Juvenile Defense in Utah
©Paul Wake
An edited version of this article was published in the
July/August 2007 issue of The Utah Bar Journal.
This online version is more accurate and informative.
Juvenile defense in Utah is largely handled pro se or by public defenders, since the stakes are usually too small to justify hiring a defense attorney. Still, attorneys should be ready for the call to defend a wayward youth. This article aims to help attorneys be prepared. Note that juvenile court deals both with delinquency cases and with child welfare cases. This article deals solely with delinquency.
Nonjudicial Resolution
Juvenile court is not adult criminal court. Children do not have the maturity to function independently, so they cannot vote, enter into contracts, and so forth. They have more of a custody interest than a liberty interest. Recognizing this, juvenile court was created as a civil forum for dealing with delinquent acts that would be crimes if committed by an adult. The goals of juvenile court are to rehabilitate the offender, restore the victim, and protect the community, not just to punish the child. To best accomplish these goals, the juvenile justice system is relatively informal.
In fact, many of the offenses dealt with in juvenile court—disorderly conduct, theft, alcohol consumption, and the like—never go before a judge. Minor offenses committed by children without a significant offense history can be dealt with informally during a meeting between the child, a parent, and a juvenile court probation officer assigned to intake. So long as the child is not claiming innocence, the child may be able to get a nonjudicial resolution that requires paying a small fine, doing community service, or taking a class, with the result that the offense does not become part of the child’s record. This process is possible because police referrals go first to juvenile court rather than to the county attorney, so lawyers need not be involved in all cases. Sometimes the best service a defense attorney can provide is no service at all, if a nonjudicial resolution would be best for a child. Note that if a child denies an offense, the probation officer may still want to meet with the family to gather social information so the probation officer can eventually make an informed recommendation to the judge. Some defense attorneys like to put off that preliminary inquiry.
Judicial Resolution
More serious offenses, and minor offenses not resolved nonjudicially, will be handled judicially. In some of these cases offenders will have been arrested and taken to detention. Such children will have a detention hearing within two business days, at which a juvenile judge will decide whether the child should be released, perhaps to a detention alternative program, or kept in detention. Bail is not a part of this process. Attorneys should be prepared to discuss with the judge whether release would jeopardize the community or create a flight risk.
Ultimately, cases continuing on a judicial track will follow the familiar arraignment → pretrial → trial path. There may be local variations such as waiver of arraignment, or combining arraignment and pretrial hearings. Pretrials are the bread and butter of juvenile defense work. At pretrial the defense attorney should have already studied the petition (the charging document), the case history summary (juvenile rap sheet), and the police report, and should be prepared to discuss a plea agreement. Often, defense attorneys will get farther if they are prepared to discuss what would be best for the client, than if they simply dig in their heels and split legal hairs. Unless the juvenile prosecutor’s case is weak, prosecutors will usually want to reform a child, and typically are in a strong position to try to do so. Defense attorneys should have given thought not just to weaknesses with the state’s case, but also to possible outcomes that it might be in the child’s long term interest to impose. This may require a mix of admissions and dismissals, a plea in abeyance agreement with carefully considered conditions, or some other result.
It is important to realize that the defense attorney should often discuss the ultimate disposition of the case with the probation officer rather than just with the prosecutor. Just as juvenile probation handles the intake process, the probation officer will also have much to say about the final disposition, since it is the probation officer who will likely present the judge with a formal dispositional recommendation when the judge adjudicates the case. This is why it is important for defense attorneys to get to know all the players in the system, not just the prosecutor.
Dispositions in juvenile court involve a regimen of graduated sanctions. At the low end, the judge may impose fines, community service, classes, and so forth. Then comes probation, involving checks on such things as school attendance and drug use, under the eye of a probation officer assigned to supervision. Intense probation—“state supervision”—follows. More offenses, or a serious first offense, could put a child in the custody of Juvenile Justice Services (formerly called Youth Corrections). Juvenile Justice Services has community placements such as of proctor homes, wilderness programs, and sex offender treatment centers. It also runs secure confinement, which is the end of the line for juvenile offenders: long term lockup that can last until the individual is twenty-one. The juvenile probation officer and the judge will use the disposition assessment matrix from the misnamed Juvenile Sentencing Guidelines (see http://www.sentencing.state.ut.us/) to determine where in this system of graduated sanctions a child should probably go. Anywhere along this continuum there are other options including placement in an Observation and Assessment center for intensive testing and evaluation prior to final disposition, or placement in the Genesis program so a child can work off restitution hours. Defense attorneys should familiarize themselves with the available programs, so they can argue for appropriate dispositions. Be aware of drivers license suspension provisions applicable to alcohol and drug charges, and of DNA collection requirements for felony and class A misdemeanor level offenses. Some dispositions may necessitate attorney appearances later at review hearings. A concern on the horizon is the federal government’s demand that states register children as sex offenders. The legislature took no action on that issue this year, but may discuss it in the future.
Many children overlook expungement. Once a person turns eighteen, and has stayed out of trouble for at least a year, the individual can almost always have their juvenile record expunged. This requires completing a packet available from the juvenile court, and having a hearing before the judge so the judge can see what a good job the system did of rehabilitating the child. Individuals can usually handle this process on their own, but if the client is unsure or has a significant record, legal counsel can be helpful. At the least, defense attorneys should remind children at the conclusion of a case that they should remember expungement as a future possibility.
Trying Children as Adults
Occasionally a child will commit an offense so serious that the child may be prosecuted as an adult in district court. Cases involving sixteen or seventeen year olds accused of murder or of committing a felony after having been in secure confinement will be direct filed in district court, and those defendants will not see juvenile court. Sixteen or seventeen year olds who commit one of the “ten deadly sins”—essentially most aggravated offenses—will be handled under the serious youth offender process in juvenile court. This involves having a preliminary hearing in juvenile court, and if there is probable cause then transferring the case to district court unless the child can show that all of three mitigating factors apply. That showing is usually not possible. Occasionally a prosecutor might try to certify a child, which involves filing both an information charging a child fourteen or older with a felony, and a motion to certify. Certification hearings involve preparation of a detailed report by the juvenile probation officer, a hearing, and a decision by the juvenile judge regarding whether the child is still amenable to rehabilitation in juvenile court or should instead be sent to district court to be tried as an adult.
Most children do not want to be tried as adults. Defense attorneys usually cannot do much to prevent a direct file, but may be able to prevent transfer under the serious youth offender process by either prevailing upon the prosecutor not to file a qualifying felony, or by quickly agreeing to admit to a lesser offense and to receive meaningful juvenile sanctions. Attorneys should not make the mistake of assuming they can get a charge reduced in district court, with the client then qualifying to have the case returned to juvenile court. Only an acquittal would put a child in a position to ever go back to juvenile court. Certification hearings have better odds than serious youth offender hearings, and in certification cases the defense attorney should carefully prepare to show the judge that the client is not a hardened criminal but instead can be helped by the juvenile court.
Conclusion
Juvenile court practice has the appealing quality of allowing an attorney to protect a client’s due process rights while also making a positive difference in the child’s life. Procedures are different enough from criminal practice that attorneys should familiarize themselves with the Juvenile Court Act (title 78, chapter 3a of the Utah Code) and with the Utah Rules of Juvenile Procedure. A good online reference is the How to Manipulate Juvenile Prosecutors article at http://www.xmission.com/~wake/utahjuvenilelaw.html.
By evaluating whether to seek a nonjudicial resolution, by presenting a reasoned argument for release from detention, by working to develop a plea agreement that is in the child’s long term interests, and by understanding dispositional alternatives well enough to properly respond to juvenile probation’s dispositional recommendations, juvenile defenders will best serve their clients. It is often possible to work productively with the other players in the juvenile justice system, and positive relations generally yield positive outcomes. Whether helping reform the neighborhood hooligan, or burnishing up a trophy child, the results can be gratifying.
For further research there is a custom Utah Juvenile Justice Search Engine (http://www.xmission.com/~wake/search.html) that only searches from a list of relevant Utah juvenile justice web sites, and so screens out most irrelevant search results.
To contact the author, send e-mail to wake@xmission.com. If you cannot use e-mail software from your location, use this form.