DELAWARE S RECENT JUVENILE JUSTICE ACTIVITY Lisa A Minutola

DELAWARE’S RECENT JUVENILE JUSTICE ACTIVITY Lisa A. Minutola, Esq. Chief of Legal Services Dawn M. Williams, Esq. Family Court Unit Head Delaware Public Defender’s Office

JUVENILE SEX OFFENDERS n n Pursuant to Delaware law, all juvenile adjudicated of sex offenses are required to register and are subject to community notification depending on tier level. In 2001, the Delaware Supreme Court held in Helman v. State, 784 A. 2 d 1058 (Del. 2001), that Delaware’s application of sex offender notification and registration requirements to juveniles was constitutional. Delaware was deemed to be in substantial compliance with SORNA on May 3, 2010. Delaware was the second state to become SORNA compliant.

n n Tier III Registration is for Life. May not petition for designation to Tier II until 25 years have passed. Tier II Registration is for 25 years. May not petition for designation to Tier I until 10 years have passed and victim cannot be under 18. Tier I Registration is for 15 years. May not petition for relief from registration until 10 years have passed. These amended laws applied to all sex offenders adjudicated after June 27, 1994.

Recent favorable court cases include: § State v. Fletcher, 974 A. 2 d 188 (Del. 2009), where the Delaware Supreme Court held that if a juvenile’s adjudication for a sex offense was expunged, then he would also have to be removed from the sex offender registry. (Recently passed legislation, however, excludes Rape I and II from the juvenile expungement statute. ) § Heath v. State, 983 A. 2 d 77 (Del. 2009), where the Delaware Supreme Court held that a governor’s pardon also removes an offender’s information from the sex offender registry.

§ In 2009, the Delaware Department of Services for Children, Youth and their Families (DSCYF) received several CASOM grants to train its divisions and its juvenile justice partners (Courts, prosecutors, defense attorneys, treatment providers) in emerging best practices. Multiple trainings were held including two statewide, multidisciplinary conferences in 2009 and 2010. The Public Defender’s Office was a member of the planning committee. § The Public Defender’s Office is a board member of the Sex Offender Management Board which is statutorily charged with creating guidelines and standards for adults and juveniles adjudicated of sex offenses.

n n n On May 28, 2009, HB 182 was introduced in the Delaware House. This bill sought to provide Family Court with discretion to determine the registration requirements for juveniles who did not fall under SORNA. The bill was assigned to the House Judiciary Committee. Despite the support and sponsorship of the committee chair, the chair was the only member who voted to release the bill from committee. The Attorney General’s Office lobbied strenuously against the bill. The bill was tabled. The chair asked that we try to reach a compromise.

n n During the recess, attempts were made to meet with the Attorney General’s Office to discuss compromise legislation but those attempts were rebuffed. The House Judiciary debate on HB 182 sparked the interest of many juvenile justice and child welfare agencies. These agencies came together and drafted HS 1 for HB 182.

HS 1 for HB 182 still vested in Family Court guided discretion to determine the registration requirements for non-SORNA juveniles but added additional factors, including but not limited to: § the risk the juvenile poses to the victim, the community and to other potential victims; § the impact of registration and community notification on the victim; § the evaluation, risk assessment and treatment recommendations for the juvenile required by subsection (b) of this Section; § the likelihood of successful rehabilitation, if known; § the adverse impact of public registration on the juvenile and the rehabilitative process.

n n On March 31, 2010, Nicole Pittman, Esq. and Dr. Tim Foley, presented information in support of HS 1 for HB 182 to a joint session of the House and Senate Judiciary Committee. On May 24, 2010, Nicole Pittman, Esq. presented similar information to the Delaware Sex Offender Management Board. HS 1 for HB 182 was introduced on May 27, 2010. Due to the fact that 2010 was an election year, and the bill was considered controversial, the substitute bill was not debated.

n n In 2011, additional partners joined the effort to modify Delaware’s sex offender registry for juveniles including several state agencies and youth serving organizations. A letter of support signed by these entities was sent to Delaware Attorney General Beau Biden. A meeting was also held with the Governor’s office in which it was indicated that the state agencies affected by this bill were free to testify in favor of the bill.

n n n On May 26, 2011, HB 137 was introduced. This bill was identical to HS 1 for HB 182. On June 1, 2011, the bill was debated in the House Judiciary Committee. The Attorney General’s Office again actively opposed the bill but hinted at the possibility of compromise. The bill was released from committee with 8 votes on the merits and 2 abstentions.

n n n The bill was not debated on the House floor prior to the recess in July as the sponsor sought to reach a compromise with the Attorney General’s Office prior to debate on the floor. In 2012, we again tried to reach an agreement, however, the compromise suggested by the Attorney General’s Office offered less opportunity for relief than under the present statute so it was ultimately rejected. The sponsor has indicated he will try to push the legislation again in 2013.

OTHER CHALLENGES TO JUVENILE SEX OFFENDER REGISTRATION n n n In 2012, the Public Defender’s Office filed motions to stay sex offender registration in two cases where the juvenile was adjudicated of a felony sex offense which mandated Tier II registration. These motions are currently pending before the trial court. The arguments in support of the relief include constitutional challenges to the registration statutes as applied to juveniles under Due Process and Cruel and Unusual Punishment. There has also been discussion with the Court and the prosecutors office to create a diversionary program that would result in treatment and the avoidance of registration upon successful completion.

STATEWIDE SUPERVISOR OF JUVENILE SEX OFFENSE CASES n n In 2011, the Public Defender’s Office designated one attorney to supervise juvenile sex offense cases statewide in an effort to ensure the best possible representation and results in these cases. The supervising attorney provides litigation support in all cases and she is available to assist through all phases of the case. It is mandatory that a psycho-forensic evaluator be part of the defense team in these cases and the supervisor reviews each case on a monthly basis. The supervising attorney has been trained on all the legal and treatment issues that exist in these cases.

JUVENILE COMPETENCY LEGISLATION n n Prior to 2012, Delaware did not have a statute that dealt specifically with the competency of juveniles. The standard for competency to stand trial was the same for juveniles and adults. Juveniles who were deemed incompetent to stand trial were scheduled on a special court calendar that was handled by one judge, prosecutor, and public defender. Following a review of an expert evaluation and report, the parties would either stipulate to the opinion in the report or a hearing would be held. Once a legal finding of incompetence was reached either by way of stipulation or judicial decision, the juvenile’s cases were scheduled on the competency calendar for treatment and court supervision. At the discretion of the court, the charges could ultimately be dismissed. However, there was no set time frame or standard to govern dismissal of the charges.

JUVENILE COMPETENCY LEGISLATION n n In 2012, through the collaboration of the defense bar, the prosecutor’s office, and other juvenile justice stakeholders, a juvenile competency statute was enacted. The statute expressly defines a competency standard taking into account: n n n the ability to understand the nature of the proceedings, the ability to present evidence, and the ability of the juvenile to instruct counsel and Any mental illness, developmental disabilities, cognitive impairment, chronological immaturity, and any other factor affecting competency. The statute also provides that the evaluator make treatment recommendations and specify any conditions that will prohibit the restoration of competency even with treatment. This bill allows for mandatory dismissal of charges against incompetent juveniles after certain time periods have elapsed

COLLATERAL CONSEQUENCES CHECKLIST n n n Juvenile adjudications are not sealed in Delaware. Although juveniles are subject to less stringent expungement laws than adults, expungements are not automatic and the filing of a petition is required. Expungements are subject to waiting periods and limitations. Although some less serious offenses are subject to mandatory expungement, more serious offenses are within the court’s discretionary and are often opposed. Recognizing the ongoing, severe collateral consequences of juvenile adjudications, the Public Defender’s Office created a collateral consequences checklist for juvenile clients This checklist advises of the collateral consequences of adjudications, including housing, education, driving privileges, federal and state benefits, immigration, and the child abuse and sex offender registry This checklist is on the Public Defender website and will be disseminated to clients, and other juvenile justice agencies

WAIVER OF COUNSEL n n n Delaware does not have any court rules or statutes that govern waiver of counsel for juveniles in delinquency proceedings. Per court practice, juveniles generally cannot waive counsel in cases involving felony offenses; however, juveniles are allowed to waive counsel for all other types of charges and proceedings. In 2012, the Public Defender’s Office requested that the court adopt a formal policy prohibiting waiver of counsel under certain circumstances: n n n Felony offenses Any offense where parent/guardian is a victim/witness All offenses where the juvenile respondent is in state custody.

n n The court has accepted the policy suggested by the Public Defender’s Office. In the future, the Public Defender’s Office. will work with the court on the creation and adoption of a court rule that provides even further protection against waiver of counsel and proscribes a mandatory colloquy for judicial officers.

JUVENILE JUSTICE TRAININGS n n n The Public Defender’s Office provides one formal training on juvenile issues per year through its CLE program. Some topics have included Adolescent Brain Development, Special Considerations for Juvenile Interrogations and Education Law. The juvenile unit also provides informal trainings to its staff throughout the year. The Public Defender’s Office participates in trainings with other state agencies, such as the Department of Youth Rehabilitative Services (YRS) and the Office of the Child Advocate, in an effort to further our holistic defense practice and our relationship with collateral resources. In 2012, a statewide juvenile justice conference was held in Delaware. There were over 400 attendees from various agencies involved in juvenile justice. The Public Defender’s Office participated in planning this conference and topics in juvenile defense, such as the role of the juvenile defender, collateral consequences, competency, and juvenile sex offender registration, were presented.

SHACKLING n n In Delaware, detained youth are shackled during court proceedings as a result of YRS and court policy. Counsel can motion the court for the shackles to be removed during proceedings. In 2012, the Public Defender’s Office requested that this policy be changed such that youth are NOT shackled unless there is a showing that the youth poses some safety or flight risk such that restraint is necessary. This proposal was discussed at the Juvenile Justice Collaborative quarterly meeting in September 2012.

DIVERSION PROGRAMS n n The Public Defender’s Office, in conjunction with the court, the prosecutor’s office, and other juvenile justice partners, has supported the creation and implementation of diversion programs statewide. In 2012, the juvenile mental health court diversion program was expanded statewide. This program provides mental health and substance abuse treatment services. Upon successful completion of the program, the charges against the juvenile are dismissed. In 2010, the gun court program was created. This program is special court calendar which is handled by one judge, prosecutor, and public defender statewide. This program has resulted in the resolution of serious felony offenses, eligible for transfer to adult court, in juvenile court. The Public Defender’s Office also is a member of a committee seeking to bring a civil citation model to Delaware.

EXPUNGEMENT PROJECT n n The Public Defender’s Office does not routinely represent juveniles in expungement proceedings due to our statutory mandate and resource issues. In late 2011, the Public Defender’s Office organized a pilot project with volunteer attorneys from the private bar to represent juveniles in these proceedings for certain sex offenses. In 2012, the Public Defender’s Office began discussions with Widener University School of Law to determine if its legal clinic would represent juveniles in expungement proceedings. Although a formal program is not in place, the law school continues to show interest.

ADVOCACY IN JUVENILE JUSTICE n n n The Public Defender’s Office has a leadership role in all juvenile justice initiatives. The office is a member of various committees, work groups, and boards and often chairs these efforts. In recent years, the office has increased its role in drafting and advocating for juvenile justice legislation.