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*** Issues Affecting JUVENILE Sex Offenders ***
Position, Discussion and Concerns
-Humanitarian Considerations for Juveniles-
History of Juvenile Justice in America
by Robert E. Sheppard, Jr.
The First American Juvenile Court System established by Judge Ben Lindsey
United Nations, Convention on the Rights of the Child
Two nations, out of 193, have not ratified this doctrine, the United States & Somalia
Juvenile offenders command a heightened fairness in decisionmaking by those that administrate the judicial process. Too often the letter of the law rules, when the spirit of the law should rule. In the US Supreme court, in the next term 2003-2004, they will consider the case of Yarborough v. Alvarado. A case of a minor and Miranda warnings. Sherry Colb has a wonderful discussion of that topic. Effectively it questions, why shouldn't Miranda warnings apply to a minor?
Ex 1: How can one physical body, less than 18 calendar years old, be both, a juvenile, and at times, an adult?
Ex 2: When a juvenile is prosecuted as an adult, who makes the decision they are an adult?
Does the juvenile even understand the process?
Ex 3: There are times when juvenile offenders escape detection and prosecution until they are an adult, then courts are automatically prosecuting these folks as adults?
Ex 4: Juvenile Offenders and juvenile victims?
Ex 5: Borderline, Juvenile/Adult offenders, being prosecuted by victim's parents?
We will be addressing these issues, and others.
Often we are questioned, whose side do you advocate or represent? We are NOT siding with the offender, nor, do we side with side/s opposing the offender, our concerns are with the erosion of humanitarian treatment and consideration, in a broad sense. Many take exception to our comment, reminding us, have you forgotten what these offenders, juvenile or not, have done to their victims? Our response: it is not our position nor should it be society's position, to inflict anything or exact revenge on these offenders, and we are neither judge nor jury -that is what we have courts for-, neither are we the higher being that will eventually judge them someday.
The erosion of humanitarian rights of these offenders throughout our judicial system and in the offenders LifeAfter the judicial system, is causing many problems in our society.
ENTRY INTO THE JUDICIAL SYSTEM: Given that our judicial system has been considering juveniles as adults at younger and younger ages (some as young as 8 or 10 years old), it is conceivable that a juvenile could be considered for civil commitment following their sentence. This cannot be forgotten.
LifeAfter THE JUDICIAL SYSTEM: Today's legislatures have enacted laws which require ex-offenders to register with local law enforcement, and many laws include juveniles, because it is feared that they may commit another crime. Proof of a crime or criminal act is not required, and due process is nonexistent, merely the presence of an earlier conviction for a listed crime (the listed crimes are constantly growing and crime severity is not considered). Further, under this scenario these ex-offenders have been denied recognition as a person, under these registry laws (considered a piece of property to whimsically control).
Humanitarian rights are our focus, they are a sign of a maturing society and not one of the Stone Age. If we permit legislators to enact laws to circumvent humanitarian rights of these ex-offenders, how long will it be before legislation begins to erode our daily lives (we already are being monitored extensively in the public and without our knowledge), these laws which we see only applying to offenders are effectively eroding the very essence of our constitutions, both state and federal?
While "humanitarian" applies to both juveniles and adults, as to juveniles it must be stressed, because with juveniles they do lack the reasoning skills we normally attribute to adults. The teen and pre teen years are the time when parents and the law make decisions for juveniles. Traditionally we have said that when a person reaches the age of majority they then reach a point where they are expected to be able to reason right from wrong on their own, hence they then are responsible for making their own decisions and the law recognizes that, yet redefines it for juveniles.
As we focus on various issues affecting juveniles we must be constantly aware that, although physically a juvenile, the law may have treated them as an adult, causing them to be in the physical circumstances that they are in. When the law treats juveniles as adults, it seems that society sends a very confusing message to juveniles, and if we as adults cannot always make sense of it, how can we expect juveniles to.
-The Age Of Majority / The Threshold Issue-
This is generally what society considers, the age of reason, and for the most part we all think it is 18. However, under the law the age of majority has many meanings. For instance, under Nebraska law (and this is true of most all states), the term "Age of Majority" (type it in and click search) has 32 separate meanings, and sub-meanings. So the question is, what does the age of majority mean, and what is it?
One interesting point about the age of majority, which really confuses these issues, is under marriage laws. In certain parts of the United States one can consent to marriage if they are under 18, and it follows that they are permitted to consent to everything that flows from a marriage license. For all purposes they are an adult. However, should that person commit a crime, they are a juvenile and possibly may be prosecuted as an adult.
What you need to know first is, the circumstances under which it will be considered. Here we are discussing a juvenile committing a crime. So, what is the age of majority (or simply AGE) at which a person can be prosecuted as an adult for commission of a crime? Nebraska law defines a juvenile as any person under the age of 18. However, Nebraskas' juvenile court system only handles juveniles 16 and under. All juveniles (less than 18) who commit a crime, are arraigned as follows (this is the critical point for defense lawyers in a juvenile matter):
Nebraska Code: 29-1816 Arraignment of accused; when considered waived; child less than eighteen years of age; move court to waive jurisdiction to juvenile court; findings for decision; transfer to juvenile court; effect.
The accused shall be arraigned by reading to him or her the indictment or information, unless the reading is waived by the accused when the nature of the charge is made known to him or her. The accused shall then be asked whether he or she is guilty or not guilty of the offense charged. If the accused appears in person and by counsel and goes to trial before a jury regularly impaneled and sworn, he or she shall be deemed to have waived arraignment and a plea of not guilty shall be deemed to have been made.
At the time of the arraignment the court shall advise the defendant, if he or she was less than eighteen years of age at the time of the commitment of the alleged crime, that he or she may move the district court at any time not later than fifteen days before trial to waive jurisdiction in such case to the juvenile court for further proceedings under the Nebraska Juvenile Code. The court shall schedule a hearing on such motion within fifteen days. The customary rules of evidence shall not be followed at such hearing. The county attorney shall present the evidence and reasons why such case should be retained, the defendant shall present the evidence and reasons why the case should be transferred, and both sides shall consider the criteria set forth in section 43-276. After considering all the evidence and reasons presented by both parties, pursuant to section 43-276, the case shall be transferred unless a sound basis exists for retaining the case.
In deciding such motion the court shall consider, among other matters, the matters set forth in section 43-276 for consideration by the county attorney when determining the type of case to file.
The court shall set forth findings for the reason for its decision, which shall not be a final order for the purpose of enabling an appeal. If the court determines that the child should be transferred to the juvenile court, the complete file in the district court shall be transferred to the juvenile court and the indictment or information may be used in place of a petition therein. The court making a transfer shall order the minor to be taken forthwith to the juvenile court and designate where the minor shall be kept pending determination by the juvenile court.
The juvenile court shall then proceed as provided in the Nebraska Juvenile Code.
The factors each side, and the court, shall consider:
Nebraska Code: 43-276 County attorney; criminal charge, juvenile court petition, or mediation referral; determination; considerations.
Once the court decides to prosecute as an adult it means, from then on in the criminal justice system, that juvenile if convicted will be handled in adult prisons. See: 10-5-2002 Traverse City, Michigan (repeat offender).. All the considerations afforded a juvenile defendant, are lost when that juvenile is prosecuted as an adult. Will their genes mature as fast as the judges decision?
In cases coming within subdivision (1) of section 43-247, when there is concurrent jurisdiction, or subdivision (2) or (4) of section 43-247, when the juvenile is under the age of sixteen years, the county attorney shall, in making the determination whether to file a criminal charge, juvenile court petition, or mediation referral, consider:
(1) The type of treatment such juvenile would most likely be amenable to;
(2) whether there is evidence that the alleged offense included violence or was committed in an aggressive and premeditated manner;
(3) the motivation for the commission of the offense;
(4) the age of the juvenile and the ages and circumstances of any others involved in the offense;
(5) the previous history of the juvenile, including whether he or she had been convicted of any previous offenses or adjudicated in juvenile court, and, if so, whether such offenses were crimes against the person or relating to property, and other previous history of antisocial behavior, if any, including any patterns of physical violence;
(6) the sophistication and maturity of the juvenile as determined by consideration of his or her home, school activities, emotional attitude and desire to be treated as an adult, pattern of living, and whether he or she has had previous contact with law enforcement agencies and courts and the nature thereof;
(7) whether there are facilities particularly available to the juvenile court for treatment and rehabilitation of the juvenile;
(8) whether the best interests of the juvenile and the security of the public may require that the juvenile continue in secure detention or under supervision for a period extending beyond his or her minority and, if so, the available alternatives best suited to this purpose;
(9) whether the victim agrees to participate in mediation; and
(10) such other matters as the county attorney deems relevant to his or her decision.
All states have similar processes. See: 10-15-2002 Columbia So. Carolina.. We can only hope that "humanitarian decisions" prevailed during such processes. It is critically important that a defense attorney not be the type to simply want to plead a case out. It is this initial process that determines how the juvenile will be treated throughout his/her confinement. Physically they are still a juvenile, and if placed into an adult environment, will they mature fast, or will they harden fast? Which is better for society in the long term?