North Carolina House Bill 879: An Unlikely Smooth Ride to Reform

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By Eric J. Zogry, the State Juvenile Defender for North Carolina

In June 2015, North Carolina Governor Pat McCrory signed House Bill 879 into law.  While there was no ceremony and little press, the new “Juvenile Justice Reform Bill” contained the most significant changes that the North Carolina Juvenile Code had seen in over fifteen years.  With this piece of legislation, a small group of advocates had come together to produce statutory changes that  had the potential to promote stronger due process protections and better outcomes for youth in juvenile delinquency courts across the state.

Genesis

In the spring of 2014, the NC Office of the Juvenile Defender (OJD) was approached by a group of experienced lobbyists hired by national juvenile justice reformers.  The lobbyists, who had worked with OJD on the “raise the age” campaign, proposed that OJD present commonsense, positive-outcome reform to the NC Juvenile Code, which had not been changed in any substantive way in over fifteen years.  OJD, guided by advice from practitioners, appellate court decisions, and juvenile court observations over the last decade, then assembled a package of statutory revisions organized around three main themes: improving due process protections for youth, reducing further entry into the juvenile justice system, and limiting the use of confinement.  The proposals were fairly unique to current processes in the NC juvenile justice system, although undoubtedly they have corollaries in other jurisdictions. Once they were further narrowed internally and approved by early stakeholders after careful consideration of potential opposition, a two pronged strategy emerged to ensure the greatest likelihood of success in the state legislature.

Strategy

Next, OJD approached the North Carolina Bar Association (NCBA) for endorsement, while the lobbyists considered possible legislative sponsors.  The NCBA, a volunteer lawyer organization, endorses legislative proposals that have been supported by all sections of its membership and approved by its legislative committee as well as its board of governors. The proposals were first presented to the Juvenile Justice and Children’s Rights Section (the Section), a group comprised of attorneys, advocates, and academics who are experts in children’s rights.  The Section quickly approved five of the proposals, which over the next several months travelled through the organization’s approval channels before receiving final endorsement in December 2014.  This endorsement was crucial because it included the support of a number of prosecutors and judges who were NCBA members.  Simultaneously, OJD worked with the Section to field concerns regarding the additional proposals, making improvements in the hope of achieving broader NCBA acceptance.  Meanwhile, the lobbyists carefully selected sponsors among the NC General Assembly, seeking out those with experience in juvenile justice and an interest in improving outcomes for youth, spending time discussing the broad issues, and fielding questions.

Off to Jones Street

As the 2015 Session of the General Assembly began in January, bills containing the proposals were drafted and introduced in both the House of Representatives and Senate.  The team then met with all the sponsors, who, despite the “technical” nature of some of the proposals, caught on quickly to the underlying themes and were energized to make their pitch.  Ultimately, the House version became the vehicle for reform, even including two important additions from one of the sponsors (mandating that juvenile court judges explain the expunction process to eligible youth, and restricting the shackling of very young children who are transported to mental health facilities).  In the House drafting committee, the bill fielded several frantic but friendly amendments from the N.C. Sheriff’s Association, the Division of Adult Corrections and Juvenile Justice, and committee members.  With a favorable report, H879 passed in chamber nearly unanimously in its amended form.  The bill then sailed through the Senate Committee without comment or concern.  Upon its final vote on the Senate floor, the bill was temporarily removed for closer consideration, but it was then returned to the floor with only the section on expunction removed (to be considered in a later bill), and it passed without a single nay.  The House accepted all the changes, and the governor signed the bill into law.

Details of the New Legislation

Due Process Protections

Sections 1.1 through 1.4 of HB 879 address several points during the delinquency court process that had raised due process concerns:

  • Section 1.1 extends the requirement to 14 and 15-year-olds that a parent or attorney be present during custodial interrogation in order for an admission or confession to be admitted into evidence (previously, this protection applied only to those under age 14).
  • Sections 1.2 and 1.3 clarify that after a probable cause hearing (required for felonies for youth 13 years or older) or transfer hearing (required for prosecuting juveniles in adult court), if the case is to continue to adjudication in juvenile court, there must be a separate adjudicatory hearing (under previous appellate court decisions, adjudicatory hearings were not mandatory after probable cause and transfer hearings, even though the state’s burden of proof is higher at adjudication).
  • Section 1.4 creates a procedure and imposes requirements for the filing of and conducting hearings on motions to suppress in delinquency court, largely adopting the more rigorous adult criminal procedure on such motions.

Reduce Further Entry into the Juvenile Court System

Sections 2.1 through 2.6 implement requirements to reduce further entry into the delinquency system:

  • Section 2.1 emphasizes the duty of the juvenile court counselor to make reasonable efforts to meet in person with the juvenile and parent to determine whether a petition should be filed.
  • Section 2.2 creates a procedure for voluntary dismissal of delinquency petitions by the prosecutor.
  • Section 2.3 explicitly defines a “prior adjudication” as an adjudication that occurs before the adjudication currently before the court.
  • Section 2.4 more clearly defines the parameters for hearing an extension of probation and explicitly clarifies that upon a violation of probation, the court may increase the child’s disposition level or give twice the term of confinement authorized by statute, but it may not do both.
  • Section 2.5 imposes a new obligation on the court to inform a juvenile of the right to petition for an expunction after meeting statutory requirements.

Reduce Rates of Juvenile Confinement

Sections 3.1 and 3.2 are designed to reduce juvenile court reliance on confinement:

  • Section 3.1 includes two new provisions: it clarifies that for juveniles placed in secure custody after adjudication and before disposition, or after disposition and pending placement, the court must have hearings every ten days (which can be waived only by and through counsel) and the court must make findings of facts in its order.   It also creates a provision that juveniles under age ten who are found to be in need of medical or psychiatric treatment should not be restrained unless safety concerns require it.
  • Section 3.2 codifies case law providing that the judge—not the juvenile probation officer—has the sole discretion to determine when a juvenile may be placed in custody as a dispositional sanction.

Impact of the New Legislation

Improving Juvenile Defense Practice

Increased procedural safeguards are only as effective as the degree to which are enforced.  Therefore, it is the duty of defense counsel to ensure that his/her client’s rights are protected at every stage of the proceedings.

The new legislation provides several opportunities for more vigorous defense, including imposing the following obligations:

  • Defense counsel should work with prosecutors to secure deferrals in order to reduce adjudications;
  • They should work to ensure that all pending adjudications are resolved prior to any disposition being entered so as to limit the child’s exposure to further punishment;
  • They should speak to qualified juveniles, in detail, about their right to an expunction, including an explanation of the benefits, tools for assisting them, and available resources.
  • To protect against unnecessary confinement, they should request that the judge issue specific findings upon deciding to keep a juvenile in secure custody pending disposition or placement.

Reducing Impact on Minority Populations

The disproportionate representation of minorities in the juvenile justice system is well known.  The causes of overrepresentation are complicated and cannot be linked to just one factor.  However, this new legislation may lessen the negative impact of the system on minority populations in the following ways:

  • According to recent data from the NC Division of Adult Corrections and Juvenile Justice and the Governor’s Crime Commission, African-American youth are about three times more likely to be referred to the juvenile justice system than white youth.  Therefore, it is likely that their overrepresentation at arrest is also high, exposing more African-American youth to interrogation.  The new law that increases the age at which parents or attorneys must be present at interrogations could reduce the possibility of false confessions, or at least provide minority youth with better counseling on their right against self-incrimination.   Also note that confessions or admissions are often the primary evidence in many juvenile prosecutions.   
  • The NC Sentencing and Policy Advisory Commission has found fairly consistently that African-American youth who receive adjudications are more likely to reoffend than youth of other races (62% of all African-American youth who are adjudicated recidivate within three years, while only 43.4% of white youth do so, according to their 2015 report).  With the bill’s inclusion of an explicit statutory practice for prosecutorial dismissal of delinquency petitions, this could lead to fewer adjudications and lowered rates of reoffending
  • Consider also the possible impact of the newly clarified definition of “adjudication.” Juveniles can be sentenced in delinquency court based only on prior offenses or “adjudications.”  The higher the number of separate adjudications that are considered by the court at any one time, the greater the juvenile’s exposure to harsher punishment, such as placement in a short term (detention) or long term (Youth Development Center) facility. Data clearly shows that African-American youth who are placed in secure facilities are overrepresented at a rate of over 3 to 1.  This new provision, therefore, will limit the number of adjudicatory “points” that the court can consider before imposing a sentence, thereby limiting the imposition of secure custody on all youth, including African-Americans.

Final Thoughts

It is clear that once juvenile defenders, judges, and prosecutors absorb these new changes to the NC Juvenile Code, the practical impact upon our clients will be great. A juvenile defender who understands the importance of reducing further entry into the system is more likely to negotiate a term of local community service for her client than to take the case to adjudication.  Similarly, she is more likely to protect a youth from a potential probation violation by insisting that any extension of probation be made as close to the expiration date as possible.  As a result of this bill, a judge may give second thought to her reasons for detaining a child before deciding to enter the disposition order.  With these changes, a youth is more likely to feel that the system “worked,” and endeavor to steer a path away from further court involvement.  Although we cannot guarantee the law’s impact, it was intended to improve the future for the state’s youth and the society that raises them.

 

 

 

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