegration planning for juveniles placed outside the home Immediate Intervention Programs (formerly Diversion) and Multidisciplinary Teams now with specific programming requirements Training of all involved through OJA (this covers everyone, including DAs, juvenile defense attorneys, and judges as well as school personnel, community supervisors, JIAC workers, juvenile corrections, etc.)

6 Computation of sentence to include earned time and discharge, and to incorporate new case length limits Removes juvenile detention facility from CINC definitions of secure facility effective July 1, 2019 SUNSET PROVISION after July 1, 2019, CINC children may not be housed in juvenile detention facilities as a form of secure placement. Changing definitions: Aftercare = conditional release Diversion = Immediate Intervention Program (IIP)

7 Core reforms in S.B. 367 Changes to ways in which community corrections or court services officers may take children into custody Removes authority to take into custody based upon officer s belief in violation of probation or placement Removes authority to arrest without a warrant Must now give court a written statement that this is the third or subsequent violation AND That the juvenile poses a significant risk of physical harm to another or damage to property (removes third category of harm to self, but there is an amendment pending about this) Mandates that instead of taking child into custody, child should be brought to parent or guardian unless reason to believe doing so would not be in best interests of the child or would pose risk to public safety or property Additional changes governing the NTA that an officer can provide before release in order to secure child s appearance at JIAC

8 Changes to criteria for detention Reliance on Risk Assessment Instrument (RAI) or, if override, must make findings Probable cause finding is required Court must make written findings Prohibits placement in JDC where due solely to lack of supervision alternatives or placement options or Parent avoiding legal responsibility Risk of self-harm Contempt of court Violation of valid court order or technical violations of conditional release Unless there is probable cause that the juvenile poses a Significant risk of harm to others or damage to property Or graduated responses or sanctions protocol allows placement Changes to Juvenile Intake and Assessment

9 Risk Assessment Instrument (RAI) (e): (e) Detention risk assessment tool means a risk assessment instrument adopted pursuant to K.S.A (f), and amendments thereto, used to identify factors shown to be statistically related to a juvenile s risk of failing to appear in court or reoffending pre-adjudication and designed to assist in making detention determinations.

10 Immediate Intervention changes First appearance and immediate intervention all children should be informed of the right to an Immediate Intervention (formerly diversion) Now must be created and offered (formerly discretionary by court, county, or DA) Counties must develop local programs Allows IIP providers to directly purchase services for child and family Removes limitations on eligibility for IIPs A child with a misdemeanor unlawful sexual relations, no prior adjudications, may now participate Child with fewer than two prior adjudications may participate if referred by DA after review of case IIP may be supervised or unsupervised Plan can be no longer than 6 months from date of referral Exceptions for MH and SA treatment up to two more months

11 Prosecution as and adult / extended prosecution Changes to limit option to designate EJJP proceedings to off-grid felonies or nondrug severity level 1 through 4 person felonies Presumption that a juvenile is a juvenile can be rebutted by a preponderance of the evidence Age raised for waiver: from 12 (old) to 14 (new) Removes presumptions based upon ages, crime severity, or other factors. EJJP no longer attaches to future prosecutions upon conviction Additional changes for post-adjudication orders, assessment of mental health, etc. Changes to Sentencing Alternatives Amendments to the alternatives list Required use of RAI for all sentencing and probation decisions No detention solely for technical violations of probation (similar to list above) Changes to offender categories Changes to school reporting / law enforcement interaction

12 CHANGES TO THE CHANGES! (Thanks to Matt Conklin, Kansas Appleseed, for these updates) S.B. 42 Amends some of S.B. 367 s reforms before they take effect as follows: Absconding from Supervision will not be considered a technical violation of probation courts may issue a warrant for an absconder after reasonable efforts to locate the juvenile are unsuccessful. Also, overall case length or probation term limits will be tolled during the period that a juvenile has absconded from supervision. Statute governing failure to obey conditions of release also amended to add absconding as an event that would allow supervising offer to file a report detailing the violation and the child s history of violations Absconding also added to statutes allowing a supervising officer to request a warrant and enabling a court to extend or modify probation terms

13 S.B. 42 Amendments, continued Immediate Intervention Programs (Diversions) - Require KDOC to establish and maintain searchable statewide database containing information about children who participate in IIPs. - Exclude children charged with sex offense from the requirement of a diversion opportunity - Participation need not be offered to a child who has participated in the program for a previous misdemeanor or for a previous felony amended to a misdemeanor due to a plea agreement - Nothing will require a child to participate in IIP when DA has declined to continue prosecution of alleged offense Sentencing and Placement - Amends placement matrix if firearm was used in felony offense, judge may commit directly to Secretary for placement in JCF or Youth Residential Facility for 6-18 months, regardless of risk level - (SB 367 allowed placement in JCF only when judge made written findings that the juvenile poses a significant risk of harm to another or dmage to property AND the juvenile had been adjudicated for certain high-level felonies or has certain prior offenses and is assessed as high risk or a risk and needs assessment)

14 S.B. 42 Amendments, Continued Sentencing and Placement, Continued - Consolidates serious offender III and serious offender IV categories into a single serious offender III category New findings required upon removal from home: Bill creates a new law requiring, when a juvenile is removed from home for the first time pursuant to juvenile code, that the judge consider and make the following findings: Juvenile is likely to sustain harm if not immediately removed from the home; Allowing juvenile to remain in home is contrary to the welfare of the juvenile, or Immediate placement of the juvenile is in the juvenile s best interest And Reasonable efforts have been made to maintain the family unit and prevent the unnecessary removal of the juvenile from the juvenile s home or an emergency exists that threatens the safety of the juvenile

15 What didn t pass? Disparate impact on minority contact study Amendment to require parental representation or consultation before school interrogations Not allowing school/law enforcement in the schools to administer school discipline only SROs to be allowed to enforce school policies. Amendment to prevent jurisdictions from policies of indiscriminate juvenile shackling did not pass

16 Case Law Update Quick Supreme Court review relevant recent cases What is Kansas doing with those cases? What other things are going on in Kansas juvenile cases? Issues of interest in other jurisdictions?

17 Quick Supreme Court review Roper v Simmons, 543 U.S. 551 (2005) The imposition of the death penalty for crimes committed by juveniles is cruel and unusual punishment within the meaning of the 8 th Amendment. Justice Kennedy, writing for the majority, noted that the Court consistently limited the death penalty to the very worst of offenders. Citing to the most recent social and neuroscience, he discussed three general characteristics separated children from adults, simultaneously serving to remove juveniles from the category of the very worst of offenders. First, juveniles lack maturity and have an underdeveloped sense of responsibility, resulting in impetuous and ill-considered actions and decisions. Second, juveniles are more vulnerable and susceptible to negative influences and outside pressures, including peer pressure. Third, the character of a juvenile is not as well formed as that of an adult. Thus, they possess far more potential for rehabilitation. Graham v. Florida, 130 S.Ct (2010) Expanding upon the analysis in and logic of Roper, the Supreme Court held that it was unconstitutional to impose the penalty of life imprisonment without the possibility of parole on juveniles. The opinion also noted that young people have difficulty participating in their own representation. While a state need not guarantee the offender eventual release it must provide some realistic opportunity to obtain release before the end of that term. The holding in Graham left unanswered what the Court meant by a realistic opportunity to obtain release. Miller v. Alabama, 567 U.S. (2012) The Court continued the Roper Graham line of cases, and held that juveniles cannot be sentenced to life without the possibility of parole for homicide crimes, where such a sentence is the only option. Mitigating factors must be taken into account before a juvenile can be sentenced to life without the possibility of parole.

18 Quick Supreme Court Review Montgomery v. Louisiana, 136 S.Ct. 718 (2016) Background: State prisoner, who had been convicted of murder and sentenced to life without parole for a crime he committed as a juvenile, moved to correct an illegal sentence. Holdings: The Supreme Court, Justice Kennedy, held that: Supreme Court has jurisdiction to review a state collateral review court's failure to give retroactive effect to a new rule which the Constitution requires to be applied retroactively; Federal Constitution requires state collateral review courts to give retroactive effect to new substantive rules of federal constitutional law under the Teague framework; and Supreme Court's decision in Miller v. Alabama, prohibiting under Eighth Amendment mandatory life sentences without parole for juvenile offenders, announced a new substantive constitutional rule that was retroactive on state collateral review, abrogating Martin v. Symmes, 782 F.3d 939, Johnson v. Ponton, 780 F.3d 219, Chambers v. State, 831 N.W.2d 311, and State v. Tate, 130 So.3d 829.

19 Applying Roper-Graham-Miller In Kansas: State v. Dull, 302 Kan. 32 (Kan. 2015) 1 mandatory lifetime postrelease supervision [for aggravated indecent liberties with a child] was categorically cruel and unusual punishment in violation of the Eighth Amendment, but 2 trial court did not abuse discretion in imposing consecutive sentences. State v. Medina, 53 Kan.App.2d 89 (Kan.Ct.App. 2016) 1. A categorical proportionality challenge under the Eighth Amendment to the United States Constitution is a question of law over which an appellate court has unlimited review. 2. The holding in State v. Dull, 302 Kan. 32, 351 P.3d 641 (2015), cert. denied 577 U.S., 136 S.Ct. 1364, 194 L.Ed.2d 359 (2016), that mandatory lifetime postrelease supervision is categorically unconstitutional when imposed on a juvenile convicted of aggravated indecent liberties with a child, applies to all juveniles convicted of a sex offense.

20 Rationale of KS Supreme Court in Dull, Medina proportionality analysis Following Graham two-prong analysis: 1. Whether objective indicia of society s standards demonstrated national consensus against sentencing practice of mandatory lifetime supervision no national consensus 2. Exercise independent judgment and consider culpability of juvenile offenders, the severity of mandatory lifetime supervision, and the legitimate penological goals served Culpability Miller, Graham, Roper neuroscience treat juveniles differently Severity restricts liberty for life with no hope of removal of restrictions Penological goals for juveniles, these are different retribution/deterrence inappropriate

21 Quick Supreme Court Review J.D.B. v. North Carolina, 131 S. Ct (2011) Issue: whether age was a factor defining custody for Miranda purposes. J.D.B., age 13, was a special-education student, suspected of burglary. During school, while J.D.B. was in class, a uniformed police officer brought him from his classroom into a conference room, where he was questioned by the assistant principal, school administrator, and a police investigator. He was never read his Miranda rights, nor were his guardians notified. J.D.B. incriminated himself in the burglaries. Only after J.D.B. incriminated himself in the burglaries was he informed that he was free to leave. Sotomayor: in some circumstances, a child s age would have affected how a reasonable person in the suspect s position would perceive his or her freedom to leave. From Roper - commonsense conclusions about behavior and perception, apply broadly to children as a class. Children generally are less mature and responsible than adults, often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them, and are more vulnerable or susceptible to... outside pressures than adults. In the specific context of police interrogation, events that would leave a man cold and unimpressed can overawe and overwhelm a [teen]. Age is a factor to be considered in determining whether an individual is in custody.

22 Application of J.D.B.? Applying J.D.B. v. North Carolina: In Kansas: In the Matter of S.R., 2017 WL , (unpublished) April 7, 2017 In Missouri: In the Interest of J.L.H., 488 S.W.3d 689 (Mo.App. W.D. 2016) Missouri has statutorily-mandated warnings that must be given; public safety exception did not apply

23 Applying J.D.B. In the Matter of S.R., 2017 WL (Kan.App. April 7, 2017) (unpublished): Child made inculpatory statements during a police interrogation without Miranda warnings or opportunity to consult with mom or attorney Child was charged with aggravated criminal sodomy District court granted MTS; State filed interlocutory appeal Court of Appeals affirmed suppression of statements