JUVENILE DELINQUENCY GUIDELINES - NCJFCJ DELINQUENCY GUIDELINES ... National Council of Juvenile and Family Court Judges, ... The Importance of Timeliness in the Juvenile Delinquency

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JUVENILE DELINQUENCYGUIDELINES

ImprovingCourt Practice in Juvenile

Delinquency Cases



Delinquency Cases

NATIONAL COUNCIL OF JUVENILEAND FAMILY COURT JUDGES

Reno, Nevada

Authored by the Publication Development CommitteeJUVENILE DELINQUENCY GUIDELINES Project

Honorable David E. Grossmann andHonorable Maurice Portley, Co-Chairs

Spring 2005

National Council of Juvenile and Family Court JudgesMary V. Mentaberry, Executive Director

University of Nevada, Reno

Approved by the National Council of Juvenile and Family Court JudgesOfficers and Board of Trustees

March 2005

This project was supported by Grant Nos. 2002-JR-BX-K001 and 2003-MU-MU-K002, awarded by the Officeof Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U.S. Department of Justice. Pointsof view or opinions in this document are those of the authors and do not necessarily represent the officialposition or policies of the U.S. Department of Justice.

National Council of Juvenile and Family Court Judges, University of Nevada, Reno, P.O. Box 8970, Reno,Nevada 89507. ©2005 by the National Council of Juvenile and Family Court Judges. All rights reserved.

Reproduction of this publication for educational purposes is encouraged, with attribution to “JUVENILEDELINQUENCY GUIDELINES: Improving Court Practice in Juvenile Delinquency Cases, published by theNational Council of Juvenile and Family Court Judges, Reno, Nevada.”

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Delinquency Cases



Delinquency Cases

PREFACE……………………………………………………………………………….…7

INTRODUCTION………………………………………………………………………11A. Historical Perspective………………………………………………………….…11B. Need for and Purpose of the JUVENILE DELINQUENCY GUIDELINES………14C. Scope, Structure, and Use of the JUVENILE DELINQUENCY GUIDELINES …15

Endnotes……………………………………………………………………………17

CHAPTER I: FOUNDATIONS FOR A JUVENILE DELINQUENCY COURT OFEXCELLENCE……………………………………………………………………………19

A. The Continuing Need for the Juvenile Delinquency Court……………………21B. The Goals of a Juvenile Delinquency Court of Excellence……………………22C. Key Principles of a Juvenile Delinquency Court of Excellence………………23D. Roles and Responsibilities within the Juvenile Delinquency Court of

Excellence…………………………………………………………………………28Endnotes……………………………………………………………………………33

CHAPTER II: GENERAL ISSUES RELATING TO THE JUVENILEDELINQUENCY COURT PROCESS…………………………………………………35

A. Jurisdiction and Authority…………………………………………………………37B. Confidentiality of Hearings, Documents, and Records…………………………40C. The Importance of Timeliness in the Juvenile Delinquency Court……………43D. Case Docketing and Case Management…………………………………………44E. Using Screening and Assessment Tools to Help Make Key Decisions………46F. Disproportionate Minority Contact………………………………………………49G. Dispute Resolution Alternatives…………………………………………………50H. Interstate Compact for Juveniles (ICJ) and Interstate Compact for the

Placement of Children (ICPC)……………………………………………………52I. Title IV-E in the Juvenile Delinquency Court……………………………………53J. Specialty Dockets…………………………………………………………………58

Endnotes……………………………………………………………………………58

CHAPTER III: INITIATING THE JUVENILE DELINQUENCY COURT PROCESS…63A. The Importance of Consistency and Timeliness in Decision Making…………65B. Legal Sufficiency……………………………………………………………………66C. Process and Options for Diverting Affidavits and Petitions from the Formal

Delinquency System………………………………………………………………67D. Engaging the Formal Delinquency System………………………………………73E. Alternatives to Secure Detention, Managing the Detention Census, and

Restrictions on Holding Youth in Adult Jails……………………………………81Endnotes……………………………………………………………………………85

CHAPTER IV: THE DETENTION OR INITIAL HEARING…………………………87A. Purpose of the Detention or Initial Hearing……………………………………89B. Timing of the Detention or Initial Hearing………………………………………90C. Legal Representation at the Detention or Initial Hearing………………………90D. Conducting the Detention or Initial Hearing……………………………………91E. Questions That Must Be Answered………………………………………………96F. Written Findings and Orders………………………………………………………96

Endnotes……………………………………………………………………………97

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CHAPTER V: HEARINGS ON MOTIONS TO WAIVE JUVENILE DELINQUENCYCOURT JURISDICTION AND TRANSFER JURISDICTION TO CRIMINAL COURT…99

A. Purpose of the Hearing Process on Motions to Waive Juvenile Delinquency Court Jurisdiction and Transfer Jurisdiction to Criminal Court………………102

B. Timing of the Hearing Process on Motions to Waive Juvenile Delinquency Court Jurisdiction and Transfer Jurisdiction to Criminal Court………………103

C. Legal Representation……………………………………………………………105D. Conducting the Probable Cause Phase on Motions to Waive Juvenile

Delinquency Court Jurisdiction and Transfer Jurisdiction to Criminal Court…105E. Questions That Must Be Answered During the Probable Cause Phase……106F. Additional Information Needs, Questions, and Written Findings and Orders

Related to the Probable Cause Phase…………………………………………107G. The Evaluative Process for the Juvenile Delinquency Court to Decide

Whether to Retain Jurisdiction or Waive Jurisdiction and Transfer toCriminal Court on a Discretionary Waiver……………………………………110

H. Conducting the Second Phase of the Process to Decide Whether to Retain Juvenile Delinquency Court Jurisdiction or Waive Jurisdiction and Transferto Criminal Court..………………………………………………………………112

I. Questions That Must Be Answered During the Retain or Waive Phase……114J. Written Findings and Orders Related to the Second Phase of the Process…114

Endnotes……………………………………………………………………………116

CHAPTER VI: THE TRIAL/ADJUDICATION HEARING…………………………119A. Purpose of the Trial/Adjudication Hearing……………………………………121B. Timing of the Trial/Adjudication Hearing………………………………………121C. Legal Representation……………………………………………………………122D. Plea Agreements…………………………………………………………………122E. Conducting the Trial/Adjudication Hearing……………………………………123F. Questions That Must Be Answered ……………………………………………126G. Written Findings and Orders ……………………………………………………127

Endnotes …………………………………………………………………………128

CHAPTER VII: THE DISPOSITION HEARING………………………………………131A. Purpose of the Hearing …………………………………………………………135B. Timing of the Hearing……………………………………………………………137C. Legal Representation ……………………………………………………………137D. The Pre-Disposition Investigation ………………………………………………137E. Disposition Control Over the Parents of Adjudicated Youth…………………141F. Conducting the Disposition Hearing……………………………………………141G. Questions That Must Be Answered ……………………………………………142H. Determining Whether Progress Hearings or Progress Reports Will Be Part of

the Disposition Order ……………………………………………………………144I. Written Findings and Orders ……………………………………………………144J. Final Appealable Order …………………………………………………………145K. Disposition Interventions Every Juvenile Delinquency Court Should Have

Available …………………………………………………………………………147L. Research on the Impact of Juvenile Delinquency Court Disposition

Interventions………………………………………………………………………153Endnotes …………………………………………………………………………154

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CHAPTER VIII: THE APPEALS PROCESS …………………………………………157A. The Appellate Court ……………………………………………………………159B. Why Timeliness Is Important……………………………………………………159C. Orders That Can Be Appealed …………………………………………………160D. Interlocutory Appeals and Writs…………………………………………………160E. Issues Raised on Appeal…………………………………………………………161F. Responsibilities of the Juvenile Delinquency Court Regarding the Appeals

Process……………………………………………………………………………161G. Responsibilities of Counsel for Youth Regarding the Appeals Process………161H. Stays of Disposition………………………………………………………………162I. The Appellate Court Process and Recommended Timeframes………………162J. Conducting the Appellate Court Hearing………………………………………163K. Proposed Appellate Court Initiatives……………………………………………163

Endnotes …………………………………………………………………………164

CHAPTER IX: POST- DISPOSITION REVIEW OF DELINQUENT YOUTHWHO REMAIN IN THE HOME WITH COURT ORDERED SERVICES ……………165

A. Purpose of Post-Disposition Review of Youth Who Remain in The Homewith Court Ordered Services…………………………………………………167

B. Selecting the Method of Post-Disposition Review ……………………………167C. Timing of Post-Disposition Review ……………………………………………168D. Legal Representation During Post-Disposition Review………………………169E. Procedures for Progress Reports as a Method of Post-Disposition Review…169F. Procedures for Progress Review Conferences, Case Staffings, and Dispute

Resolution Alternatives as Methods of Post-Disposition Review……………170G. Conducting Review Hearings……………………………………………………170H. Questions That Must Be Answered……………………………………………171I. Written Findings and Orders……………………………………………………172

Endnotes…………………………………………………………………………173

CHAPTER X: POST-DISPOSITION REVIEW OF DELINQUENT YOUTHPLACED OUT OF THE HOME BY JUVENILE DELINQUENCY COURT ORDER...175

A. Components of Post-Disposition Review of Delinquent Youth Placed by Juvenile Delinquency Court Order ……………………………………………178

B. Intensity of Review and Level of Risk to Reoffend……………………………179C. Purpose of Post-Disposition Review of Youth Placed Out of the Home by

Juvenile Delinquency Court Order ……………………………………………180D. Legal Representation During Post-Disposition Review ………………………181E. Selecting the Method of Post-Disposition Review ……………………………181F. Timing of Post-Disposition Review of Youth in Placement …………………182G. Procedures for Progress Reports as a Method of Post-Disposition Review…183H. Procedures for Progress Conferences, Case Staffings, and Dispute

Resolution Alternatives as a Method of Post-Disposition Review………………184I. Conducting Review Hearings……………………………………………………184J. Questions That Must Be Answered ……………………………………………185K. Written Findings and Orders ……………………………………………………186L. The Reentry Process ……………………………………………………………186

Endnotes …………………………………………………………………………191

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CHAPTER XI: PROBATION AND PAROLE VIOLATIONS…………………………193A. Determining Whether to File a Probation or Parole Violation or Request a

Review Hearing …………………………………………………………………195B. Legal Representation ……………………………………………………………196C. Conducting Hearings on Probation or Parole Violations ……………………196D. Questions That Must Be Answered ……………………………………………197E. Findings and Orders ……………………………………………………………198

Endnotes……………………………………………………………………………198

CHAPTER XII: THE JOURNEY TO BECOMING A JUVENILE DELINQUENCY COURT OF EXCELLENCE……………………………………………………………201

A. Judicial Leadership and Establishing the Collaborative EnvironmentNecessary for a Juvenile Delinquency Court of Excellence………………………203B. The DELINQUENCY GUIDELINES’ Timeline Goals for Formal Juvenile

Delinquency Court Hearings ……………………………………………………206C. Assessing Strengths and Opportunities for Improvement ……………………210D. Caseloads and Workloads ………………………………………………………210E. Management Information System Design and Reports ………………………212F. Finding the Resources……………………………………………………………215G. Final Comments …………………………………………………………………224

Endnotes……………………………………………………………………………225

GLOSSARY OF TERMS…………………………………………………………………227

APPENDICES……………………………………………………………………………235

A. National Organizations and ResourcesB. Key Supreme Court Cases Affecting the Rights of Juvenile OffendersC. State by State Age of Majority, Minority, and Retain JurisdictionD. “Script” of Questions To Ensure Due Process Rights E. Sample Juvenile Delinquency Court Disposition Hearing Findings and OrdersF. Sample Forms for Parents to Demand Education TestingG. Youth Courts/Teen CourtsH. Research on Juvenile Delinquency Disposition InterventionsI. Summary of Statutes Regarding Disposition Control Over the Parents of

Delinquent YouthJ. Title IV-E in the Juvenile Delinquency SystemK. Permanency Hearings for Delinquent Youth Receiving Title IV-E Funding

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PUBLICATION DEVELOPMENT COMMITTEE MEMBERS

Honorable David E. GrossmannPast President, NCJFCJDevelopment Committee Co-ChairHamilton County Juvenile CourtCincinnati, Ohio

Honorable Maurice PortleyDevelopment Committee Co-ChairArizona Court of AppealsPhoenix, Arizona

David Altschuler, Ph.D.John Hopkins University Institute for

Policy StudiesBaltimore, Maryland

Shay BilchikChild Welfare League of AmericaWashington, D.C.

Craig BowmanNational Youth Advocacy CoalitionWashington, D.C.

Kirby BurgessClark County Department of Juvenile

Justice ServicesLas Vegas, Nevada

Betty ChemersNational Institute of JusticeWashington, D.C.

Brian ChodrowEnforcement and Justice Services

DivisionNational Highway Traffic Safety

AdministrationWashington, D.C.

Bebs ChorakStreet Law, Inc.Silver Spring, Maryland

Emily CookeChildren's BureauU.S. Deptartment of Health and Human

ServicesWashington, D.C.

Karen L. DanielYouth Service AmericaWashington, D.C.

Jose DimasNational Center for State CourtsArlington, Virginia

Leonard DixonBureau of Juvenile JusticeFamily Independence AgencyLansing, Michigan

Honorable Leonard P. EdwardsPast President, NCJFCJSuperior Court of CaliforniaCounty of Santa ClaraSan Jose, California

John D. Ferry, Jr.ConsultantOkemos, Michigan

J. Robert FloresOJJDP, U.S. Department of JusticeWashington, D.C.

Kathi GrassoOJJDP, U.S. Department of JusticeWashington, D.C.

Honorable Ernestine S. GrayPast President, NCJFCJOrleans Parish Juvenile CourtNew Orleans, Louisiana

Honorable Pamela GreenwoodUtah Court of AppealsSalt Lake City, Utah

Caren HarpNational Juvenile Justice Prosecution CenterAmerican Prosecutor's Research InstituteAlexandria, Virginia

Honorable Curtis HeastonCircuit Court of Cook CountyChicago, Illinois

Bridgett E. JonesCriminal Justice Policy Research InstitutePortland State UniversityPortland, Oregon

Honorable Dale KochVice President, NCJFCJMultnomah County CourthousePortland, Oregon

Ernest J. Mazorol, IIIOregon Judicial DepartmentBend, Oregon

Honorable Sharon P. McCullyPresident, NCJFCJThird District Juvenile CourtSalt Lake City, Utah

Kevin MorrisonNational Juvenile Justice Prosecution CenterAmerican Prosecutor's Research InstituteAlexandria, Virginia

Honorable Mary J. MullarkeySupreme Court of ColoradoDenver, Colorado

Jerry NeedleInternational Association of Chiefs of PoliceAlexandria, Virginia

James W. PayneDepartment of Child ServicesIndianapolis, Indiana

Scott PetersonOJJDP, U.S. Department of JusticeWashington, D.C.

Patricia PuritzNational Juvenile Defender CenterWashington, D.C.

Honorable James RayImmediate Past President, NCJFCJLucas County Juvenile CourtToledo, Ohio

Honorable W. Don ReaderPast President, NCJFCJNorth Canton, Ohio

James RielandCourt of Common PleasPittsburgh, Pennsylvania

James RichardsonVision for Children at RiskSt. Louis, Missouri

Nancy RollinsDivision for Children, Youth & FamiliesNew Hampshire Department of Health and

Human ServicesConcord, New Hampshire

David Roush, Ph.D.National Partnership for Juvenile ServicesSchool of Criminal JusticeMichigan State UniversityEast Lansing, Michigan

Robert G. SchwartzJuvenile Law CenterPhiladelphia, Pennsylvania

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Barbara SeibelConsultant/AuthorSeibel ConsultantsCincinnati, Ohio

Marvin VentrellNational Association of Counsel for

ChildrenDenver, Colorado

Delores Heredia WardNational Juvenile Justice Prosecution CenterAmerican Prosecutor's Research InstituteAlexandria, Virginia

Carl WicklundAmerican Probation and Parole AssociationLexington, Kentucky

CONSULTANTS AND ADVISORS

Honorable Michael AndereggMarquette County Probate CourtMarquette, Michigan

David Arredondo, M.D.EMQ Children & Family ServicesCampbell, California

Honorable Patricia Martin BishopJuvenile Court, Child Protection

DivisionChicago, Illinois

Honorable Stephen BogaczQueens County Family CourtJamaica, New York

Marion Boss, C.E.D., Ph.D.Department of Criminal JusticeUniversity of ToledoToledo, Ohio

Samantha S. Clinkinbeard1

University of Nevada, RenoReno, Nevada

Honorable Guy P. DePhillipsFamily Court of the State of New YorkJamaica, New York

Honorable Patricia G. EscherSuperior Court of the State of ArizonaTuscon, Arizona

David FloresUniversity of Nevada, RenoReno, Nevada

Julian Ford, Ph.D.Department of PsychiatryUniversity of Connecticut Health CenterFarmington, Connecticut

Robert P. Franks, Ph.D.National Center for Child Traumatic StressDuke UniversityDurham, North Carolina

Honorable Paul W. GarfinkelFamily Court, 9th Judicial CircuitCharleston, South Carolina

Silvia B. Golombek, Ph.D.Youth Service AmericaGlobal Youth Service Day SecretariatWashington, D.C.

Thomas Grisso, Ph.D.Law-Psychiatry ProgramUniversity of MassachusettsNorth Worcester, Massachusetts

Honorable John W. LarsonMontana District CourtMissoula, Montana

Joyce A. Letner1


Catherine LoweConsultant/Juvenile Sanctions CenterReno, Nevada

Dennis M. MaloneyBalanced and Restorative Justice ProjectBend, Oregon

Colleen I. Murray, Ph.D., C.T.1


Jim T. Richardson, Ph.D., J.D.1

Grant Sawyer Center for Justice StudiesUniversity of Nevada, RenoReno, Nevada

Honorable Stephen M. RubinPresident Elect, NCJFCJPima County Juvenile CourtTucson, Arizona

Honorable Lee F. SatterfieldThe Family Court of the Superior Court

of the District of ColumbiaWashington, D.C.

Yuko ShinozakiUniversity of Nevada, RenoReno, Nevada

Julie A. Singer1


Rebecca M. Thomas1


David WexlerCollege of LawUniversity of ArizonaTucson, Arizona

Jenifer Wood, Ph.D.National Center for Child Traumatic StressLos Angeles, California

1Members of the University of Nevada, Reno Psychosocial Review Committee and in affiliation with thePh.D. Program in Social Psychology.

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RENONational Council of Juvenileand Family Court Judges

Mary Volpa MentaberryExecutive Director

Christine L. Bailey, M.A., J.D.DirectorPermanency Planning for Children

DepartmentJoey Binard

Senior Program Manager, Technical Assistance

Juvenile and Family Law DepartmentJanine Cox

Policy AnalystPermanency Planning for Children

DepartmentCheryl M. Davidek

Director Administration

Shirley A. Dobbin, Ph.D.Assistant Director Permanency Planning for Children

DepartmentDavid Gamble

DirectorJuvenile Sanctions CenterJuvenile and Family Law Department

Sophia I. Gatowski, Ph.D.Assistant DirectorPermanency Planning for Children

Department

Michael JamisonProject AttorneyJuvenile and Family Law Department

Shawn MarshJDG Program ManagerPermanency Planning for Children

DepartmentCrystal Parrish

Communications SpecialistPermanency Planning for Children

DepartmentLynn Terras

Administrative ManagerPermanency Planning for Children

DepartmentM. James Toner

Dean (Retired)National College of Juvenile and Family

Justice

PITTSBURGHNational Center for JuvenileJustice

E. Hunter Hurst, IIIDirector

Gregory HalembaDirectorApplied Research

Howard N. Snyder, Ph.D.DirectorSystems Research

PUBLICATION STAFF

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ACKNOWLEDGEMENTS

As early as 1996, the National Council ofJuvenile and Family Court Judges (NCJFCJ)recognized the need to develop a document toguide court improvement in handling ofjuvenile deliquency cases. Although it was clearthat improvement was necessary, courtjurisdictions across the nation had noguidebook against which to measure or assesstheir daily practice. A document which wouldoutline best practices and which could be usedto help courts identify problem areas, to planfor change, and to implement improvement wascritically needed.

In 2001, the National Council received fundingfrom the Office of Juvenile Justice andDelinquency Prevention, Office of JusticePrograms, U.S. Department of Justice to begindrafting this document. A DevelopmentCommittee of national experts was assembledalong with a primary author – Barbara Seibel –to begin this work. In selecting members of theCommittee, we were committed to includingpractitioners as well as policy-focusedprofessionals. Academics and researchers werealso included on the Committee. Through itsdiversity, and throughout three years of

discussion, debate, and hard work, thisCommittee was able to generate a documentwhich will serve as a tool for jurisdictionsnationwide as they seek to improve dailypractice and to better serve the communitiesand youth on their watch.

Our deepest appreciation to our Committee Co-Chairs Hon. David Grossmann and Hon.Maurice Portley; our funder; Robert Flores,Administrator, Office of Juvenile Justice andDelinquency Prevention; the primary author,Barbara Seibel; as well as to the members of theCommitttee, peer reviewers, NCJFCJmembership and staff who reviewed and editedthis document. They gave generously of theirtime and energy to ensure this document’saccuracy, timeliness, and applicability tojurisictions nationwide.

This document is not a reflection of the currentstate of juvenile justice today, but of whatjuvenile justice practice can be in the future. Forthe Committee’s foresight and dedication to thismission, we offer our deepest thanks.-- Mary Mentaberry, Executive Director NationalCouncil of Juvenile and Family Court Judges

contributed to its development.2

The second step in the change effort will bethe broad dissemination of the DELINQUENCYGUIDELINES and the implementation of theDELINQUENCY GUIDELINES recommendationsthrough designated Model Courts. In addition, theNCJFCJ will supplement the DELINQUENCYGUIDELINES with training and technicalassistance, research and evaluation, andadditional publications and tools for practice andpolicy development. Through these efforts,juvenile delinquency courts across the countrywill be assisted in assessing current practice,identifying areas in need of improvement, andplanning and working toward positive change.The result will be a renewed focus ondelinquency system improvement, includingimproved court handling of juvenile delinquencycases, innovative community-based collaborativeresponses to juvenile crime and delinquency, andexpansion of professional networks interested inimproving governmental responses to at-riskyouth.

A. HISTORICAL PERSPECTIVE3

As we reach for system improvement, it ishelpful to review the past practices of our over100-year-old United States juvenile court system.Prior to the establishment of its first juveniledelinquency court, America followed legaltraditions inherited from England. Thesetraditions categorized people as “infants” or“adults” and allowed three options for childrenand youth who broke the law:

• Any child below age seven was presumed tobe incapable of criminal intent andconclusively exempt from prosecution andpunishment.

• Children ages seven through 14 couldinvoke the “infancy defense” and try toconvince the court of their incapacity forcriminal intent. The prosecutor wouldcounter such a defense to show criminalcapability, and if successful, the child wouldface criminal penalties, includingimprisonment or death.

• Children over the age of 14 were alwaysprosecuted and punished as if they wereadult criminals.

In the 1800s, believing that animals weretreated better than children, members of theSociety for the Prevention of Cruelty to Animalsstarted a movement for prevention of cruelty tochildren, a movement that helped establishseparate courts for juveniles and adults. The firstjuvenile court in the United States, authorized bythe Illinois legislature, began operation in 1899 in

For decades, the National Council of Juvenileand Family Court Judges (NCJFCJ) has providedjudicial training and juvenile justice technicalassistance. NCJFCJ members understand that aneffective juvenile justice system requires a highlyskilled juvenile and family court judiciary andsystem professionals, effective and efficient courtprocesses, and adequate resources.

Since 1990, the Permanency Planning forChildren Department (PPCD) of the NCJFCJ, incollaboration with the Office of Juvenile Justiceand Delinquency Prevention (OJJDP), juvenilecourt judges, juvenile court administrators, andchild welfare experts across the country, led theChild Victims Act Model Courts Project. Believingthat courts and agencies needed to undergo afundamental paradigm shift to change the waythey worked individually and in concert, thisproject designed an innovative and practice-based training and technical assistance model.This model for change, supported by TheAdoption Assistance and Child Welfare Act(1980), Pub. L. No. 96-272, resulted in nationalsystemic improvements in the way juvenile andfamily courts handle abuse and neglect cases.Two critical components of this change processwere the publication of the RESOURCEGUIDELINES: Improving Court Practice in ChildAbuse and Neglect Cases, and implementing therecommendations and other best practicesthrough “Model Courts.” Lead judges of juvenileand family courts across the nation requested thattheir courts be selected as advocates and modelsfor system change, committing to:1

• Adhere to, and be guided by, the keyprinciples of the RESOURCE GUIDELINES;

• Analyze practice and results of their existingcourt processes and identify improvementopportunities;

• Implement process improvement, measureresults, and share their experiences bothwith other Model Courts and with alljuvenile courts; and

• Commit to and promote systems changeboth within their own jurisdiction, and at thestate, regional, and national levels.

Using this successful training and technicalassistance model, the NCJFCJ hopes to achieveequally significant improvements in the way thatthe juvenile courts across the country and in U.S.territories handle their delinquency jurisdictions.

The first step toward change is the publicationof this book – JUVENILE DELINQUENCYGUIDELINES: Improving Court Practice inJuvenile Delinquency Cases – for juveniledelinquency court judges and juveniledelinquency system professionals. Juvenile justicesystem practitioners from across the country have

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INTRODUCTION

away from part of the parens patriae doctrine.These decisions responded to concerns that therights of youth were being trampled, and thatparens patriae and unbridled judicial discretion,however benevolently motivated, were arbitraryand unfair. These decisions were:6

• Kent v. United States (1966) established thattransfer to criminal court must consider dueprocess and fair play, and that the youthmust be represented by an attorney whomust have access to the youth’s juvenilerecords.

• In re Gault (1967) established that juvenileshad the constitutional right to notice of theproceedings, the right to counsel, the rightto confront and cross-examine accusers, theright against self-incrimination (i.e., the rightto remain silent), and the right to appeal adecision of the juvenile delinquency court.Aggregately, these rights are referred to asdue process rights.

• In re Winship (1970) changed the burden ofproof from preponderance of evidence toproof beyond a reasonable doubt.

In contrast to this shift, however, McKeiver v.Pennsylvania (1971) moved in the oppositedirection when the U.S. Supreme Courtdetermined that in juvenile proceedings there wasno right to trial by jury.

During this period, juvenile delinquency courtpurpose clauses began to use words such as“punishment” and “accountability,” and juveniledelinquency court process focused more on thecriminal nature of delinquent acts and adoptedessential due process rights accorded to criminalcourt defendants. This shift caused mountingconcern that youth who had committed actswhich would not be considered criminal ifcommitted by adults – referred to as statusoffenders – should be protected frominappropriate juvenile delinquency courtresponses. The Juvenile Justice and DelinquencyPrevention Act of 1974 (Act) was passed for thispurpose and limited the placement of statusoffenders in secure detention or correctionalfacilities. There was also concern that alleged andadjudicated delinquents were being harmed bycontact with alleged and convicted adult criminalsin adult jails, lockups, and other institutions.Consequently, the Juvenile Justice andDelinquency Prevention Act required thatjuvenile offenders be removed from adult jailsand separated from adults in institutional settings.Subsequent amendments to the Act include:

• In 1980, Congress amended the Act to allowthe secure detention of status offenders whohad violated valid court orders.

Cook County (Chicago), Illinois. The legislationthat created this court included a comprehensiveset of definitions and rules “to regulate thetreatment and control of dependent, neglected,and delinquent children.”4 The court was chargedwith promoting the welfare of children in trouble,to avoid the stigma of crime and criminality, andto “as far as practical, treat children not ascriminals but as children in need of aid,encouragement and guidance.”5 The laws were tobe “liberally construed,” to accomplish the goalthat the “care, custody, and discipline” of thesechildren “shall approximate as nearly as may bethat which should be given by parents.”

By 1925, following Illinois’ lead, all but twostates had established juvenile courts based onthe British doctrine of parens patriae (the state asparent). This doctrine gave government the rightto intervene in the lives of children, with orwithout the consent of parents. This approachincluded the concept of individualized justice –not every child in every situation should receiveexactly the same response. The focus was on theoffender and not the offense, on rehabilitationinstead of punishment. The court was responsiblefor balancing the needs of children, their families,and their communities. This approach producedcourt processes such as:

• The juvenile delinquency court controllingits own intake, as opposed to the criminalcourt, where grand juries and prosecutorscontrolled intake;

• The option of handling cases informally asopposed to formally;

• Less formal hearing procedures;• Confidential proceedings;• The absence of attorneys except in trials or

the most serious cases; and• Dispositions based on perceived remedial

need instead of automatic dispositionsdetermined by the offense.

The concept of individualized justice hasremained the hallmark of the juvenile justicesystem since inception and has clearlydifferentiated it from the criminal justice system.Although the juvenile delinquency courtconsiders the facts of the offense whendetermining the proper disposition of a juveniledelinquency case, the juvenile delinquency courtis not driven by the offense, but instead, by thespecific needs and circumstances of theindividual youth. Thus the original design of thejuvenile delinquency court optimized its chancesof providing community safety by imposingconsequences that have the best chance ofproducing change in each youth.

Three U.S. Supreme Court decisions causedthe pendulum to shift in the 1960s and 1970s

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INTRODUCTION

• Passing laws requiring automatic waivers tocriminal court for specified offenses - Priorto this time, laws specified that only certainoffenses were eligible for transfer to criminalcourt. Laws were changed to specify thatcertain offenses must be transferred tocriminal court.

• Lowering the age of transfer to criminalcourt - Prior to this time, laws generally didnot permit the transfer of youth to criminalcourt if they were under the age of 14 to 16.By 1995, 11 states had lowered the age oftransfer.9

• Removing or reducing discretion fromjuvenile delinquency court judges overwhether to keep youth under the jurisdictionof the juvenile delinquency court or to waiveyouth to the criminal court - Not only werejudges required to waive specified offenses,but also laws in some states gaveprosecutors the discretion of whether to filean offense in juvenile delinquency court orcriminal court. There was an increase in thenumber of states that required statutoryexclusion or legislative transfer, whichmandated certain offenses be filed directlyin criminal court, removing specified youthfrom the original jurisdiction of the juveniledelinquency court. There was also anincrease in the number of offenses includedin this category.

The second significant change in juveniledelinquency court practice occurred in the area ofconfidentiality protections. Prior to the 1990s,juvenile delinquency court hearings andinformation were generally off-limits to the pressand the public. Rarely was a juvenile offender’sname or picture printed in the newspaper. Non-parties could not generally attend juveniledelinquency court hearings unless it wasdemonstrated that the public’s right to knowoutweighed the youth’s right to confidentiality.This perspective changed as many legislaturesremoved the confidentiality restrictions anddetermined that the community’s right to knowsuperceded the protection of the youth fromstigma. Unless it was shown that opening theproceeding would significantly harm the youth,the juvenile process was opened to the public inmany jurisdictions.

The third significant change in juveniledelinquency court practice resulted in routineinvolvement of the prosecutor in the juveniledelinquency court. Prior to In re Gault,prosecutors seldom appeared on juveniledelinquency cases except, on occasion, to helpthe probation department address legal matters.Over the past 30 years, more prosecutors haveparticipated in juvenile delinquency court

• In 1984, Congress amended the Act todefine valid court order and to refine otherconcepts.

• In 1992, Congress amended the Act to addprograms to address gender bias,prevention, treatment, graduated sanctions,and risk assessments/needs assessments.

• In 1998, Congress amended the Act toaddress disproportionate minorityconfinement. Throughout the history of thejuvenile delinquency court, juvenileoffenders have represented all ethnicbackgrounds and all socioeconomic levels.However, the juvenile delinquency courthas been challenged throughout its yearswith the dynamic of disproportionateminority involvement in the juvenile justicesystem.

• In 2002, Congress continued the four coreelements of the previous Acts andamendments – specifically, deinstitutional-ization of status offenders, separation ofjuveniles and adults in secure institutions,removal of juveniles from adult jails andlockups, and reduction of disproportionateminority contact where it exists; and addedemphasis on the link between child abuseand neglect and delinquency, with a newrequirement that child welfare recordsshould be available to the juveniledelinquency court system so that the youth’sbest interest would be considered when thejuvenile delinquency court made decisions.

The next pendulum swing began in the mid-1980s in response to a rapid escalation in thevolume and seriousness of youth crime. Therewas a growing public perception that juveniledelinquency courts were “soft” in their responsesto serious crime. From 1988 to 1994, juvenilearrests for violent crimes increased 62%.7 Inresponse to this escalation, legislaturessignificantly modified juvenile delinquency courtprocesses in four areas. These areas included: 1)transferring youth to criminal court, 2) relaxingconfidentiality protections, 3) the emergence ofan increased role for the prosecutor in juveniledelinquency court, and 4) “toughening” juveniledelinquency court sanctions.

The first significant change in juveniledelinquency court practice addressed youth whohad committed serious crimes and changed statestatutes regarding who should be handled injuvenile delinquency court and who should betransferred (or waived) to the criminal court.Between 1992 and 1995, 40 states and the Districtof Columbia changed their laws to restrictjuvenile delinquency court jurisdiction in themost serious cases in three ways.8

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INTRODUCTION

increasingly complex family situations, singleparent homes, decreased supervision of children,parents who are less available to their children,substance abuse in youth and families, gang-related activity, and increasing incidence ofserious mental health issues in younger youth –have created significant challenges for thejuvenile delinquency court. Juvenile delinquencycourt judges are on the front-line, dealing withsome of society’s most difficult problems.12

These dynamics have made it difficult forjuvenile delinquency courts to maintain balancebetween meeting the needs of juvenile offendersand community safety. They have resulted injuvenile justice system challenges such as anincreased percentage of mental illness inincarcerated youth, detention rates that are thehighest in the world, disproportionate minorityrepresentation throughout the system, and a lackof uniformity in juvenile delinquency courtpractice and decision-making from jurisdiction tojurisdiction. Although pieces of the juveniledelinquency court process have been modified,there has been no major examination orcomprehensive overhaul in decades.

Many challenges have rendered past practicesineffective and require new and innovativeapproaches. Juvenile delinquency court statistics,OJJDP research, juvenile justice experts, juveniledelinquency court judges, and juvenile justicesystem staff from many jurisdictions consistentlyexpress concern about the effectiveness of thejuvenile justice system to address the followingchallenges:

• Increasing numbers of youth are failing anddropping out of school with educationaldeficits serving as the primary reason forentry into the juvenile justice system.

• Increasing numbers of youth have multipleneeds including serious histories of trauma,mental health, and behavioral problems;most of these youth experiencedisconnected, uncoordinated servicesystems – child welfare, special education,mental health systems, and juvenile justiceagencies – that have minimalcommunication or coordination regardingservices to these youth.

• Because of limited resources, some agencieshave become involved in “competition notto serve” these challenging youth and are“dumping” their most difficult clients intothe juvenile justice system.

• Many youth are involved in repeated butunconnected contacts with law enforcementwith a general lack of a continuum ofgraduated sanctions and available serviceoptions.

according to their traditional role as the advocatefor the community by reviewing and filingpetitions, appearing at all hearings, and takingpositions in each delinquency case at every stageof the proceedings. This development has led tothe juvenile delinquency court resembling theadult criminal process in several respects,specifically the growth of the adversarial processin the juvenile delinquency court and the practicein many jurisdictions of extensive use of pleanegotiating.

The fourth change in juvenile delinquencycourt practice toughened the sanctions availableto juvenile delinquency courts. Examples of thischange include lowering the age for youth to beheld in secure detention, lowering the age foryouth to be sent to secure correctionalinstitutions, and the option of blendedsentencing.10 In blended sentencing a judge mayimpose both a juvenile and criminal sentence. Ifthe juvenile successfully completes the juvenilesentence, the criminal sentence may be set asideor the juvenile may be ordered to serve asentence in a juvenile facility until reaching theage of majority and then be transferred to acriminal justice system facility to complete thesentence.

At the same time legislatures were tougheningtheir response to juvenile crime, delinquencysystems also began exploring the model ofBalanced and Restorative Justice (BARJ). Themodel gives equal consideration to 1) protectingthe community, 2) holding offenders accountablefor their acts, and 3) helping offenders to developthe skills and attitudes they need to succeed inbecoming law-abiding and productive membersof society.11

Ten years after this decade of tougheningresponses to juvenile crime, the U.S. SupremeCourt moved in the opposite direction when itoverturned the previous decision of Stanford v.Kentucky (1989) that execution of a person whowas 16 or 17 years of age at the time of his or heroffense did not offend the Eighth Amendment’sprohibition against “cruel and unusualpunishment.” In Roper v. Simmons (2005) the U.S.Supreme Court determined that the nationalconsensus had changed, that the death penaltywas a disproportionate punishment for juveniles,and that youth under the age of 18 arecategorically excluded from capital punishment.Whether this is the beginning of another shift, oran anomaly such as McKeiver v. Pennsylvania(1971), remains to be determined.

B. NEED FOR AND PURPOSE OF THEJUVENILE DELINQUENCY GUIDELINES

Societal trends carried from the 1990s into thenew millennium – a mobile population,

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INTRODUCTION

communities they serve. The results of theimplementation of the DELINQUENCYGUIDELINES recommendations, and otherinnovations developed and implemented throughthe DELINQUENCY GUIDELINES Model Courts,will be measured and tracked to determine theireffectiveness.

C. SCOPE, STRUCTURE AND USE OF THEJUVENILE DELINQUENCY GUIDELINES

The scope of the JUVENILE DELINQUENCYGUIDELINES: Improving Court Practice inJuvenile Delinquency Cases begins at the pointwhen an affidavit alleging a violation of the lawis brought to the juvenile delinquency court. Itends upon completion of all delinquencyhearings on a petition, including post-dispositionreview hearings.

The DELINQUENCY GUIDELINES distinguishesbetween illegal behaviors committed by youth(status offenses and delinquency), as opposed toillegal behaviors committed against youth (abuse,neglect, and dependency). A status offense isdefined as those offenses that would not beillegal if committed by an adult, for example,truancy, runaway, incorrigibility, and alcohol ortobacco possession or use. The DELINQUENCYGUIDELINES speaks only to the juveniledelinquency court processes involved with youthwho are alleged to have committed illegalbehaviors. The DELINQUENCY GUIDELINESrecognizes that in some states status offenders areunder the jurisdiction of the abuse and neglectjurisdiction of the juvenile court as opposed tothe delinquency jurisdiction. The DELINQUENCYGUIDELINES does not recommend against thepractice of status offenders being under the abuseand neglect jurisdiction. The DELINQUENCYGUIDELINES does recommend, however, thatonly law-violating juveniles should be underthe delinquency jurisdiction of the juvenilecourt.

All juvenile delinquency courts havejurisdiction over misdemeanor and felony cases,except those felony cases specified by statestatute as prosecutor discretion to file in juvenileor criminal court, or those felonies specified asdirect filings in criminal court. Most juveniledelinquency courts have jurisdiction over statusoffenses. Many juvenile delinquency courts havejurisdiction over juvenile traffic offenses. TheDELINQUENCY GUIDELINES recommendsthat juvenile delinquency courts useinformal systems with status offendersunless their behaviors become chronic.

The DELINQUENCY GUIDELINES begins inChapter I with the reasons the juveniledelinquency court continues to be a necessaryinstitution and describes the goals and key

• The rate of arrests for serious crimescommitted by females is rising in contrast tothe overall decrease in the commission ofserious crimes, and traditional services arenot effective with this population.

• The rate of arrests for serious crimescommitted by younger youth is rising incontrast to the overall decrease in thecommission of serious crimes, with deficitsin the services required to address theirneeds.

The leadership of the National Council ofJuvenile and Family Court Judges, along withnational experts in probation, youth corrections,prosecution, law enforcement, and defense agreethat the juvenile delinquency court system needsguidelines that will help them improve practice.They need guidelines that will address both theenduring problems of delinquency and emergingchallenges. Frustration with the ineffectiveness ofold ways of doing business has providedsignificant momentum for the development andpublication of recommendations that will be thefoundation for positive change in our nation’sjuvenile delinquency courts.

The purpose of the JUVENILE DELINQUENCYGUIDELINES: Improving Court Practice inJuvenile Delinquency Cases is to set forth theessential elements of effective practice for thecourt processes that are involved in the handlingof juvenile delinquency cases. It identifiesrecommended practices throughout the juveniledelinquency court system – from thedetermination of whether a case should enter theformal juvenile delinquency court system, todetermination as to whether juvenile delinquencycourt jurisdiction should be waived and the youthtransferred to criminal court, and to post-disposition review of the reentry process foryouth returning to the community from out ofhome placement.

In the effort to produce better results in ournation’s juvenile delinquency courts, theDevelopment Committee of the DELINQUENCYGUIDELINES has accessed a wealth of experienceand data. The Committee recognizes that thereare some areas where research is lacking, andhave identified practices from innovative juveniledelinquency courts across the country that haveshown positive results.

This collective experience comes together inthe JUVENILE DELINQUENCY GUIDELINES:Improving Court Practice in Juvenile DelinquencyCases. This is the first organized effort by theNCJFCJ and the OJJDP to identify comprehensiveand effective practice for the nation’s juveniledelinquency courts. The goals are to improve thenation’s juvenile delinquency systems and theoutcomes for the youth, families, victims, and

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INTRODUCTION

The DELINQUENCY GUIDELINES ends with afinal chapter on implementation issues,checklists, a glossary, and appendices.

The structure of this book has been time-tested by the National Council of Juvenile andFamily Court Judges in publications previouslycreated for use in the juvenile court’s abuse andneglect jurisdiction. The NCJFCJ’s PermanencyPlanning for Children Department has publishedtwo similar books - RESOURCE GUIDELINES:Improving Court Practice in Child Abuse &Neglect Cases, and ADOPTION ANDPERMANENCY GUIDELINES: Improving CourtPractice in Child Abuse and Neglect Cases. Tensof thousands of these books have beendistributed and found to be useful by juvenilecourt judges and other juvenile courtprofessionals across the country. They have beenused as bench references, as system improvementroadmaps, and as training guides for systemparticipants. As in the abuse and neglect books,the DELINQUENCY GUIDELINES includes hearingchecklists that judges can use on the bench asreminders of the questions that must be answeredand the key decisions for each delinquencyhearing.

It is important to note that the juveniledelinquency court judges and other juveniledelinquency system professionals whocollaborated on the development of theDELINQUENCY GUIDELINES understand thatmany juvenile delinquency courts will not be ableto implement all of the recommendations. Alljuvenile delinquency courts, however, should beable to implement some of the recommendationsand show increased effectiveness and efficienciesas a result. Some of the recommendations requiretransition funding to initially implement thepractice, and then show sufficient cost reductionsto allow the practices to continue withoutpermanent cost increases. Somerecommendations require resource shifts toimplement. Other recommendations can beimplemented without cost. Throughout thedocument and specifically in Chapter XII,examples of how juvenile delinquency courtshave made these transitions are described.

The DELINQUENCY GUIDELINES is intendedto be used by courts and other juveniledelinquency system stakeholders to assist theirefforts to improve practice. The DELINQUENCYGUIDELINES is aspirational - they focus on whatshould be as opposed to what is. Every effort hasbeen made to make the DELINQUENCYGUIDELINES practical and usable, and to groundrecommendations in the most current researchand promising practices available at the time ofdevelopment.

Some jurisdictions are already following manyof the recommendations. Some jurisdictions may

principles that are a necessary foundation forjuvenile delinquency courts of excellence.Chapter I concludes with the identification ofroles and responsibilities that must exist in aneffective juvenile delinquency court system.

In Chapter II, important general issues notalready covered in the Key Principles are brieflypresented. All persons involved in anydelinquency system need to be knowledgeableabout these issues. Many of these general issueshave been extensively written about in multiplepublications. The purpose of addressing them inthe DELINQUENCY GUIDELINES is to emphasizetheir importance, to summarize the issues, and toidentify additional references for in-depth study.

Chapter III begins with a petition that allegesa youth to have violated the juvenile code andcovers:

• The importance of consistency in decision-making;

• Process and options for diverting complaintsfrom the formal delinquency system;

• Engaging the formal system; and• Alternatives to secure detention, managing

the detention population, and restrictions onholding youth in adult jails.

The formal system is different from theinformal system in that, if a youth complies withthe expectations of the informal system, a petitionis either not filed or dismissed, and the offense,even though admitted, should not become part ofa delinquency record.

Chapters IV through XI describe the process ofeach of the hearings that are part of the formaljuvenile delinquency court system. The structureof these chapters includes the purpose of thehearing, timing of the hearing, conducting thehearing, including who should be present andwhat information the juvenile delinquency courtshould have, as well as the decisions the juveniledelinquency court should make and record intheir written findings and orders. These hearingsinclude:

• The Detention or Initial Hearing• Hearings on Motions To Waive Juvenile

Delinquency Court Jurisdiction and TransferJurisdiction To Criminal Court

• The Trial and Adjudication Hearing• The Disposition Hearing• The Appeals Process• Post-Disposition Review of Delinquent

Youth Who Remain in Their Home withCourt Ordered Services

• Post-Disposition Review of DelinquentYouth Placed Out of the Home by JuvenileDelinquency Court Order

• Probation and Parole Violations

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INTRODUCTION

find it extraordinarily challenging to follow therecommendations. Regardless of jurisdictionalstatus and resources, it is hoped that theDELINQUENCY GUIDELINES provides a commonvision and motivational framework for thoseworking toward an improved juveniledelinquency system.

As jurisdictions strive to implement theDELINQUENCY GUIDELINES with training andtechnical assistance from the NCJFCJ, juveniledelinquency system practitioners from allsituations - urban, rural, suburban, and withvarying degrees of resources - will be able tocreate and share successful implementationmethods.

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INTRODUCTION

Endnotes1 National Council of Juvenile and Family Court Judges. (2004). Status Report 2003: A Snapshot of the Child Victims Act ModelCourts Project. [Technical Assistance Bulletin, 8(1).] Reno, NV: Permanency Planning for Children Department / Author.2 See the Preface for participants in the development of the DELINQUENCY GUIDELINES.3 Significant portions of this chapter were taken from: National Center for Juvenile Justice. (2002). Desktop Guide to GoodJuvenile Probation Practice. Pittsburgh, PA: Author.4 Section 22 of the Act to Regulate the Treatment and Control of Dependent, Neglected and Delinquent Children. Reprintedin: Hurley, T. (1907). Origin of the Illinois Juvenile Court Law, 3rd ed. Chicago, IL: Visitation and Aid Society. Also referencedin: The David and Lucile Packard Foundation. (1996). The Future of Children: The Juvenile Court, 6(3).5 “An act to regulate the treatment and control of dependent, neglected and delinquent children.” Revised Statutes of theState of Illinois (1899) as quoted in: Trattner, W. (1989). From Poor Law to Welfare State: A History of Social Welfare inAmerica, 4th ed., (pp. 117-118). New York, NY: The Free Press.6 See Appendix B for additional information on these cases and for additional key Supreme Court cases affecting the rights ofjuvenile offenders.7 Snyder, H., & Sickmund, M. (1999). Juvenile Offenders and Victims: 1999 National Report. Washington, DC: Office ofJuvenile Justice and Delinquency Prevention.8 The David and Lucile Packard Foundation. (1996). The Future of Children: The Juvenile Court, 6(3).9 Torbet, P., Gable, R., Hurst, H., Montgomery, I., Szymanksi, L., & Thomas, D. (1996). State Responses to Serious and ViolentJuvenile Crime. Pittsburgh, PA: National Center for Juvenile Justice.According to the National Center for Juvenile Justice, by 2002, two states (Kansas and Vermont) specified age ten as theminimum age for transfer; three states (Colorado, Montana and Missouri) specified age 12; and 22 states and the District ofColumbia have at least one provision for transferring juveniles to criminal court for which no minimum age is specified. (Seehttp://www.ncjj.org/stateprofiles/). 10 As of the end of the 2002 legislative session, 26 states had adopted some form of blended sentencing in which bothjuvenile and criminal sentencing procedures could be used in certain serious cases. Griffin, P. (2003). National Overviews:State Juvenile Justice Profiles. Pittsburgh, PA: National Center for Juvenile Justice. Online. Available:http://www.ncjj.org/stateprofiles/.11 Maloney, D., Romig, D., & Armstrong, T. (1988). Juvenile probation: The balanced approach. Juvenile and Family CourtJournal 39(3), 1-57. By the end of 2004, at least 30 states had adopted or were examining juvenile codes or administrativeprocedures that included this concept and 41 states articulated restorative principles in one or more policy documents.12 Supra note 9.

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INTRODUCTION