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 (former 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 Changing definitions: Aftercare = conditional release Diversion = Immediate Intervention Program (IIP) 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

7 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

8 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 monthsfrom date of referral Exceptions for MH and SA treatemtn up to two more months

9 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

10 PROPOSED AMENDMENTS TO SB 367 (to be updated closer to CLE amendments are in committee, almost ready to be passed)

11 Case Law Update (details to be amended prior to CLE) 1. State v. Toliver Supreme Court of Kansas. April 14, P.3d WL CRIMINAL JUSTICE - Resisting Law Enforcement. Detective of a county police department was not a city or county correction officer of employee within meaning of felony battery statute.

12 State v. Rodriguez Supreme Court of Kansas. March 24, P.3d WL CRIMINAL JUSTICE - Habitual Offenders. Colorado convictions for third-degree assault could not be used to aggregate three person misdemeanors to person felony, in calculating criminal history score....supp (e) provided: Out-of-state convictions and juvenile adjudications shall be used in classifying the offender s criminal history... State v. DeWeese, Supreme Court of Kansas. January 20, P.3d WL CRIMINAL JUSTICE - Discovery. Post-trial disclosure investigator s report did not constitute Brady violation....neighbors were in the house along with Kimberly French, a juvenile runaway who was his housemate and the girlfriend of his... State v. Kleypas, Supreme Court of Kansas. October 21, Kan P.3d 373 CRIMINAL JUSTICE - Homicide. Intervening change in the law required reversal of attempted rape conviction as multiplicitous with murder conviction in violation of double jeopardy..

13 State v. Chapman, Supreme Court of Kansas. October 21, Kan P.3d 458 CRIMINAL JUSTICE - Investigatory Stop. Anonymous tip did not provide reasonable suspicion of criminal activity to support officer s investigatory stop of vehicle defendant was driving. State v. Dickey, Supreme Court of Kansas. October 07, Kan P.3d 230 CRIMINAL JUSTICE - Sentencing. Imposition of illegal sentences premised on erroneous criminal history score warranted vacation of sentences and remand for resentencing. State v. Wilkins, Supreme Court of Kansas. September 09, Kan P.3d 1082 CRIMINAL JUSTICE - Obstructing Justice. Evidence defendant encouraged codefendant with intact privilege against self-incrimination to not take plea did not constitute witness intimidation.

14 State v. Potts, Supreme Court of Kansas. June 24, Kan P.3d 639 CRIMINAL JUSTICE - Burglary. Defendant s unauthorized entry into vehicle with intent to steal vehicle and nothing else supported conviction of vehicular burglary. State v. Buser, Supreme Court of Kansas. April 22, Kan P.3d 886 CRIMINAL JUSTICE - Sex Offenders. Defendant could not be subjected to 25-year registration period in amended version of Offender Act without violating Ex Post Facto Clause.

15 Doe v. Thompson, Supreme Court of Kansas. April 22, Kan P.3d 750 CRIMINAL JUSTICE - Sex Offenders. Amendments to Kansas Offender Registration Act were punitive in effect, such that Ex Post Facto Clause barred application to certain sex offenders. State v. Shelly, Supreme Court of Kansas. March 25, Kan P.3d 820 CRIMINAL JUSTICE - Appeals. Defendant who dropped attempt to appeal based on counsel s inadequate advice was eligible to file out-of-time appeal.