Children S Policy and Law Initiative of Indiana

Children’s Policy and Law Initiative of Indiana

Equitable School Discipline and the Decriminalization of Children Summit, October 8, 2013

Decriminalization of Youth Work Group

Draft Recommendations

According to the Office of Juvenile Justice and Delinquency Prevention, youth who are transferred from the juvenile court system to the adult criminal system are approximately 34% more likely than youth retained in the juvenile court system to be rearrested for violent or other crime.[1]

The disproportionate number of minority youth directed into the adult criminal justice system is astounding. Nationally, African-American youth represent only 17% of the overall youth population, but they make up 30% of those arrested and astaggering 62% of those prosecuted in the adult criminal system. They are also nine times more likely than white youth to receive an adult prison sentence.[2] Hispanic youth are 43% more likely than white youth to be waived to the adult system and 40%more likely to be admitted to the adult prison system.[3]

Disparities are particularly pronounced in the prosecution of drug offenses. White youth are more likely to report using drugs and 30% more likely to report selling drugs; even so, African-American youth are twice as likely to be arrested and detained, and significantly more likely to be waived to adult court for drug offenses. Black youth made up 60% of the youth detained for selling drugs and 43% of the youth detained for other drug offenses in 2006. A study of 40 jurisdictions revealed that African-American youth were prosecuted in adult court at nearly 5 times the rate of white youth for drug offenses.[4]

In Indiana our statutory scheme reflects the high legal and moral obligations vested in those who participate in the juvenile justice system. The system is grounded in the belief that fairness and prevention will save our youth from a dismal and costly life of crime.[5] Unlike the adult justice system, the juvenile justice system’s primary focus is rehabilitation. The “direct file” in adult criminal court of juveniles alleged to be involved in gangs or unlawful substances deprives youth who are not yet hardened of the opportunity to make a turn for the better. Once in the adult criminal justice system the opportunities for treatment, interventions and education greatly diminish for youth. Without proper access to critical services youth with adult records face a bleak future with little opportunity to contribute to society in a positive way.

The determination of whether to waive a juvenile into the adult court system is best left to the expertise and experience of the juvenile court. The juvenile court has the proper experience to determine whether a particular juvenile can benefit from the services, supervision and interventions available through the juvenile court. It will also alleviate the unnecessary financial burden upon Indiana’s already overwhelmed adult criminal justice system.

Over the last several decades Indiana’s direct file statute (I.C.31-30-1-4) has grown to include twelve separate criminal offenses, in addition to listed drug offenses. Children who are 16 years of age or older who are charged with a listed offense are excluded from juvenile jurisdiction and prosecuted as adults. There are many consequences to youth bypassing juvenile court, including placing youth in developmentally inappropriate jails and programs. Furthermore, the definition of criminal gang activity (I.C. 35-45-9-1; 35-45-9-3) and prosecutorial charging practices regarding the criminal gang activity and drug listed offenses are of particular concern to disproportionate minority contact.

The Decriminalization of Youth Work Group presents the following draft recommendations to address implications associated with the current criminal gang and direct file statutes. To briefly summarize, changes to the criminal gang statute include the addition of language to clarify the definition of “criminal gang.” Currently, the statutory requirements which automatically place teenagers in the adult court system for participating in “criminal gang activity” are overbroad, leading to prosecution of innocuous juveniles in the adult criminal system, whoare better served within the rehabilitative aims of the juvenile justice system. The suggested languagechanges adds the requirement that an eligible offense involve the commission of a felony (or an act that would be a felony if committed by an adult) that is done as a condition of membership in a gang. The new language also ensures that the gang has an organizational, structural component.

Another important change is the removal ofmisdemeanor batteries from listed criminal gang offenses. This change will eliminate the waiver of juveniles to adult court for an offense of battery which would be classified as a misdemeanor if committed by an adult. It is important to understand that a misdemeanor battery consists merely of touching another person in a rude, insolent or angry manner resulting in bodily injury. This could be a result of something as minor as shooting a rubber band at a classmate resulting in a red mark on the skin.

Changes to the direct file statute, I.C. 31-30-1-4, include the deletion of all criminal gang and drug-listed offenses. All suggested statutory changes follow.

Suggested Statutory Changes

1)CPLI proposes amending I.C. 35-45-9-1 as follows:

"Criminal gang"

Sec. 1. As used in this chapter, "criminal gang" means a group with at least three (3) members that specifically:

(1) either:

(A) promotes, sponsors, or assists in; or

(B) participates in; or and

(2) requires as a condition of membership or continued membership;

the commission of a felony or an act that would be a felony if committed by an adult or the offense of battery (IC 35-42-2-1). and

(3) collectively engages in a pattern of criminal gang activity; and

(4) have in common an overt or covert organization or command structure.

2)CPLI proposes amending I.C. 35-45-9-4 Version b as follows:

Threats; refusal to join or withdrawal from gang; intimidation offense
Sec. 4. A personmember of a criminal gang who threatens another person because the other person:
(1) refuses to join a criminal gang;
(2) has withdrawn from a criminal gang; or
(3) wishes to withdraw from a criminal gang;
commits criminal gang intimidation, a Level 5 felony.

This change ensures that true gang membership must be proven in order to charge a juvenile with a high level felony in the adult court system.

3)CPLI proposes amending I.C. 31-30-1-4 as follows:

Juvenile court lacks jurisdiction over individuals at least 16 years of age committing certain felonies; retention of jurisdiction by court having adult criminal jurisdiction

Sec. 4. (a) The juvenile court does not have jurisdiction over an individual for an alleged violation of:
(1)IC35-41-5-1(a)(attempted murder);
(2)IC35-42-1-1(murder);
(3)IC35-42-3-2(kidnapping);
(4) IC35-42-4-1 (rape);

(5) IC35-42-4-2 (criminal deviate conduct);
(6) IC35-42-5-1 (robbery) if:
(A) the robbery was committed while armed with a deadly weapon; or
(B) the robbery results in bodily injury or serious bodily injury;
(7) IC35-42-5-2 (carjacking);
(8)IC 35-45-9-3 (criminal gang activity);
(9) IC 35-45-9-4 (criminal gang intimidation);
(10) IC35-47-2-1 (carrying a handgun without a license), if charged as a felony;
(11) IC35-47-10 (children and firearms), if charged as a felony;
(12) IC35-47-5-4.1 (dealing in a sawed-off shotgun); or
(13) any offense that may be joined under IC35-34-1-9(a)(2) with any crime listed in subdivisions (1) through (12);
if the individual was at least sixteen (16) years of age at the time of the alleged violation.
(b)The juvenile court does not have jurisdiction for an alleged violation of manufacturing or dealing in cocaine or a narcotic drug (IC 35-48-4-1), dealing in methamphetamine (IC 35-48-4-1.1), dealing in a schedule I,II, or III controlled substance (IC 35-48-4-2) or dealing in a schedule IV controlled substance (IC 35—48-4-3), if:

(1)the individual has a prior unrelated conviction under IC 35-48-4-1, IC 35-48-4-1.1, IC 35-48-4-2, or IC 35-48-4-3; or

(2)the individual has a prior unrelated juvenile adjudication that, if committed by an adult, would be a crime under IC 35-48-4-1, IC 35-48-4-1.1, IC 35-4-2, or IC 35-48-4-3; and the individual was at least sixteen (16) year of age at the time of the alleged violation.

(b) Once an individual described in subsection (a) or (b) has been charged with any crime listed in subsection (a) or (b), the court having adult criminal jurisdiction shall retain jurisdiction over the case even if the individual pleads guilty to or is convicted of a lesser included offense. A plea of guilty to or a conviction of a lesser included offense does not vest jurisdiction in the juvenile court.

[1] Juvenile transfer laws: An effective deterrent to delinquency? (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention) (June 2010).

[2]Arya, N. & Augarten, I. Critical Condition: African-American Youth in the Justice System. (2008, September) Washington, DC: Campaign for Youth Justice.

[3]Arya, N., Villarruel, F., Viallnueva, C., & Augarten, I. America’s Invisible Children: Latino Youth and the Failure of Justice. (2009, May) Washington, DC: Campaign for Youth Justice.

[4]Arya, N. & Augarten, I. Critical Condition: African-American Youth in the Justice System. (2008, September) Washington, DC: Campaign for Youth Justice.

[5]IC 31-10-2-1

Policy and purpose

Sec. 1. It is the policy of this state and the purpose of this title to:

. . . (5) ensure that children within the juvenile justice system are

treated as persons in need of care, protection, treatment, and

rehabilitation;

. . . (10) provide a judicial procedure that:

(A) ensures fair hearings;

(B) recognizes and enforces the legal rights of children and

their parents; and

and parents;