In 2017, Utah’s juvenile justice system will begin two years of major “reforms” that will essentially gut the system. The changes are extensive enough that the author of this web page does not have time at present to revise the information below to update it. For now, the information on this web page is rapidly becoming out of date. You can get a peek at the coming changes, though, by looking at this PDF.
In summary, the “reforms” will essentially leave the shell of a juvenile justice system in place, so the public will believe something is being done about delinquency, but beginning in August of 2017 and continuing with additional changes in July of 2018 the “reforms” will guarantee that there is very little personal accountability. Many youth who commit offenses in their schools will not be referred to juvenile court, and their schools will be required to implement delinquency programs to deal with them; school administrators are supposed to investigate most delinquency offenses in school, even those that will end up going to court. Of those who commit offenses in the community and are referred to juvenile court, most will not see a judge but will be dealt with informally by a juvenile court employee assigned to resolve cases nonjudicially at intake, no matter how many times the child reoffends as long as an assessment says the child is low risk (at the time this legislation was being passed, a stabber who tried to murder several students was afterward assessed as low risk, which shows how scientific these tools are). Detention will be rare. For those who do go before a judge, the default penalty for anything ranging from curfew up to most felonies will be five to ten community service hours total no matter how many offenses they commited in a particular episode, with considerable new limits on a judge’s ability to do anything if a minor simply refuses to obey the court’s order. Anyone given supervision by a juvenile probation officer will likely only be checked on for from three to six months. Work restitution facilities, most intermediate sanctions, and so forth will be gone. Those few children who are put in state custody with Juvenile Justice Services will presumptively get a maximun of from three to six months of care before being released. Transfers to the adult system will become almost impossible. These changes came because the legislature bought the lie that was used to promote them: that the average kid referred to juvenile court is supposedly trapped in the system for years, saddled with thousands of dollars to pay and an ever burgeoning set of demands placed on them by judges who only want to ruin their lives by putting them in detention for every bit of noncompliance, and that spending tax dollars on juvenile court somehow increases offense rates rather than keeping offense rates as low as they have been. See infra note 81. These “reforms” will cause destruction to a generation of troubled youth, who will respond predictably when they learn they can get away with most anything, and will cause considerable cost to taxpayers in the long run when the system will have to be restored, after people figure out that ignoring crime does not make crime go away.
2018 addition: One of the biggest concerns about HB 239 was how it left so many of the details of its implementation up to state bureaucrats. Now that those people have decided how to implement the details of the law, the real mischief has begun. The HB239 “reforms” were supposed to reduce being trapped in the system. But now, minor offenses do not result in one quick visit to an intake officer, they require a series of visits, for all the “science” to be implemented. Of course, that science is junk science, reflecting ideology rather than research. That ideology called for giving poor kids relief from the system. But when other families started learning that their kids were getting hit with fines, but lower income co-defendants were getting zero dollars in fines, the uproar led “science” to change, and now some level of fines is possible. And the story spins on and on, complete with collateral consequences like prosecutors trying to get more kids into the adult system so there at least some consequences. Before HB 239 it was possible to be confused by the improbability of the tale of the emperor who had no clothes, but post-HB 239, observing so many people trying so hard to prop up this farce, it becomes apparent that indeed there is no limit to how ludicrous people can be.
One final addition: If the above seems a little testy, it is. Those who wrote and pushed this law have been quite hostile to those who want to fix it, and that has become worse than tiresome. In the absence of a fix, the system has, for example, refused to transfer an almost 18-year-old violent youth who most recently went into a yard and picked up sledgehammer to attack a stranger from behind for no apparent reason, smashing his body to a comatose pulp before then terrorizing a daycare next door. Even as murder numbers rise, there is talk of new legislation to restrict transferring 16 and 17-year-old murderers. This isn’t a justice system, it’s just a system, and a frustratingly dangerous one at that.
Attorneys venturing into juvenile court enter a different type of justice system, sometimes at their client’s peril. As one judge put it, “[c]riminal defense attorneys unfamiliar with Juvenile Court procedure tend to be at the worst at unwittingly hurting their clients’ positions.”1 Happily, a basic familiarity with the purposes and procedures of juvenile court is not hard to come by, and can help convert one into an effective practitioner.2 This article seeks to provide familiarity with the delinquency-related aspects of juvenile court practice3 in Utah so that attorneys new to juvenile defense can get the system to do what is best for their clients.
Practitioners coming to juvenile court should first realize that they are not in criminal court, and the juvenile justice system’s aims are not those of the criminal justice system.4 Juvenile courts exist because children are children, and the criminal justice system does not provide appropriate means to deal with their misbehavior. Children are still developing, and do not have the maturity to function without adult guidance. We do not allow children to contract, to vote, to smoke or drink, to serve in the military, or—in most cases—to marry or drive. We make sure that children are in someone’s custody. We do not consider them as accountable as adults, who are presumed to be responsible for all of their actions and can therefore be treated accordingly. We try to help children become decent, productive adults, rather than simply condemning them and throwing them away. The State, through its juvenile justice system, responds to delinquent children more as a concerned parent rather than as an avenging angel.5
Because of this focus, juvenile courts have traditionally been paternalistic institutions focused more on a child’s custody interest than on her liberty interest. Juvenile judges, assisted by their probation officers, focused on rehabilitating children and were more concerned with administering individualized justice on the child’s behalf than with jumping through procedural hoops intended to guarantee due process. With federal courts intervening in juvenile justice since the 1960’s to require more attention to due process,6 juvenile courts have become less informal and more adversarial. Still, they retain more informality than one will find in the criminal justice system.
Even so, the focus of the system does shift, sometimes like a pendulum. Following a temporary surge in juvenile offense rates during the late 1980’s, many legislatures responded with a get tough approach. In the mid-1990’s Utah’s legislature largely abandoned discretionary transfer, and mandated that certain kinds of offenders be transferred to the criminal justice system to be tried as adults.7 The Serious Youth Offender Act abandoned any attempt at juvenile court rehabilitation of certain categories of offenders, including some first offenders. In the early 2010’s, the legislature reversed course and made it more difficult to try children as adults.
Overall, Utah’s juvenile justice system endeavors to take a balanced approach, working toward community protection, competency development on the part of the child, and accountability to victims.8 This approach is intended to benefit the child, rather than just punish her. Accordingly, defense attorneys should be aware that people within the juvenile justice system do not consider themselves adversaries of the child, but instead are on the child’s side (of course, the child may not see it that way).
The juvenile court has jurisdiction over people under the age of twenty-one for most offenses committed before the age of eighteen.9 However, district and justice courts have jurisdiction over traffic, wildlife, boating, and OHV offenses that are class B misdemeanors or lower, committed by sixteen and seventeen year olds (except that class B reckless driving and driving under the influence charges go to juvenile court). Traffic offenses and the like that are committed along with offenses over which the juvenile court has jurisdiction can all go to juvenile court together. The juvenile court has concurrent jurisdiction over adults for specified crimes such as contributing to the delinquency of a minor, and adults tried for such crimes can have a criminal jury trial in juvenile court, although more commonly they will go to adult court; compulsory education violations now fall within concurrent jurisdiction also.10 Typical juvenile delinquency cases handled by juvenile court include curfew, theft, tobacco possession, alcohol possession or consumption, marijuana possession, criminal mischief, disorderly conduct, and assault, and sex offenses like sexual abuse of a child.11 The misdemeanor-level offenses make up the bulk of the cases dealt with by juvenile court personnel.12
Children accused of violating the law enter the juvenile justice system through referral by a law enforcement agency.13 If a law enforcement officer believes a child should come within the jurisdiction of the juvenile court, the officer will refer the child to juvenile court by submitting a police report or citation14 to the court.15 Officers can refer to juvenile court a child of any age, for almost any violation of law (a few crimes require direct filing in the criminal justice system, as described below, and most traffic offenses are tried in district court or justice court).16
An officer can take a child into custody if the officer sees a child break the law, if the officer has reasonable grounds to believe the child committed an act that would be a felony if committed by an adult, if the child is seriously endangered or is endangering others and immediate removal is necessary, if the child is a runaway, or if the child is truant.17 A child is seldom taken to detention, but instead is more commonly released to her parents with a referral going to juvenile court later.18 When a child is taken into temporary custody the officer must notify her parents without unreasonable delay, and release the child to them after gathering her name, address, and other necessary information.19 If the child is not released to her parents she must be taken to detention or shelter without unreasonable delay.20 There are distinct limitations on placing a child in detention.21 In addition, children who are kept in detention after being taken there following an arrest must have a hearing within two working days to determine whether it is safe to release the child from detention; the child should be released unless she is a flight risk or a threat to others.22 Bail is not usually available in juvenile court.23 However, release from detention to home detention or some other detention alternative is an option, if unconditional release seems unwise.24 If an officer does not want to take a child to detention but a parent cannot be located, the officer may take a child to a youth receiving center. Such centers—also called youth service centers—keep the child temporarily until a parent can be located. Children picked up for truancy may, depending on the area, be taken to a school district truancy center.25
When the juvenile court receives a referral, a juvenile court probation officer assigned to intake will make a preliminary determination as to whether the facts may give the court jurisdiction, and will enter the referral on the court’s computer.26 If the intake probation officer has a question about a charge, the probation officer can ask the county attorney to screen the charge. The probation officer will request that the child and at least one parent come to court for a meeting with a probation officer. At this preliminary inquiry the probation officer will gather some social information on the child: home environment, school status, etc. If the child does not controvert the allegations in the referral, the probation officer may reach a nonjudicial adjustment with the child.27 Nonjudicial closure involves working out an agreement that might require the child to do any of a number of things, such as paying a fine, attending a class, or performing community service.28 By completing the agreement the child will avoid going before a judge and perhaps getting a record of a judicial adjudication that could hurt the child down the road.29
There are a number of variations on this theme,30 depending on the procedures used and the services available locally. The police may divert a child into a youth court program, which can deal with lesser offenses and keep the child’s case from ever being referred to juvenile court if the child agrees to follow the decision of the youth court.31 The juvenile court may handle incoming citations through a program designed to deal nonjudicially with certain offenders within two to three weeks of the citation being issued, and the citation may even give a specific time to attend the program for a group class on obeying the law, followed by possible nonjudicial closure of individual cases. Juvenile drug court personnel may offer the chance to enter an alternative drug program, which could save a child’s driver license. In some, primarily Wasatch Front, areas juvenile prosecutors have begun screening earlier in the process, sometimes even twisting the normal procedure into something mimicking the criminal justice system so that referrals flow to the prosecutors and then on to the juvenile court. It helps to ask around and identify the particular procedures used in one’s own area, and to identify the services available locally. It also helps to understand the jargon: the experienced juvenile practitioner will use words like “petition” and “disposition” instead of “information” and “sentence.” In addition, understand where cases will be handled. In terms of venue, cases will probably start in the court serving the area where the child lives, but if the offense occurred in another county then the case will be transferred to that county for pretrial and trial if necessary; after adjudication, the case will probably then be returned to the child’s home court for disposition.32
If at the preliminary inquiry (often called a “PI”) the child contests the allegations in a referral or if the probation officer determines it would be inappropriate to nonjudicial a charge (offenses that would be felonies if committed by an adult, for example, would almost never be nonjudicialed, and certain lesser offenses go before a judge), or if the child declines to attend a preliminary inquiry, then the case will be petitioned33 and set for arraignment before a juvenile court judge.34 Alternatively, the child and a parent may sign an arraignment waiver form and skip arraignment.35 At arraignment the judge will inform the child of her rights as described in Utah Rule of Juvenile Procedure 24.36 The judge will then ask the child to admit or deny the truth of the allegations in the petition.37 Some judges ask the child to admit or deny the charge, and some ask if the charge is true or not true. If the child admits the charge, the judge will adjudicate that the child is within the jurisdiction of the court.38 The judge will then usually proceed to disposition, but may postpone disposition until probation can complete a pre-disposition report recommending a disposition.39
It should be obvious at this point that juvenile probation officers (often called “POs”) are an important part of the system. To be effective, it is not enough for a defense attorney to speak only with the juvenile prosecutor—by then, one may have already foregone the chance to get nonjudicial closure or to affect a dispositional recommendation. The effective juvenile defense attorney will talk to the probation officer early on, find out what direction the probation officer is headed, and provide any relevant information to the probation officer. If the child is in Juvenile Justice Services custody (Juvenile Justice Services is the renamed version of Youth Corrections), a JJS case manager will be involved in the court process and juvenile probation will have little if any involvement.40
Cases that continue past arraignment will typically be set for a pretrial conference and hearing at which the child and her parents, or the child’s attorney,41 can discuss a possible plea agreement with the juvenile prosecutor. The prosecutor’s options at pretrial include demanding straight up admissions; pushing charges to trial; or negotiating a plea agreement such as reducing or dismissing some charges, or working out a plea in abeyance or a diversion agreement. Depending on the flexibility of the parties and the judge, plea agreements can be fairly creative. For example, a plea in abeyance agreement might require payment of a fine and restitution, attending school and passing all classes, having no contact with a victim, taking random drug tests, going to counseling or participating in an educational program such as an anger management class, and writing a letter of apology, in addition to going a period of time with no new offenses. Such plea agreements give a child an incentive to behave, since a violation would result in prompt disposition on the underlying charge.42 By complying, the child would eventually get the charge reduced or dismissed, and possibly avoid more severe mandatory sanctions that could accompany a straight up admission or an adjudication that the allegations in the petition are true. Of course, neither party need pursue a plea agreement if compromise seems inappropriate. Keep in mind, though, that like district court judges, juvenile court judges aren’t always overjoyed when cases settle at the beginning of trial rather than at pretrial, and there is less excuse for late settlement in juvenile court. Disposition on admitted offenses often takes place at the pretrial hearing, although the judge may do disposition later at a dispositional hearing.43
If a case goes to trial (occasionally called an “adjudicatory hearing”), proceedings will be similar to those in criminal court.44 Pretrial motions are possible, but in practice are not used as much as one might expect.45 At trial there will be no jury and likely no spectators. Although the legislature has been chipping away at the confidentiality of juvenile court proceedings46 and records,47 many proceedings are still closed to the public. Trial procedure will be familiar, although attorneys may be more likely in juvenile court than in district court to waive opening statements or closing arguments. Disposition on adjudicated charges may follow immediately, with a probation officer making a dispositional recommendation to the judge, or may take place later if the judge requires more information before making a decision.48 The judge need not make written findings of fact.49
Typically, dispositions include some mix of community service hours (technically called “compensatory service” following a 1998 statutory change), fines, and restitution.50 Occasionally the court will impose a short stay in detention, not to exceed thirty days. When the amount of restitution is contested the court may use a victim-offender mediation program to resolve the dispute, if such a program is available in that jurisdiction, and then go to an evidentiary restitution hearing if necessary. The court may place a child in a court-run work program in which the child can work off some community service hours, or in a work restitution program in which the child can work off restitution. Other requirements, such as taking an anger management class or tobacco cessation class, may be included. Substance abusers may be ordered to take a substance abuse assessment, sex offenders may be sent to get a sexual behavior risk assessment or a psychosexual evaluation, and the reports from such assessments may result in specific dispositional recommendations. One sanction defendants may well be aware of and concerned by is the mandatory driver license suspension accompanying drug, alcohol, and public intoxication charges, which applies to all children thirteen or older at adjudication.51 For the relatively small number of repeat offenders, a regimen of graduated sanctions provides for increasingly intense intervention. The misnamed Juvenile Sentencing Guidelines lay out recommended dispositions.52
If a child has failed to respond to sanctions imposed for earlier offenses, then repeat offenses (or a serious first offense) may result in being placed on probation to a juvenile court probation officer assigned a supervision caseload. The PO may monitor school attendance, drug use, or other appropriate concerns.53 Probation generally lasts for at least a few months, and can involve anything from minimal supervision to effective weekly contacts, random searches, and other frequent checks on compliance with the terms of probation. The next step is state supervision, an intense type of probation incorporating intermediate sanctions in the form of various intrusive but helpful services. If the child doesn’t straighten out at this point, future offenses may put her within the custody of Juvenile Justice Services (formerly named Youth Corrections) for community placement, which will utilize various options such as placement in a group home.54 The end of the line is secure confinement with Juvenile Justice Services, which involves being locked up for months or possibly years in a secure facility.55 Length of stay in secure confinement, as well as what happens on parole afterward, is controlled by the citizens making up the Youth Parole Authority, which can keep a child in secure confinement until she turns twenty-one. The Youth Parole Authority has its own matrix scheme for determining likely lengths of stay.56 Various other options available anywhere along this continuum of graduated sanctions include use of a residential Observation and Assessment facility57 to do in-depth assessments of a child’s psychological makeup and needs, and placement in the residential Genesis work facility if the child needs that level of supervision to work off fines or restitution.58 A child may not necessarily climb every rung of this ladder to reach the top; jumping past rungs is always a possibility. For example, a child might skip probation to be put on state supervision, or go from “other sanctions” to JJS custody.
By looking at a child’s offense history and then noting the severity of the presenting offense, one can plug a child into a particular box on the disposition assessment matrix of the juvenile sentencing guidelines and get a general idea of the sort of disposition the child may receive (the matrix is reproduced at the end of this article). The guidelines also list aggravating and mitigating factors that may affect final disposition. It is important to carefully study the written explanation of the guidelines to become familiar with what does and does not count in terms of offense history, and to note which offenses can result in major jumps up the matrix. Infractions, status offenses, and non-drug related moving and non-moving traffic violations are not within the scope of the guidelines. Probations violations, contempts, and nonjudicial closures are not counted in the offense history assessment (although they may be considered aggravating factors). Unlike other felony-level offenses, a single prior person or firearm felony-level offense will bounce a child up to row IV for purposes of evaluating a new offense. Also, any felony-level offense committed after a community placement, including the presenting offense, puts a child on row V. Be aware that the matrix is often not followed rigorously in practice.
Disposition may not be the end of court proceedings for a child, as juvenile court judges may schedule periodic reviews to check on the child’s progress.59 Other future proceedings may include reviews of plea agreement compliance, new hearings or appeals,60 and expungement hearings. Cases dealt with by pleas in abeyance are not closed until the court ultimately either dismisses the petition or does disposition (depending on compliance with the plea agreement). Defense attorneys sometimes think their job is complete when the plea agreement is entered, but defendants sometimes expect the attorney to help them when the juvenile prosecutor claims at a subsequent hearing that the plea agreement was violated. Defense attorneys should make sure everyone is clear on when representation ends. Appeals go to the Utah Court of Appeals, and must be undertaken within thirty days. Expungement is a sometimes overlooked but desirable way for a rehabilitated offender to make one last visit to juvenile court. After a child turns eighteen, and after a year has passed since the court’s jurisdiction terminated or since unconditional release from a Juvenile Justice Services secure facility, the person can petition for expungement of almost any juvenile offense. At a hearing the judge will examine the person’s record and determine whether rehabilitation has been achieved, and may order sealed the records in the case. Expungement allows the person to legally affirm that she has no record.61
Utah has three means of sending children to district court to be tried as adults: direct file, the serious youth offender process, and certification. Although only a small number of children are tried as adults, the potential lifelong impact of such proceedings makes it more important that defense attorneys be involved in them than in normal juvenile court proceedings, and justifies giving particular attention to this area of juvenile court practice.
If a sixteen or seventeen year old is charged with murder or aggravated murder, or if a sixteen or seventeen year old is charged with any of a list of specified felonies committed after the child has been in a secure facility (the same list as the serious youth offender crimes), then the charge must be filed directly in district court and the child is tried as an adult.62 This is nondiscretionary, and the child does not even start at juvenile court. Unless the child is acquitted in district court, the juvenile court will not have jurisdiction over future offenses.63
If a sixteen or seventeen year old is charged with any of the felonies listed in the Serious Youth Offender Act (those felonies, sometimes called the “ten deadly sins,” include about half of the aggravated offenses: aggravated robbery, aggravated burglary, etc., as well as some weapons-related offenses)64 as a principal actor, then the charge may be filed in juvenile court by information rather than by petition, and would then go through the serious youth offender process.65 Until 2013 and 2015 changes, the serious youth offender process was heavily weighted toward transferring the child to district court to be tried as an adult. Now, juvenile judges have more discretion. The process involves a first appearance, at which the charge is read and an attorney may be appointed; no plea is taken at this stage. The court will then schedule a preliminary hearing in juvenile court (the juvenile rules term it a “preliminary examination”), although the child can waive the preliminary hearing. The preliminary hearing must be held within ten days of the initial appearance—thirty days if the child is not in custody—unless the judge extends the time for good cause; criminal rules of procedure will apply.66 At the preliminary hearing the prosecutor has to show probable cause that the crime was committed and that the child committed it (probable cause is a low standard, and under Utah Rule of Juvenile Procedure 22(j) the prosecutor can use reliable hearsay to reach that burden).67 Then, the juvenile judge “shall order” the child bound over to district court unless doing so would be “contrary to the best interest of the minor and to the public” (note the “and”). In making this determination, the juvenile judge may shall consider only: 1) whether the minor has been previously adjudicated for a felony-level dangerous weapon offense; 2) whether—if the presenting offense was committed with others—the minor has greater or lesser culpability than the codefendants; 3) the extent to which the minor’s role was violent or aggressive or premeditated; 4) the number and nature of the minor's prior adjudications; and 5) whether public safety and the interests of the minor are better served by handling the minor in juvenile or in district court. The child has the burden of showing by a proponderance of evidence that in light of these five factors it would be contrary to the best interest of the minor and the best interests of the public to bind the minor over. If the minor cannot meet that burden then the juvenile court judge must bind the minor over.68 When a child is bound over, the juvenile judge will issue a warrant of arrest, set initial bail, and the child will then be taken to jail.69 Unless the child is acquitted in district court, the juvenile court will not have jurisdiction over future offenses.70
If a fourteen, fifteen, sixteen, or seventeen year old commits any offense that would be a felony if committed by an adult, the prosecutor can seek to have the child certified to stand trial in district court, by filing in juvenile court an information and a motion to certify.71 At a hearing held within thirty days72 the prosecutor must show probable cause that a crime occurred and that the child committed it. If the prosecutor meets that burden he must then show by a preponderance of the evidence that it would be contrary to the interests of the child or society for the juvenile court to retain jurisdiction. Although there are specific statutory criteria73 for the juvenile court judge to consider in determining whether to retain jurisdiction, and the judge must make findings on those statutory factors, this process boils down to a hearing at which the judge subjectively determines whether the child can be rehabilitated and should therefore be kept in the juvenile justice system, or should instead be abandoned to the criminal justice system to be tried as an adult. The judge may be aided by a detailed report prepared by juvenile probation, which should be completed at least two days before the hearing.74 If the judge finds that there is probable cause but denies the motion to waive jurisdiction and certify, then the juvenile court will proceed on the information as if it were a petition; if the child is transferred, then unless the child is acquitted in district court, the juvenile court will not have jurisdiction over future offenses.75
Prior to 2013, the Serious Youth Offender Act almost guaranteed transfer. Mandatory, discretionless transfer of children to the criminal justice system has always been controversial. Children cannot legally contract, vote, serve in the military, smoke, drink, marry or drive (in some cases), or otherwise act as adults, because they aren’t adults. However, if a sixteen year old’s first offense involved, for example, following an eighteen year old into a house to steal something, and the co-defendant punched the homeowner (resulting in an aggravated burglary charge for both defendants), then the child could be tried as an adult and perhaps put in prison as an adult, without the prosecutor or the juvenile judge having much of an option to keep the child in juvenile court on that charge. Some people question whether such results reflect rational, enlightened notions of justice and child development.
In 2013 the legislature amended the SYO Act to give juvenile judges an increased but limited level of discretion in the transfer decision. By 2015, additional changes by the legislature eviscerated the act, essentially making it the functional equivalent of certification. It will be interesting to see if there are many transfers under the act with the 2013–2015 changes. One thing that was ironic under the original version of the act was that by the time many of the children who reached serious youth offender status got to that level, they had enough of a record to merit secure confinement in the juvenile justice system. Juvenile Justice Services could incarcerate such people until they turned 21, although most stays in secure confinement were shorter. However, in the criminal justice system they may well have only gotten probation. A study of seven central Utah children transferred under the original serious youth offender process showed that only one transferred child got prison time, one got jail time, and the rest got probation (along with fines, stayed time, etc.). In the juvenile justice system most would have gone to Youth Corrections (now called Juvenile Justice Services), with at least three likely going to secure confinement (the reason some of these children might not have gone to Youth Corrections if the juvenile courts had dealt with them was due to their minimal or nonexistent prior offense history.)76
Nationwide, children transferred to the criminal justice system to be tried as adults are usually dealt with more harshly than those kept in the juvenile justice system; the different outcomes mentioned above may be an aberration.77 Also, transferred children who gain adult felony records are permanently stigmatized. However, as explained during the US Department of Justice’s 1998 national teleconference on juveniles in the criminal justice system, the available studies tracking transferred children show that transferred children have significantly higher rearrest rates than children kept in the juvenile justice system. Exposure to more physical and sexual assaults, immersion in a prison culture without positive socializing influences during adolescent development, and exclusion from the legal job market both during prison and—to a distinct degree—afterward all contribute to make transferred children more of a threat to society than many of them would have been if kept in the juvenile justice system. This is not to say that no child should ever be locked away. A few are too dangerous to let out of a cage. Many people in and out of the system realize that. However, throwing children away through wholesale transfer can be counterproductive.78 Attorneys seeking to prevent such transfer should consider arguing early to the prosecutor about selecting appropriate charges, rather than waiting until the child is set upon a course that could result in transfer and only then trying to get charges reduced or trying to prevail at trial.
It is important to remember that most children never become serious youth offenders. Most children who come to juvenile court don’t come back more than once, if that. Only a few hundred children in Utah keep coming back over and over for felony-level offenses, and violent felony-level repeat offenders constitute a very small percentage of the total number of offenders.79 The increase in the number of secure beds in the late 1990’s should help control these offenders, as might various local programs like the SHOCAP80 programs instituted in some counties. However, with the specter of a juvenile justice version of the Justice Reinvestment Initiative looming over the juvenile court in the late 2010’s, and the potential for JRI to do as much damage in the juvenile system as it has done in the adult system, the future of effective juvenile justice is unclear.81
Children referred to juvenile court will be screened to see whether they should be handled nonjudicially or judicially. Unless a child is factually innocent and likely to prevail at trial, she may be best off working out a nonjudicial closure agreement with a juvenile probation officer. Defense attorneys should be aware that a child loses that option if she denies her charges in order to seek a plea agreement. Children who do not want to pursue a nonjudicial resolution, or who do not qualify because of the seriousness of their offenses or because of prior offenses, will move onto a judicial track consisting of arraignment, pretrial, and trial. Admissions at arraignment or plea agreements at pretrial frequently resolve these cases. As part of disposition on admitted or adjudicated offenses a child will be subject to a regimen of graduated sanctions intended to turn her from her wayward course. Instead of being handled in one of these ways, a small number of children will be transferred to district court to be tried as adults.
In the juvenile justice system, most parties agree that winning means doing what is best for the child, for the community, and for the victims. As it happens, the three are interrelated and can often best be accomplished by an approach intended to rehabilitate the child by holding her accountable and helping her improve herself. Since juvenile prosecutors are working toward that end, the best way to manipulate them is to surprise them by doing their job better than they can. Defense attorneys who work creatively with the system to protect a child’s rights while helping her develop morally will confuse and triumph over juvenile prosecutors by beating them at their own game, to the client’s ultimate benefit.
1. J. Mark Andrus, Juvenile Court Practice, Utah B. J., October 1995, at 33.
2. This article is intended to provide some level of familiarity with juvenile justice. However, reading this article is no substitute for reading and re-reading the Juvenile Court Act, Utah Code §§ 78A-6-101 to -1404, the Utah Rules of Juvenile Procedure, and the Juvenile Court Operations provisions within chapter 7 of the Rules of Judicial Administration. (Note that in 2003 the supreme court moved some of the practice related rules in the Rules of Judicial Administration into the Rules of Juvenile Procedure, Rules of Civil Procedure, etc. Also note that in 2008 the legislature recodified title 78 of the Utah Code, completely renumbering the Juvenile Court Act. Title 78, chapter 3a references are now obsolete.) The author would appreciate notice of any inaccuracies found herein, so they can be corrected to conform to statute and rule. Only factual inaccuracies need be reported. Readers who have differing policy views should adjust their views to conform to any found in this article.
Other resources are also available. Some helpful Utah Bar Journal articles dealing with juvenile justice include: Paul Wake, Juvenile Defense in Utah, Utah B. J., July/Aug. 2007, at 30; Stephen A. Van Dyke, Whose Children are These? A Primer for Juvenile Court Practice, Utah B. J., March 1994, at 31; Hans Q. Chamberlain, What’s New in the Juvenile Court?, Utah B. J., Dec. 1997, at 38; J. Mark Andrus, Juvenile Court Practice, Utah B. J., October 1995, at 33; Joseph W. Anderson, This Is Not “Kiddie” Court, Voir Dire, Winter 1997, at 20; Scott N. Johansen, Utah Juvenile Justice System Isn’t Broken, Utah B. J., August/September 1996, at 42; Stephen A. Van Dyke, Utah Juvenile Justice for the ’90’s, Utah B. J., February 1990, at 23; Kimberly K. Hornak, A View From the Juvenile Court Bench, Utah B. J., October 1995, at 31; Katherine Bernards-Goodman, The Beginner’s Guide to Delinquency Representation, Utah B.J., February 2000, at 8; Katherine Bernards-Goodman, The Defense Expert’s Guide to Juvenile Court (SYO and Certification), Utah B.J., May 2000, at 18; Frederic M. Oddone, The Serious Juvenile Offender, Utah B. J., October 1995, at 34; Sterling B. Sainsbury, Juvenile Court, Utah B. J., October 1995, at 35; and Mary E. Boudreau and Regnal W. Garff, The Family Court Issue: A Vital Question Quietly Visits Utah’s Judicial Council, Utah B. J., June/July 1999, at 18. The last article describes a perennial debate over whether to replace Utah’s juvenile courts with family courts. Voir Dire was a biannual publication of the Utah State Bar litigation section, and was distributed to bar members as the issue of the Utah Bar Journal for those months.
Utah’s Juvenile Court Administrator published the Utah Juvenile Court Handbook 1986, and it was an excellent resource for its time. The handbook replaced a looseleaf reference, the Utah Juvenile Court Guidelines for Practice and Procedure, published in the 1970’s. Unfortunately, the Handbook is outdated and the Administrative Office of the Courts has not updated it. In 1998 Professor Wardle’s students at BYU’s law school published what is essentially a student-created looseleaf version of these earlier publications, the Utah Juvenile Court Guidebook (supplemented in 2000, with a second edition published in 2004).
Many of the juvenile justice books and treatises in local law libraries are outdated. A Century of Juvenile Justice (Margaret K. Rosenheim et al. eds. 2002) provides a good look at the history of juvenile justice. West had been publishing and updating The Law of Juvenile Court in a Nutshell. However, this book has not been published since 1984. In 2003 West published Law in a Nutshell: Juvenile Justice Administration, which is actually about delinquency cases.
The Juvenile and Family Court Journal sometimes publishes interesting articles, and the fall of 1998 and the fall of 1999 issues, celebrating the centennial of the juvenile court, provide both an interesting look at the past and a helpful hint of the future. The Juvenile and Family Law Digest provided a useful survey of recent case law from across the country dealing with juvenile and family courts, and sometimes summarized the statutory law of the states on particular topics.
The American Prosecutors Research Institute, research arm of the National District Attorneys Association, published a newsletter on juvenile justice, In Re..., which looked at a particular juvenile justice topic in each issue, also published In Re Express, which provided updates on case law and news and resources related to juvenile justice, compiled a list of prosecutor-led juvenile justice programs, and published the JUMPSTART Training and Resource Manual for Newly Assigned Prosecutors, putting these and some other resources online, including the Resource Manual and Policy Positions on Juvenile Crime Issues, and the National Prosecution Standards with its included section 92 on juvenile justice. However, APRI seems to have scaled back its juvenile justice efforts lately, and some of these resources are no longer updated, or are no longer online. The NDAA published a fine article in its magazine, The Prosecutor, in the January/February 2001 issue: “Juvenile Prosecutors Are Not Criminal Prosecutors” by Paul Wake (an online version is at http://user.xmission.com/~wake/juvenileprosecutors.html). The National Council of Juvenile and Family Court Judges published Juvenile Delinquency Guidelines (available online at http://www.ncjfcj.org/resource-library/publications/juvenile-delinquency-guidelines-improving-court-practice-juvenile). The American Bar Association sometimes publishes material on juvenile justice. The National Juvenile Defender Center split off from the ABA and now functions as an independent organization providing considerable information to juvenile defenders, including its Juvenile Defender Delinquency Notebook (available online at http://www.njdc.info/wp-content/uploads/2013/09/Delinquency-Notebook.pdf).
There are some internet web sites with information on juvenile justice and links to other relevant sites; the Utah sites are particularly useful: information on and home pages of Utah juvenile courts (http://www.utcourts.gov/courts/juv/); Utah’s juvenile disposition guidelines (http://www.sentencing.utah.gov); Utah’s Division of Juvenile Justice Services (http://www.jjs.utah.gov); Utah Board of Juvenile Justice (http://www.juvenile.utah.gov); Utah Network on Juveniles Offending Sexually (http://www.nojos.net); federal publications on juvenile justice (http://www.ncjrs.gov/App/Publications/AlphaList.aspx); U.S. Office of Juvenile Justice and Delinquency Prevention (http://www.ojjdp.gov/index.html); National Center for Juvenile Justice state profiles (http://www.ncjj.org/Publication/State-Juvenile-Justice-Profiles-2005.aspx); Center on Juvenile and Criminal Justice compilation of juvenile court success stories (http://www.cjcj.org/uploads/cjcj/documents/secondchances.pdf); National Council of Juvenile and Family Court Judges (http://www.ncjfcj.org/); Interstate Commission for Juveniles (http://www.juvenilecompact.org); PBS Frontline’s show on juvenile justice (http://www.pbs.org/wgbh/pages/frontline/shows/juvenile/); PBS Frontline’s show on “little criminals” (http://www.pbs.org/wgbh/pages/frontline/shows/little/); the National Juvenile Defender Center (http://www.njdc.info); the American Bar Association’s juvenile justice web page (http://apps.americanbar.org/dch/committee.cfm?com=cr200000); Utah Juvenile Defense, a summary version of this article (http://user.xmission.com/~wake/utahjuveniledefense.html), and the Utah Juvenile Defense video (http://user.xmission.com/~wake/utahjuveniledefensevideo.wmv). For a different sort of look at juvenile justice, you might try Pictures for a Juvenile Court Calendar (http://user.xmission.com/~wake/juvenilecourtcalendargraphics.html), and its links to videos, or The Willow Project (http://user.xmission.com/~wake/thewillowproject.html). There will be no link here to the two scoundrels who each stole this article and reposted it online under their names, albeit with some tinkering. See also note 54 infra.
3. Juvenile court deals with two general areas: delinquency cases on the one hand, and dependency, neglect, and abuse cases on the other. This article deals only with the delinquency-related aspects of juvenile practice. Delinquency cases are dealt with separately from child welfare cases; the former involve the county attorney (in Salt Lake County, the district attorney) and defense attorneys, while the latter involve the attorney general (on behalf of DCFS—the Division of Child and Family Services), guardian ad litem (representing the child), and family law attorneys. Status offenses—behavior that is only illegal because of the age of the offender—are technically a third category, but in practice are rolled into one of the first two categories depending on their nature. Ungovernability and truancy are typically handled by DCFS and school district officials, respectively. Status offenses involving delinquency, such as curfew, tobacco, and alcohol charges, are dealt with by county attorneys much like other delinquent acts. The practical difference between status offenses and other delinquent offenses is that status offenses do not result in detention placements and do not count in one’s offense history when figuring one’s placement on the disposition assessment matrix. As it happens, the impact of status offenses on a child and on her family and community can be severe, so juvenile judges should be able to treat most status offenses the same as other offenses. However, states that want federal juvenile justice grants have had to minimize the importance of status offenses to get those grants, because of a misguided federal law passed in 1974 (the Juvenile Justice and Delinquency Prevention Act).
Regarding the role of attorneys in the juvenile justice system, one public defender explained that defense attorneys are there to protect a child’s rights, while GALs are there to protect a child’s interests (GALs may appear at delinquency hearings, but they aren’t supposed to act as defense attorneys, and they sometimes have the sense to know that helping children get away with things creates twisted human beings). Another public defender described the difference between defense attorneys and prosecutors by referring to a box-shaped children’s toy with geometric holes in the sides, into which a toddler will try to insert similarly shaped plastic blocks: given such a toy, a defense attorney will quickly put all the blocks in the correct places, while a prosecutor will spend hours trying to hammer a round peg into a square hole. As a prosecutor, the author believes that this characterization is not 100% correct. Nor is the “bird of prey” excerpt about prosecutors from the book “You Are Going To Prison.”
4. In fact, juvenile court proceedings are legally considered civil proceedings, and adjudications are not convictions (except for traffic offenses). Utah Code § 78A-6-116. Legal standards applicable to juvenile court are not always as clear as one might expect. For example, until 2012 there was no juvenile competency statute (the normal adult competency standard was used, although one might wonder what competency has to do with a juvenile justice system created on the assumption that because children are not as competent as adults they should have a different system; in 2012 the legislature enacted Utah Code § 78A-6-1301 through -1303, providing a means for a threshold determination of whether a competency motion should be considered, and if that showing is made, providing a process for a competency evaluation, and for attainment of competency if needed, and limiting placement options within the Department of Human Services during the attainment process unless there is some non-competency-related basis for a non-detention placement). Also, since children do not—in most cases—commit “crimes” but rather commit offenses that would be crimes if committed by adults, it is sometimes unclear which parts of the Utah Code discussing “crimes” apply to children (in 2000 the Utah legislature finally amended Utah Code § 78A-6-116 to make it clear that juvenile court adjudications count as prior convictions for purposes of enhancing penalties in juvenile court). Part of the fun of juvenile practice is working out sensible and agreeable ways to operate in these gray areas. What isn’t as fun is watching a defense attorney get cut off at the knees for blustering in waving handfuls of forms applicable only to district court proceedings, wailing about a preliminary inquiry supposedly being a violation of his client’s rights, or otherwise posturing for a client who doesn’t realize how much such antics are eroding her position. In most of the state the juvenile justice system still acts like a juvenile justice system, and criminal defense attorneys who bring an overly legalistic and combative approach to juvenile practice are unlikely to be effective because no one will want to work with them (defendant’s parents who are blind to the obvious, victims demanding a pound of flesh, and anyone else who has lost a sense of balance may similarly have difficulty at juvenile court—appearing rabid is not a productive way to be taken seriously).
5. Judge Van Dyke does a better job than I of explaining the importance of juvenile justice. See Van Dyke, supra note 2. The statutory purposes of the juvenile courts are described in Utah Code § 78A-6-102(5).
6. Through In re Gault and its progeny, the U.S. Supreme Court demanded that juvenile courts provide many of the same due process procedures in juvenile court that are available to adults in criminal court. Such decisions ultimately allowed some law or order legislatures to more easily decide that if children were going to have adult rights, they should face adult responsibilities also (in the form of punishment as adults). In Utah, a few defense attorneys have done much to drive the juvenile justice system in the direction of being more like the criminal justice system. This has not been a positive development for children.
The rights of children who are the subject of delinquency petitions are listed in Rule 26 of the Utah Rules of Juvenile Procedure, and include the right to appear and defend personally or through counsel, the right to receive a copy of the petition, the right to testify, the right to be confronted by the prosecution’s witnesses, the right to subpoena one’s own witnesses, the right to counsel at all stages and the right to appointed counsel if indigent, the right to avoid self-incrimination, and the right to appeal an adjudication.
7. Juvenile offense rates in Utah have declined dramatically since the early 1990’s.
8. The “balanced approach” describes the mindset of most people in juvenile justice. Admittedly, some statutory changes have de-emphasized rehabilitation in favor of punishment in the name of community protection. However, a rehabilitated child is the safest child the court can return to the community. Note that the competency aspect of the balanced approach does not refer to competency to stand trial, but more generically to idea that children should leave the juvenile justice system more capable than when they entered it.
Some people confuse so-called “balanced and restorative justice” with the “balanced approach.” BARJ is an oxymoron created by restorative justice’s proponents, who wanted to shoehorn the victim-focused restorative justice concept into the popular balanced approach. In doing so they unbalance the balanced approach by making concern for victims more important than either community protection or competency development. More recently, some other people who focus on making juvenile court as minimally intrusive as possible have latched on to the restorative justice label and applied it to their efforts.
Speaking of victims, one abomination wrought by the juvenile justice system involves people who are penalized for getting a protective order. If, instead of waiting for disposition and asking for a no contact order as part of delinquency proceedings against a perpetrator, a child victim’s parent seeks an immediate protective order (which is a separate proceeding), the court does not charge a filing fee since protective orders are supposed to be readily obtainable and are therefore free. However, after issuing a protective order and setting a hearing on whether to extend that order, the juvenile court may appoint a guardian ad litem. Victims are often unaware that a GAL may show up at the hearing and then ask the court to bill the victim for attorneys fees (and at a rate that is considerably higher than their actual pay). Statutorily, GALs are supposed to be supported by taxes, although reference to that provision isn’t likely to show up in their motions. There are exceptions allowing for fees, but court paperwork sometimes gets this backward by indicating that awarding attorneys fees is the default position. This practice of billing victims large amounts after the fact is a trap that those seeking protective orders should be aware of. Even requiring the victim and the perpetrator to share the cost of the protective order is wrong, especially considering that the order may impose joint and several liability. It is astonishingly cheesy that some GALs are re-victimizing children and their families by claiming that the legislature wants protective orders to cost victims substantial amounts of money.
Unfortunately, these occasional missteps are not the worst things victims suffer in the system. One judge’s on the record statements that “victims are the least of our worries” and that prosecutors are “superfluous” reflect a view held among some juvenile judges that victims are a bothersome obstacle to protecting delinquents from the consequences of their actions. Indeed, the court’s general counsel has told the court’s own victim coordinators that they should not tell victims what is going on with a case if the victims were unable to attend a hearing (this leaves one wondering what those personnel are allowed to do at all).
Of course, at preadjudication stages we are speaking more of alleged victims than of victims, there having been no legal determination yet on the facts. And admittedly, some supposed victims just aren’t—mothers of boys who start a fight but lose it need to realize that their child isn’t a victim but just a recipient of timely justice, and parents of girls who did not draw a line and hold to it need to understand that regret isn’t rape.
9. Utah Code § 78A-6-103 describes the juvenile court’s exclusive jurisdiction in delinquency matters, as well as over other matters not discussed in this article such as ungovernability, truancy, and situations of abuse, neglect, and dependency. Utah Code § 78A-6-102 points out that the juvenile court is of equal status with the district courts. Utah Code § 78A-6-106 adds that the juvenile court can issue search warrants, subpoenas, and investigative subpoenas just as can other trial courts. Aside from most traffic offenses, and a few serious offenses tried in district court, if a child commits an offense the juvenile court will have jurisdiction over the matter. The juvenile court can try these cases after the child turns eighteen, as long as the minor is not yet twenty-one. Jurisdiction of the juvenile court can continue past the twenty-first birthday for purposes of enforcing preexisting court orders regarding fines and restitution. Utah Code § 78A-6-103. People who committed offenses when children, temporarily escaped justice, and turned twenty-one before juvenile court adjudication are dealt with in district court if the statute of limitations has not run on their offenses (this is because being handled in juvenile court is not a fundamental right, but a privilege allowed by statute only to minors who fall within the statutory jurisdiction of the juvenile court; other cases default to the court of general jurisdiction). There are concurrent jurisdiction provisions in Utah Code § 78A-6-104 pertaining to adults still under the jurisdiction of the juvenile court. Cases improperly filed in justice or district court must be transferred back to juvenile court. Utah Code § 78A-6-601. Some traffic cases handled in justice or district court can be transferred to juvenile court for post-judgment proceedings when the minor is in contempt for refusing to pay a fine, restitution, or to do compensatory service. Rule of Judicial Administration 4-110; Utah Code § 78A-6-107. In late 2003, rule changes clarified responsibilities for coordinating cases pending in both juvenile court and district court; see Utah R. Juv. P. 14, Utah R. Crim. P. 39, and Utah R. Civ. P. 100. Under Utah case law, getting married as a minor does not remove a child from the jurisdiction of the juvenile court, since jurisdiction is age-based. 2008’s S.B. 236 multipurpose legislation supposedly only clarified juvenile court jurisdiction, and made other technical changes, but the juvenile justice-related part of that bill actually stripped from the juvenile courts jurisdiction over most traffic offenses and a number of other offenses. In 2010 the legislature allowed justice courts to transfer some of those cases to juvenile court, with the concurrence of the juvenile court judge. See Utah Code § 78A-6-103(2), Utah Code § 78A-7-106, and Utah Code § 78A-5-102(9).
10. Utah Code §§ 78A-6-1001 to -1003; Utah R. Juv. P. 38. Adults can be tried in juvenile court for selling alcohol to minors, failing to report child abuse, harboring a runaway, misdemeanor custodial interference, contributing to the delinquency of a minor, and failure to comply with certain compulsory education requirements. However, except for compulsory education violations, see infra note 25, adult offenses will usually be tried in district court or in justice court. Until 2012, juvenile court had exclusive jurisdiction over compulsory education violations, but now it appears that a legislative change made jurisdiction concurrent. Unfortunately, prosecutor-driven changes made to the contributing to delinquency statute by the 1999 legislature, meant to prevent possible Shondel problems, inadvertently curtailed the reach that the contributing to delinquency statute had under State v. Tritt, 463 P.2d 806 (Utah 1970), and State v. Krueger, 975 P.2d 489 (Utah Ct. App. 1999).
11. Utah’s Juvenile Courts (pamphlet published by Administrative Office of the Courts).
12. Since many delinquency cases are handled nonjudicially, and since the abuse, neglect, and dependency cases take a disproportionate amount of time, a juvenile judge’s in-court time might be divided more evenly between delinquency and dependency cases.
13. Utah Code §§ 78A-6-602 to -603; Utah R. Juv. P. 14. Technically, anyone can refer a child to juvenile court. (Apart from the normal statutory process, a child with a sense of humor could perhaps even use the Internet Self Arrest Form (http://www.eastpointpolice.org/SelfArrestForm.htm) to begin the process of referring herself.)
14. Citable offenses are described in Utah Code § 78A-6-603(6), and include such things as misdemeanor-level offenses at the class B level and below. For certain citable offenses, bail can be posted and forfeited with appropriate consent. See Utah R. Juv. P. 30 (this rule also allows a juvenile court district to specify offenses for which an appearance or additional bail is required). Citations must be filed within five days or must include a written excuse for being tardy.
15. Utah Rule of Juvenile Procedure 14(a)(2) provides a recourse for those who refer a child and are dissatisfied with the juvenile probation department’s action (or inaction).
16. It is unlikely, of course, that five or six-year-olds would be referred, but referrals of nine and ten-year-olds are not completely unheard of. There are some age related limits to what the system can do in terms of photographing, fingerprinting, or doing HIV screening of children. Utah Code § 78A-6-1104; Utah R. Juv. P. 27; see infra note 50; see also Utah Code § 76-5-502. There are also practical limits to when police can question children, since any self-incriminating statements made by a child under the age of fourteen without a parent present when the child waives her rights are probably inadmissible as evidence. Utah R. Juv. P. 27A. Children under ten do not go to detention, and children under twelve do not go into Juvenile Justice Services custody. Instead, their custodial needs would probably be met by DCFS if out of home placement is necessary. Very young offenders are handled in much more of a treatment mode than a punitive mode. Occasionally an attorney will become confused by the statutory provision saying children under fourteen cannot be charged criminally, and will think that means that the juvenile court cannot deal with delinquents under the age of fourteen. No, that provision refers to crimes charged by information or indictment, see supra the “Trying Children As Adults” section, not to petitions alleging delinquent offenses that would be crimes if committed by adults. See also note 4 supra. Although not directly relevant to juvenile courts, in 2015 the Utah Court of Appeals held in a civil case that children five and older can be held civilly liable for negligence in civil litigation.
17. Utah Code § 78A-6-112. See infra note 50 for information on reporting offenses to school districts.
18. In real life, children are sometimes simply released at the scene, but the Juvenile Court Act does call for release to be made to a parent, after the signing of a promise to appear. If a child is picked up because a judge issued a bench warrant or pick up order pursuant to Utah Code § 78A-6-111 and Utah Rule of Juvenile Procedure 39, the child will go to detention. See also Utah R. Juv. P. 51 (providing more information on pick up orders) and Rule of Judicial Administration 4-701. The court can have adults apprehended in certain circumstances if they don’t bring their child to court.
Parents sometimes wonder why the police question children without a parent being present. Nothing in Utah law requires parental permission for the police to talk to a child, and it would often be impractical to delay investigations to look for a parent, especially when the child is just a witness. Children under fourteen being questioned about their own offenses are presumed incapable of intelligently waiving their rights unless a parent is present at the time the child waives her rights, so it is usually foolish to question suspects under fourteen without a parent’s permission because any confession would likely be inadmissible at trial. Utah R. Juv. P. 27A. There are specific limits on questioning children who are already in detention (see supra note 16, and infra notes 22 and 41). Utah Code § 78A-6-1111(1)(a) allows a parent to invoke a right to counsel on behalf of a child at any stage of judicial proceedings, and that might suggest that a parent can invoke a right to counsel earlier. In general, though, unless a child lawyers up, the police can talk to her without first getting parental approval. Note the decision in State v. Bybee, 2000 UT 43, 1 P.3d 1087, allowing use at trial of a post-waiver confession made by a fifteen year old who had asked for a parent to be present during his interrogation, but was refused. 2010 legislation said that for a child in DCFS custody who also has a guardian ad litem, DCFS cannot consent to an interview unless the GAL also consents. Unfortunately, that legislation did not distinguish between interviews of suspects and interviews of witnesses. Of course, if adult consent is not required in the first place due to the child’s age, the GAL provision should not apply (although there is some dispute over that). Also, since the 2010 provision is buried in title 62A, chapter 4a, it looks more like direction to DCFS than a constitutionally required command to law enforcement to which an exclusionary remedy would apply, but that probably won’t stop some judges from inventing one.
19. Utah Code § 78A-6-112(3).
20. Utah Code § 78A-6-112(4).
21. Utah Code §§ 78A-6-112(5) and -113; Utah R. Juv. P. 6. For a specific description of those offenses for which detention will hold a child brought in by the police, see Utah Admin. R. 547-13-1 to -13 in the Utah Administrative Code. To oversimplify, those rules allow holding a child charged with committing any felony-level offense or any of the specifically listed misdemeanors; any child charged with committing any three non-status offenses; and escapees, fugitives, and runaways (before 2006 there was a “holdable offenses list” consisting of most felonies and a few misdemeanors; the new rule now includes all felonies and specified misdemeanors, and also a few other categories of offenders). Coincidentally, officers who bring a child to detention who has not committed a holdable offense sometimes charge her with three minor offenses. If a child is not appropriate for detention, detention staff are supposed to find another placement. Utah Code § 78A-6-112(5)(d). Warrants for immediate custody can issue if it later becomes apparent that a child who was not originally placed in detention should be there. Utah R. Juv. P. 7 and 7A. Children can only be held in adult lockups under limited circumstances, which include being sixteen or seventeen and a danger to other children in detention (as determined by the judge). Utah Code § 62A-7-201(2001); Utah Code § 78A-6-113(8) to -(11); Utah R. Juv. P. 35. Utah Administrative Rules 547-7 and -3 have provisions dealing with juvenile holding room standards at police stations, and with juvenile jail standards. In 2011, the legislature determined that minors fourteen or older arrested and placed in detention preadjudication will be photographed and fingerprinted by detention staff if the minors are alleged to have committed offenses that would be felonies if committed by adults. Utah Code § 78A-6-1104. Note that if a child in detention turns eighteen or if a child is caught after turning eighteen and needs to be held, the minor will likely go to jail absent a court order requiring detention to hold the minor there. The minor will still be handled in juvenile court on the underlying offense, and the system will need to coordinate getting the minor to a detention hearing to determine whether the minor should be held or released, and to other hearings. See infra notes 63, 69, and 75 for specific information on initial detention of minors who may be tried as adults.
22. Utah Code § 78A-6-113(4)(a); Utah R. Juv. P. 9 (describing detention hearing procedure); Utah R. Juv. P. 11. Factors allowing a judge to keep a child in detention include such things as risk of flight, seriousness of the offense and threat to public safety, and inability to return the child to her family. Once a detention hearing is held, only the judge can release a child from detention. Detention review hearings should be held weekly for children kept in detention preadjudication. The rights of a child held in detention are listed in Utah Rule of Juvenile Procedure 8 and include the right to phone home and to have parental, legal, and religious visits. The rule also prohibits people who are not probation officers or detention staff from interviewing the child about offenses chargeable against the child without first obtaining parental permission and a waiver of Utah Rule of Juvenile Procedure 26 rights. For a child placed in detention on a class A misdemeanor-level offense or above, law enforcement must submit a formal referral (apart from the request for detention an officer made upon taking the child to detention) within three working days, although missing this deadline is not a basis for dismissal. Utah Code § 78A-6-602. A petition must be filed in five days and arraignment held within ten days, although written requests for extensions of time may be granted. Utah R. Juv. P. 11. Most children don’t go to detention, and those who do don’t stay long. In 2016, the legislature’s horror over handcuffs led it to decree that for children that a judge has already decided should remain in detention because they are dangerous or a flight risk, when such children are brought to juvenile court, going from a cell to a cage in a car to a holding cell at court, for the few minutes they are in court they will be unshackled, because dangerous children and flight risks will somehow be traumatized by having handcuffs on while standing in detention duds in a largely empty courtroom with a judge who already knows they’re in DT.
23. Utah Code § 78A-6-113(12). The exceptions allowing bail are for out-of-staters, or following arrest for failing to appear for a citation.
24. Juvenile Justice Services will check on the child’s compliance with home detention. If a child is not released from home detention or is released on other conditions and a petition is not filed within thirty days, the order automatically terminates. Utah R. Juv. P. 11. Some areas of the state have detention diversion programs apart from home detention. Such programs may, for example, monitor children after school and on weekends, but let them return home at night. When home detention is used for a weapons offense or a violent felony-level offense, the court is required to notify local law enforcement and the child’s school. Utah Code § 78A-6-113(4)(e). If a child is released to a predisposition detention alternative program, she need only be reviewed twice a month rather than weekly, under a 2009 change to Rule 9.
25. This article does not deal with truancy because truancy matters within juvenile court are often handled by school district truancy officers rather than by juvenile prosecutors, and attorneys are seldom involved. Defense attorneys should take note, though, that 2007 amendments to the compulsory education statute made it a class B misdemeanor for a parent to knowingly or recklessly fail to enroll a child in school, or after being served with a notice of compulsory education violation to either fail to meet with school authorities or fail to prevent a child under fourteen from having more than five additional unexcused absences. Parents violating these provisions can be prosecuted in juvenile court. See Utah Code §§ 53A-11-101 to -106. The 2007 legislature also declared it unlawful for students to engage in disruptive behavior, and allowed schools to issue disruptive student behavior citations, which could be referred to juvenile court and handled in some unknown manner. See Utah Code § 53A-11-910.
26. Utah Code § 78A-6-602(c); Utah R. Juv. P. 14; Rule of Judicial Administration 7-301. A child’s computer record used to be called a “Form 5,” since the old Juvenile Information System used that label. That label will probably last for some time, although with the transition to the CARE system (see infra note 33) such a record is now called the “case history.” The intake probation officer can also ask to close the case without taking action. Note that the fact the person doing intake is a probation officer does not mean that a child talking to the intake PO is on probation. A child is only placed on probation by a judge, as part of judicial disposition of a case. Children who are placed on probation will be added to the supervision caseload of a PO assigned to that task.
27. Utah R. Juv. P. 14, 15; Rule of Judicial Administration 7-301. The probation officer must tell the child and her parents that the preliminary inquiry is voluntary, that anything they say during the preliminary inquiry cannot be used against the child to establish the truth of the allegations at trial (but may affect a dispositional recommendation), and that they may have an attorney present at the preliminary inquiry. The probation officer cannot attempt nonjudicial adjustment if the child denies committing the offense. Efforts to come up with a written nonjudicial adjustment agreement cannot extend beyond three months without judicial approval. Utah Code § 78A-6-602(2)(c). Part of the preliminary inquiry may include a risk assessment to estimate the child’s likelihood of reoffending. Utah Rule of Judicial Administration 3-306 allows a child (or her parents) to have an interpreter from the intake stage onward.
28. Utah Code § 78A-6-602(d). This section limits nonjudicial financial penalties to no more than $250.00 (for some time the maximum was $100.00; after the maximum was raised to $250.00, and as court budgets tightened, it occurred to some trial court executives that since these amounts stay in the court system, probation officers should increase the customary penalties imposed on children). See also Utah R. Juv. P. 14, 15.
29. Probation officers may tell a child that nonjudicialing a case will keep them from getting a record. This is true, in that there will be no record of an adjudication by the court (and only such adjudications count toward the offense history in terms of placement on the disposition assessment matrix if the child reoffends), and Utah Rule of Juvenile Procedure 15 specifically states that nonjudicial adjustment does not count as an official juvenile record of court action or disposition. Confusing this point somewhat, 2002 legislation provided for expungement of “records” of nonjudicial adjustments, but that appears to be a use of the word “record” in a generic sense. See infra note 61. Defendants should be aware that the fact that a nonjudicial adjustment took place will show up in the child’s file at juvenile court, and may affect the mind-set with which juvenile probation approaches any future offenses committed by the child. If for no other reason, the court will track nonjudicial adjustments so that a child does not get too many such breaks without being sent before a judge. Also, judges can consider prior nonjudicial adjustments when fashioning disposition for a subsequent offense.
30. Generally, though, this oversimplified view of the system does represent not only how juvenile justice is done in Utah, but also in most of the united States. See Paul Bergman & Sara J. Berman-Barrett, The Criminal Law Handbook: Know Your Rights, Survive the System chapter 25 (Juvenile Courts and Procedure) (1999).
31. Youth courts, also called teen courts or peer courts, were operating in parts of Utah before 1999, but in 1999 the legislature thoughtfully formalized and bureaucratized the youth court system. See Utah Code §§ 78A-6-1201 to -1209. Children who are offered the chance to go to youth court instead of juvenile court are usually better off going to youth court than hiring a defense attorney to fight things out in juvenile court. In 2002 the legislature amended those provisions to allow some youth court handling of eighteen year olds who are still in high school (youth courts sometimes handle school-related misbehavior in addition to delinquency matters).
32. Utah Code § 78A-6-110; Utah R. Juv. P. 16; Utah R. Juv. P. 29. Juvenile courts can transfer a case between Utah judicial districts when appropriate. The Interstate Compact on Juveniles allows transfer of probation or parole supervision between states, and provides for the return of escapees and runaways. Those states that have signed the Interstate Rendition Amendment (Utah and most nearby states have signed the amendment) can requisition the return of a child who is charged with an offense but has not yet been adjudicated. The Interstate Compact Administrator at the Administrative Office of the Courts, and the administrator’s counterpart in the other state, can coordinate these juvenile quasi-extraditions. See Utah Code §§ 55-12-100 to -116 (but note that the compact was repealed and reenacted in 2005; the procedure described above is the method used under the old compact, and a new set of rules and a new bureaucracy to implement them could not be created until 35 states adopted the new compact, which occurred in August of 2008 when the 35th state signed on, so newer procedures will be going into effect). Legislation from 2002 allows the juvenile court to impose restitution to cover expenses incurred by governmental entities in returning a child to the state. The normal extradition process would be followed for a child being direct filed on as an adult.
33. Utah Code §§ 78A-6-108 and -109 and Utah Rule of Juvenile Procedure 3 describe the requirements for drafting a petition and summons. Service of a summons is supposed to occur at least forty eight hours before the date of appearance, although a child can waive time and notice. Petitions can be amended anytime during the course of the proceedings to conform to the evidence. Utah Code § 78A-6-1102.
Until late 2005, petitions usually included an alphanumeric “acronym” consisting of six characters, such as “POTPS9.” The juvenile court used these acronyms in its computer system to describe each charge. The first few letters bore some resemblance to the name of the charge, and the last letter or number somewhat cryptically described the charge level. For example, “POTPS9” meant possession of marijuana at the third degree felony level, a public order offense rather than a person or a property offense. Because the acronym list was never comprehensive (and got less complete every year), occasionally an “other offense” code was used. People at juvenile court tended to focus on acronyms rather than on a petition’s charging language, and the software that tried to calculate disposition matrix placement looked solely at acronyms. Because of this it was important to make sure that the acronym of the original charge or of any amended charge was correct on the court’s computer, since the acronym in the computer could have more of an effect on the case than the documents in the court file. Unfortunately, printouts of the rather lengthy acronym lists were not widely available, were often outdated, and were not particularly self-explanatory. Defense attorneys savvy enough to understand the importance of acronyms would often need to ask for help in understanding the acronyms. In late 2005, as part of a gradual transition to the new CARE (Courts and Agencies Records Exchange) computer system, use of acronyms was supposedly going to be replaced by citations to the relevant code sections themselves as the means by which offenses are described, and CARE was supposedly going to eliminate acronyms entirely. However, some reliance on acronyms as the quasi-official description of what a child is charged with continued. In addition, it appears that as acronyms are abandoned, they are being replaced with “short descriptions” drafted by the Administrative Office of the Courts, rather than by citations to the Utah Code, which may be a difference that makes little difference. Unfortunately, it can be difficult or impossible to find a short description for some existing code provisions due to the kludgy nature of CARE (another illustration of the kludge: CARE is accessed through web browsers, so one would assume any browser would work since all competent software designers code to web standards, but CARE was not designed to work in any modern web browser, only on IE6 for Windows, so consequently it would not work properly on IE 7 through 11 or Edge, and not on iPads at all, although in 2015 and 2016 that situation began to improve). See also supra note 26.
The Administrative Office of the Courts had a contest to name the current juvenile court computer system, and a PO in Provo thought up “CARE.” It is good that he did, because if he had not gained fame for thinking of that name, he would still be best known for having literally shot himself in the foot once while out hunting.
34. Some areas of the state use juvenile court commissioners to take some of the case load off of juvenile judges. This is unfortunate, since in those areas the child’s offenses can put her before either of two people, and that undercuts the one child, one judge concept that allows a juvenile judge to best become familiar with a particular child’s situation. Rule of Judicial Administration 7-102. Utah Rule of Juvenile Procedure 28 deals with scheduling children’s cases.
35. This creates an interesting situation when the child waives arraignment based on what the probation officer told her she was referred for, and the county attorney subsequently screens and petitions the charges at a different level.
36. The rights the judge must explain at arraignment include the right to further time if there was a problem with service of process, notice of the allegations in the petition, an explanation of the right to counsel and the right to appointed counsel if indigent, additional time to consult with counsel before entering a plea, notification that the child need not incriminate herself, and a description of the prosecution’s burden of proof.
37. Arraignment should be held within thirty days of filing the petition unless the child is in detention, in which case it should be held within ten days (unless the court extends the deadlines for good cause). Utah R. Juv. P. 24. Pleas are governed by Utah Rule of Juvenile Procedure 25. Rule 25 says that pleas must be entered voluntarily and with knowledge of the possible consequences, after waiver of the right to counsel (if unrepresented), wavier of the right to trial (including waiver of the right to testify, subpoena witnesses, and cross examine opposing witnesses), and waiver of the right against self-incrimination, and that there must be a factual basis for the plea.
Historically, many juvenile judges did not waste time with detailed adult-style plea colloquies, but in the wake of the In re K.M. court of appeals decision, grafting Utah Rule of Criminal Procedure 11 case law onto juvenile rule 25, there was some pressure to change. When the supreme court got In re K.M. in 2007, it did not mandate shoehorning Rule 11’s detail into juvenile court procedure, but it did decide—without citing to a constitution—that as a matter of constitutional law a minor entering an admission (as opposed to losing at trial) must understand the nature and elements of her offense and demonstrate that understanding at a plea colloquy. There was a better reasoned concurrence in the result that dissented as to the majority’s reasoning. That opinion cogently stepped through the purposes of juvenile court and described the legal acumen of the average child. Then it wisely argued that juvenile courts should expect children to understand that they broke the law and need to reform, but that sometimes it is enough just for a parent or guardian to fully comprehend the elements of the offense. All that should be required is that admissions be made on adequate facts. Unfortunately, that view did not prevail. In the aftermath of K.M. there were some 2008 additions to Rule 25. Because of the court’s dithering on whether kids are kids, those changes were not the simple and commonsense revision that would have been best: adding to the rule “that the minor, or the minor’s parent or guardian on behalf of the minor, understands the nature and elements of the offense.” Instead, because of K.M. calendars have been pushed back to allow for interminable plea colloquies in which juvenile judges effectively attempt to establish that children are as competent as adults, prosecutors are increasingly forced to clog the docket with trials that could have been settled in the child’s best interest with an admission to a lesser charge that might not precisely fit the facts, and more children are denied no contest or Alford pleas by judges confused about what is still permissible. None of this helps children quickly connect bad behavior with consequences. K.M. leaves one wondering why we need a separate juvenile justice system if it is going to be indistinguishable from the criminal justice system.
38. Utah Code § 78A-6-117; Utah R. Juv. P. 44. The jurisdiction of the court may continue until the child turns twenty-one unless terminated by court order, commitment to a Juvenile Justice Services secure facility, or commencement of adult proceedings (and can continue past the twenty-first birthday for purposes of collecting fines and restitution). Utah Code §§ 78A-6-118 and -120. 2007 legislation requires juvenile judges in cases in which there is an unpaid fine or restitution to reduce the relevant order to a judgment and to transfer responsibility for collection to the Office of State Debt Collection before terminating jurisdiction over a child.
39. Utah Code § 78A-6-605. Before preparing a dispositional report, a probation officer may discuss and coordinate possible dispositions at a multiagency staffing meeting. Sometimes people get a little too big for their britches at such staffings, and try to determine dispositions rather than discuss possibilities; a judge can certainly ignore whatever ideas a multiagency staffing comes up with. Probation officers may also use other means, such as a psychological evaluation, to fine tune a dispositional recommendation.
40. In 1999 the Legislative Auditor General drafted a deeply flawed and potentially destructive audit of the juvenile justice system, criticizing how the disposition guidelines had been applied, and suggesting, among other things, consolidating juvenile probation and Youth Corrections; several months later the Legislative Auditor General released a another audit criticizing the juvenile court for a supposed lack of timeliness in handling cases. The 1999 audit came on the heels of a very helpful spurt of funding in 1997 that added new probation officers and secure beds in order to make the new disposition guidelines possible, and created concern that the legislature might reverse course, follow the legislative audit’s recommendations, and destroy the progress it had recently made when it strengthened juvenile probation and the entire regimen of graduated sanctions. In reaction to the audit, personnel within the juvenile justice system had to divert considerable energy into trying to comply with the audit’s recommendations to the extent reasonable, and to otherwise contain damage. As of the end of the 2001 legislative session the legislature had spared the juvenile court from such changes. However, in October of 2001 the Legislative Auditor General released a follow-up audit prodding the legislature for further action. In 2002 the legislature put youth receiving centers under Youth Corrections control, but otherwise made no major changes (youth receiving centers/youth service centers had been jointly operated by, depending on area, some combination of Youth Corrections, DCFS, and mental health or other agencies; this change was aimed at decreasing DCFS’s role). In 2003 the legislature decided that on July 1, 2004 the Division of Youth Corrections would be renamed the Division of Juvenile Justice Services. The stated reason for the name change was so that families of ungovernable and truant children taken to youth receiving centers could feel good about the name of the organization providing them services.
41. A public defender would typically enter the case at this point (although in some places a public defender might be available earlier in the process). Public defenders are appointed based on a assessment of the family’s financial status, not just the child’s (there is Utah appellate case law on this question). Utah Code § 78A-6-1111 describes the right to counsel. Note that a child fourteen or older is somehow presumed capable of intelligently waiving her right to counsel. Utah R. Juv. P. 27A; see supra note 18. Utah Rule of Juvenile Procedure 53 deals with appearance and withdrawal of counsel; additional formal requirements for withdrawal were added in 2003. Utah Rule of Juvenile Procedure 54 deals with continuances (one continuance by stipulation should be readily available from the court clerk when appropriate). As it happens, many children coming to juvenile court do not have an attorney, since an attorney is seldom necessary for cases being handled nonjudicially, and for cases being handled judicially hiring a lawyer often isn’t cost effective if the child isn’t poor enough to qualify for a public defender for free. And there’s the fact that defense attorneys can easily do as much harm as they do good, and that the worst defense attorneys in the state are clogging courts with expensive and usually pointless legal shenanigans like frequent competency challenges, instead of working as a team to resolve cases in ways that actually help children (it does not help children to lose on all charges when a plea agreement would have been more appropriate, but plea agreements either don’t happen or get worse when defense attorneys decide to gratify themselves by tilting at windmills instead of dealing with reality). There is a move afoot to provide free attorneys to all children coming to juvenile court, and some judges have taken a liberal view of their imagined power to use taxpayer dollars to provide attorneys for non-indigent defendants. This effort tends to go hand in hand with the notion that the more legalistic the system is, the more “rights” will be protected (these ever expanding “rights” seeming to come from nowhere, or perhaps from invisible clauses within a constitution, functioning primarily to allow a certain type of defense attorney to argue that anything that would result in a client being held accountable must be unconstitutional). It is a bit ironic when judges point approvingly to Pennsylvania’s willingness to expand attorney coverage to more defendants. After all, what motivated the change in Pennsylvania was a scandal in which corrupt juvenile judges were selling kids for cash—putting children in private placements in which they did not belong, and getting kickbacks from those placements. What actually saved children in Pennsylvania was the prosecution of those judges by prosecutors who—as here—work diligently to help children. In 2015, in one of the sloppiest pieces of legislative drafting done in recent memory, the legislature decreed that children with felony charges may not waive counsel until they have been able to consult with an attorney. The language of the new law caused immense confusion throughout the state, with some judges actually deciding it meant all children get public defenders for all charges at all stages of proceedings, and some telling children they had to meet with an attorney to discuss their rights but that was all (the latter being a more correct interpretation of the wording of the statute). Apparently it is in some way useful for a child who has been advised of their rights by probation, possibly by the prosecutor, and by the judge, to also have a public defender go over the same litany before telling them that the public defender doesn’t actually represent them in the case. The legislature, of course, did not fund attorneys for everyone, so counties began announcing that non indigent children who kept a public defender past the explanation of rights stage could be required to reimburse the county for that expense, and no one had a good answer for parents who were victims of their children as to why they should be forced to pay for the legal defense of their attackers. In 2016 the legislature was supposed to fix this mess, but did not, and all we are left with is a stream of pablum from the legislation’s supporters about the Constitution (no mention which one), a document that does not actually require this legislation anywhere within its written terms. By late 2017, some people were gaining traction speading the questionable interpretation that the legislation actually guarantees an attorney for child with a felony level charge, but were still pushing for clarifying legislation. Since this legislative push is ideologically driven it doesn’t have to make sense, it just needs supporters to chant its merits, as the AOC pretty much did when it took the position that its own judges and POs are a threat to children, as are prosecutors in particular, a stand effectively taken in the 2016 child advocate of the year presentations at which the only attorneys honored for helping delinquent youth were defense attorneys, the main speaker urged the defense attorneys present to protect children from those awful prosecutors and POs and judges, and the awards presenter seemed utterly confused by why an awardee was nominated by a prosecutor.
This endnote uses the term “clerk.” In 2009, the AOC started calling court clerks either “judicial service assistants” or “judicial service representatives,” depending on whether they are in-court or out-of-court clerks. This author prefers “clerks,” and isn’t going to change.
42. Some judges have actually discouraged pleas in abeyance because they negatively affect the quarterly case management statistics that compare how rapidly each judge is processing cases.
43. See infra note 48. Defense attorneys who set a trial so that the prosecutor will have to really look at a case and perhaps realize the child deserves a break or a dismissal, should keep in mind it is also possible that when the prosecutor thoroughly studies the case the prosecutor will discover additional charges that should be filed, or realize that the existing charge should be amended to a higher level.
44. The Utah Rules of Juvenile Procedure and the Utah Rules of Evidence apply. See Utah R. Juv. P. 40 (discussing order of presentation); Utah R. Juv. P. 41 (discussing burden of proof, which in delinquency trials is “beyond a reasonable doubt”); Utah R. Juv. P. 42 (discussing exhibits); and Utah R. Juv. P. 43 (discussing evidence, and allowing narrative testimony and testimony by stipulated proffer). Pursuant to Rule 2 of the Utah Rules of Juvenile Procedure, the Utah Rules of Criminal Procedure specifically adopted by the juvenile rules apply in delinquency proceedings. This largely refers to the discovery rule, Utah Rule of Criminal Procedure 16. That rule allows the prosecution to request reciprocal discovery (a request judges can and should grant routinely in the interest of fairness and to coerce defense attorneys to prepare and perhaps settle their cases in a timely manner), and allows a court to preclude use at trial of improperly withheld evidence, including defense evidence; see also Utah R. Juv. P. 20 (discussing discovery). Note that although Utah Rule of Juvenile Procedure 2 mentions that the Utah Rules of Civil Procedure are used in status offense cases, in practice they would be used for status offenses such as ungovernability and truancy. Delinquency-type status offenses will be handled much like other delinquency charges. See supra note 33 regarding amending petitions during trial.
45. Utah Rule of Juvenile Procedure 19 deals with motions practice, and states that motions will be governed by the Utah Rules of Criminal Procedure. Remember that the criminal motions rule, Utah Rule of Criminal Procedure 12, requires motions in limine, suppression motions, and the like to be made at least five days before trial, and failing to file timely motions can cost an attorney the opportunity to seek suppression of evidence; judges should consistently enforce this rule, since holding attorneys’ feet to the fire encourages them to actually prepare their cases. Also, remember to use the correct style of caption. See Utah Rule of Juvenile Procedure 3.
Gentle reader, you are now advised to brace yourself for harsh news. In 2015, the juvenile court mandated electronic filing. Its system is different from the district court’s electronic filing system. The good news is that the juvenile court system is free. Unfortunately, that is the only good news. The juvenile court’s system is widely loathed by attorneys, who frequently go to great lengths to avoid using it because it is unspeakably bad. Because there are no words to express how awful this system is, this article will not attempt it, but if you plan to efile you would be well advised to pad your office walls first, because you will shortly be banging your head against them.
Speaking of electronic outrages perpetrated by the AOC’s IT department (the same department that once filtered out Google as an inappropriate web site), practitioners coming to juvenile court should beware of how court Wi-Fi is implemented. In 2015 the IT department began unannounced, permanent bans of devices used to access court Wi-Fi in supposedly inappropriate ways. IT would would not say how any particular machine ran afoul of its secret rules, or what offending but unfiltered web sites triggered the bans, but given that many prosecutors, public defenders, and the like who used computers and iPhones at court every day were being blocked from accessing CARE or their own databases and notes and evidence despite having not gone to any inappropriate web sites, it appeared that if someone had just brought up a news video or some other streaming media at some point, court WI-Fi stopped working for them. It took a long time to figure out why people couldn’t do their work at court, with state IT people refusing to provide any information on what was going on, just calling attorneys stupid, until the attorneys got the judiciary to intervene. Apparently our civility rules to not apply to AOC’s IT staff. To top it all off they have now concocted an excuse for rampant blocking—they claim they need to keep bandwidth free for the many people who are supposedly efiling small PDF files from within the court building, which is a facially absurd excuse.
46. Utah Code § 78A-6-114; Utah R. Juv. P. 50. In cases involving children fourteen years of age or older who have been petitioned for a felony-level offense, or for a class A or B misdemeanor-level offense and who have a prior misdemeanor or felony-level offense, proceedings are open unless the judge makes a finding on the record closing the proceedings for good cause. In an odd contrast, preliminary examinations held under the Serious Youth Offender Act can be closed upon request of either party. Utah R. Juv. P. 22(l).
47. Juvenile records consist of two parts. The legal file is the part of a child’s file containing petitions, offense histories, adjudicatory orders, and so forth. The social file contains notes of probation officers, confidential evaluations, etc. Material in the social file is always confidential. Back in the days of paper files, the social file may have been a file folder stored within the legal file’s folder, so it could be easily removed if someone needed to look at the legal file but not the social file. Electronic files now categorize documents according to who should have access, although the more such statewide schemes proliferate, the more inanity spreads: at one point someone at the AOC actually decided that prosecutors shouldn’t have access to police reports on CARE, and they don’t let public defenders check the docket for clients the court system might not yet have linked to a particular attorney. If a child is fourteen or older and is charged with an offense that would be a felony if committed by an adult, the petition, offense history, and adjudicatory and dispositional orders are open for anyone to review unless the judge makes a finding on the record closing the records for good cause. Utah Code § 78A-6-209(4); Rule of Judicial Administration 4-202.03. In another odd contrast, although law enforcement agencies can view juvenile records on their computer screens, they aren’t supposed to print the records out in physical form. Rule of Judicial Administration 7-202. In 2000, the legislature specifically authorized background checks of juvenile records as part of firearms purchasing (the legislature also clarified how a juvenile record affects one’s status as a restricted person for purposes of purchasing firearms), and in 2007 opened to the Utah Department of Health the juvenile records of some applicants for Emergency Medical Technician certification. The original idea behind confidentiality was to avoid stigmatizing children in ways that prevent them from leaving adolescence with their life chances intact. Note that Utah Rule of Evidence 609(d) discusses the admissibility of juvenile adjudications both generally and in the context of seeking to attack the credibility of a witness in a criminal trial.
48. Technically, without consent juvenile probation is supposed to wait until after adjudication to begin investigation of facts for preparing a pre-disposition report. Utah Rule of Juvenile Procedure 45. In practice, the probation officer will often try to have a report ready by pretrial, since disposition will usually occur then. See also Rule of Judicial Administration 7-302 (which terms the reports generated from preliminary inquiries “social studies”). Beginning in late 2003, Juvenile Rule 45 requires the PO (or whoever prepares the report, such as a Juvenile Justice Services caseworker) to provide copies of the report to all attorneys involved and to do so at least two days prior to the dispositional hearing. Utah Rule of Juvenile Procedure 46 allows a dispositional hearing either at the end of the hearing in which the allegations in the petition are proved, or later. Often, after adjudication judges will simply ask the PO for a written or oral recommendation, listen to anyone else who has something to add (including those who wish to share reliable hearsay statements, see Utah R. Juv. P. 46(b)), and then enter an appropriate order and have it reduced to writing.
49. Utah R. Juv. P. 44.
50. Utah Code § 78A-6-117 lists the dispositional alternatives available to the judge. In 2003 the legislature added reimbursement of reward money to the list. Surcharges under Utah Code § 73-63a-1 and § 63-63c-101 are not consistently imposed by all juvenile judges; imposition of such surcharges is not supposed to be accompanied by a reduced fine, but some judges do just declare that any surcharges will come out of the customary fine. Legislation passed in 2005 expressly allows judges to state whether a child placed in detention can receive credit for good time (a reduction in length of stay of one day for every three days served, if detention staff determine the child has behaved well while incarcerated). Utah Code § 78A-6-604. Note that apart from juvenile court disposition imposed on the child, Utah Code §§ 78B-3-108, 78A-6-1113, and 32B-16-301 make parents civilly liable for damages in certain shoplifting, criminal mischief, and alcohol purchasing cases, and section 78B-6-1603 makes hosts of illegal alcohol parties liable for certain costs. The court will report all traffic offense sentences to the Driver License Division. The court is supposed to report violent offense adjudications and weapons offense adjudications to the child’s school district; in 2004 the legislature broadened reporting requirements to include some detention hearing results, and directed law enforcement to report certain arrests to the school district. Utah Code §§ 78A-6-117(1)(b), -113(4)(e)(ii), and -112(3)(b); Utah Code §§ 53A-11-1001 to -1004. Some juvenile court personnel have informal limits on how much restitution they will try to get a child to pay, although these limits are not required by law and are at most policy. This practice reflects the view of those corners of the system where “accountability” is a dirty word, increasingly condemned in articles, emails, and meetings. Of course, there is no way to escape the fact that crime causes damage that someone has to pay for, and deciding not to make a child pay for what they did just means that an innocent victim is going to have to suffer even more, this time at the hands of the juvenile justice system.
2002 legislation required the juvenile court or Juvenile Justice Services to take DNA specimens from children fourteen years of age or older adjudicated for specified offenses (with a fee exception for those unable to pay). In 2006 the legislature expanded this list to include all class A misdemeanor-level offenses along with felony-level offenses (including any of the forgoing for which the court either entered judgment for a lower degree under Utah Code § 76-3-402 or allowed a plea in abeyance). Utah Code § 78A-6-117(4); Utah Code §§ 53-10-403 and -404. In 2011, the legislature determined that all minors fourteen or older adjudicated for a class A misdemeanor-level offense, or for a felony-level offense if they were not originally placed in detention (if they were originally placed in detention for a felony-level offense, they should have been photographed and fingerprinted at that time), shall be photographed and fingerprinted either at a law enforcement office or at a JJS detention facility. Utah Code § 78A-6-1104.
Handling juvenile sex offenses is a perennial problem, since laws designed to punish adults for preying on children do not always work well when dealing with children having sex with children. For example, it is clearly a reprehensible crime for a middle aged man to have sex with a thirteen year old girl; it is rape of a child (statutory rape). However, a fourteen year old having sex with a thirteen year old is not the same sort of evil, especially when the thirteen year old initiates the contact, but under the law it is still rape of a child (and sex between children is still destructive and self-destructive). If two thirteen years olds have sex with each other, they are legally both perpetrators and victims. That is suboptimal, but it is the law. Sort of. Or at least it was. In 2006 the legislature heard news of sex offense prosecutions in a case involving a twelve year old boy and a thirteen year old girl who had sex and became pregnant (in that case, prosecutorial discretion led to the malefactors being undercharged with the lesser offense of sexual abuse of a child; apparently the prosecutor wanted to get the defendants into the system with an adequate range of dispositional options open, but without applying the “rape” label). In response to this news, the legislature amended the Code of Criminal Procedure to allow diversions in certain juvenile sex offense cases; the Code of Criminal Procedure generally prohibits diverting sex crimes. As it happens, the Code of Criminal Procedure applies to criminal cases, and juvenile cases are not criminal cases (although certain parts of the Code of Criminal Procedure are referenced by the Juvenile Court Act and by the Utah Rules of Juvenile Procedure), so some juvenile court prosecutors already diverted some sex offenses (note that diversions in this sense are a type of plea agreement; they are available only after someone is charged). The 2006 legislature ultimately did not change the law but only attempted to make available a particular resolution for some cases. Then in 2007 the supreme court came out with State ex rel. Z.C. The court acknowledged that the plain language of the Utah Code allows for prosecuting two similarly situated underage individuals for sexually abusing each other. However, it was the view of the justices that such prosecutions are absurd, so the court held that the legislature could not have intended such a thing, and the court struck down the adjudication of the thirteen year old appellant (ironically, the court stated that its holding was “narrowly confined to the application of Utah Code section 76-5-404.1,” and by so stating the court produced the result that its holding does not apply to rape of a child charges since such charges arise under Utah Code section 76-5-402.1 rather than section 76-5-404.1, the sexual abuse section under which Z.C. was charged). Of course, the court’s holding overlooks the fact that the legislature had already reviewed the law in the context of the prosecution in question, and left the law in place, allowing such prosecutions to continue while encouraging consideration of a post-charging diversion agreement as a plea agreement (adding irony to irony, the legislative history the court cited to try to support its position was one legislator’s statement that we “probably do not want” to convict two underage youth of rape of a child—which the prosecutor in Z.C. was also trying to avoid; it is disconcerting to contemplate the picture of the court covering its decision with this mere scrap of a fig leaf, since the court’s argument that the legislative history suggests the legislature was prohibiting such prosecutions overlooks the fact that the legislature simply did not prohibit such prosecutions, or even reduce the level of the offense in such circumstances, something it easily could (and should) have done and has done in other areas of potential sexual offending, and it also overlooks the fact that the court itself has—in its own juvenile court case law—swept aside stronger statements in the legislative history when the plain language of a statute is clear (see In re. A.B., 936 P.2d 1091, 1096, 1097 (Utah Ct. App. 1997))). The Z.C. court could not imagine prosecuting children as sex offenders and thereby giving them a label indicating that they have committed “heinous” crimes meriting the most “serious penalties” for doing “extreme harm” (the court’s intervention saved the defendant from having to write a report on the effects of her pregnancy). This ignores the fact that each year many children do commit sex offenses, and the system does need to prosecute them so that the State has a hook for dealing with them. Although most of these children are not the sort of heinous individuals that adult pedophiles are, and their delinquency charges do not mean the same thing that an adult’s criminal charges mean, their actions still impact other children and must be dealt with. The court’s best solution for cases like Z.C.’s—and it was a grudging suggestion—was to charge fornication. Z.C. provides an interesting example of how an appellate decision can look like justices legislating from the bench in the stead of apparently benighted legislators, but actually be an inspiring application of the rule of law at work.
In 2017, people in Salt Lake pushed legislation to codify a broad interpretation of Z.C. That legislation should also have helped with the “rape of a child” situations involving essentially voluntary sex between children close in age, such as fourteen year olds and thirteen year olds, and with situations involving prosecution in district court of people who had offended many years before as children but not been reported while they were minors when the juvenile court still would have had jurisdiction. However, the legislative sausage making process veered off into a dismantling of Utah Code § 76-5-401 (“unlawful sexual activity with a minor”) in order to put in place Utah Code § 78A-5-401.3 (“unlawful adolescent sexual activity”). Now the age fourteen wall is broken, and there is an odd set of permutations under which some of the sexual activity between children too young and immature to be making such momentous decisions will still be discouraged by the system but at much lower charge levels (although the new statute was drafted so poorly it isn’t clear when it even applies). Thankfully, we still have tobacco citations, so the really dangerous choice to possess a cigarette still gets dealt with.
Children handled in juvenile court do not generally have to register as sex offenders. However, 2006 legislation made an exception for when someone is still in secure confinement as they approach their twenty-first birthday. Since such a person would probably have been released earlier if they were not a continuing threat, the law now requires they be registered as sex offenders so that even when released from custody there will be some level of awareness that they are in the community and are a potential problem. It is possible that a minor who moves to Utah would have to register here if they had been required to register in their original state. The effect a Utah adjudication might have on a minor moving to another state depends on that state’s registration laws. See Utah Code § 62A-7-104 and Utah Code § 77-18-12. The federal government’s Adam Walsh Act (SORNA) presumes to tell states to register at least certain juvenile sex offenders, or states could lose some federal money. Utah is still analyzing what is required by that act, and how to respond, and as of yet the legislature has not taken action to require children to spend decades registered as sex offenders. If the feds try to force the issue, it will be interesting to see if any Utah attorneys attempt to build an argument that such registration violates the state constitution (the federal act contains a statement requiring respect for contrary state constitutional law). DCFS sometimes places on the DHS licensing database children who are accused of committing sex offenses, without regard to whether those allegations are adjudicated; this may happen if, for example, CPS workers have done their own investigation of a family apart from the police/juvenile court process. Children being played on that list by DHS should receive notification of such action, and there is an administrative procees for seeking removal from that list. See infra note 61.
Utah has been developing its own standards for dealing with juvenile offenders, through NOJOS (the Utah Network on Juveniles Offending Sexually). Children who have offended sexually undergo an assessment to plug them into a NOJOS treatment level with a NOJOS approved treatment provider or to find some similar plan. There is a NOJOS web site (http://www.nojos.net) with some specific information on NOJOS levels.
As “sexting” entered the popular lexicon, describing sending cell phone pictures of one’s private parts, a few confused individuals began decrying the prosecution of such foolish and inappropriate behavior. Juvenile prosecutors in Utah properly took action against such offenders, using the pornography statutes or the sexual exploitation of a minor statute, although such cases were routinely pled down to misdemeanors and often eventually dismissed. In 2009, the legislature tried to make such behavior by minors a misdemeanor rather than a felony level offense (although repeat offenses would rise to the felony level). The legislature only changed two pornography statutes, and did not change the sexual exploitation of a minor statute.
51. Utah Code § 78A-6-606. Until 2009, a three month license suspension was optional for a first alcohol possession charge, but mandatory starting with a second alcohol charge or a first drug possession charge, when the minor was at least thirteen at adjudication (there was no unanimity of opinion among judges regarding whether a nonjudicialed alcohol counted as a first alcohol for purposes of dealing with a later, judicially handled alcohol charge). A subsequent offense would result in a six month suspension. Then the legislature decided that for offenses committed after July 1, 2009, such license suspensions will be dramatically lengthened and will apply to first alcohol possession charges also (although for first alcohol charges, and for public intoxication charges, the suspension period can be decreased if the child takes an educational series; see Utah Code § 78A-6-606): license suspension runs for a year on first judicially handled alcohol or drug possession charges, for an additional two years for a subsequent alcohol or drug charge, and until a person is twenty-one for DUI charges (this is the DUI license suspension period applicable to minors—the suspension period for adults is much shorter). Of course, the main effect of these draconian suspensions is to keep more children from admitting such offenses once they’re caught, because few people like the damage this sort of punishment does to their futures as they try to enter the job market and start a family, so prosecutors have to either clog the courts with additional trials or plead away more such offenses. This legislation was rushed through the legislature, and after prosecutors learned of it they worked to make it more moderate. In 2010 the legislature softened the license suspension period for adults who are not driving when arrested for drugs, and who complete treatment or probation, but the legislature left the longer suspension periods for minors untouched (those who claim that the suspension reductions under Utah Code § 53-3-218(2)(c) apply to minors, should note that section 218(2)(c) refers to suspension reductions under section 220(1)(c), which itself points out that section 220 does not apply to suspensions under section 219’s provisions regarding minors). In 2011 the legislature further softened suspension periods for some people under twenty-one, but not for minors under eighteen. In 2011, some people became confused when the juvenile courts posted information online about how to file a motion to shorten the period of a driver license suspension or denial, because they read that information too quickly and so concluded incorrectly that any suspension could be reduced by motion; a careful reading of that web page makes clear that it applies only to DUI and to driving with a controlled substance metabolite charges, and not to suspensions for such things as title 58, chapter 37 controlled substance possession-related suspensions (although it was not clear where the courts thought they obtained the authority to hear such motions). In 2013, the legislature allowed juvenile judges to shorten DUI-related suspensions to six months, provided certain conditions are met, while leaving in place the longer non-vehicle-related possession or consumption suspensions for children—in other words, driver license suspension periods were worse for children with a bit of marijuana in their bedroom than for children driving after smoking pot. In 2014 the legislature tinkered with suspension again, allowing two year alcohol suspensions to be reduced if a minor swears she hasn’t drunk alcohol for a year. In 2015, legislation made it possible for first drug or alcohol offenders to get a suspension reduction upon the child completing an education series on substance abuse treatment. That gets things closer to the pre-2009 situation, with longer suspensions now typically becoming six month suspensions if a child has any sense. However, the code is still a convoluted mess, and reduced suspension lengths in particular are ill defined. Apart from the suspensions described above, there is also a one year license suspension for buying alcohol with a phony ID, under the 2009 law, passed to penalize children who use a bogus ID to buy alcohol and thereby get a retailer in trouble. Prior to 1996, if a minor turned eighteen before coming to court the judge did not have to suspend the license, but that is no longer the case. Utah Code § 53-3-220(1)(b) makes license suspension mandatory for drive by shooting and drive by bombing cases. For DUI offenses an ignition interlock may be required under Utah Code § 41-6a-518. “Not a drop” suspension had been an administrative action taken by the Drivers License Division when the division was notified by a police officer to suspend the license of a minor found driving with any alcohol in the minor’s bloodstream, but as of 2008 there is now also a not a drop misdemeanor. For some inexplicable reason, huffing inhalants (a violation of Utah Code § 76-10-107) does not result in a license suspension. There is a difference of opinion among juvenile judges as to whether license suspensions are required when pleas are held in abeyance; that may be a bit odd, considering URJP 25(f). In some courts, first alcohol or first substance abuse charges may be handled nonjudicially, which avoids driver license suspension. There is a little known statutory provision allowing a juvenile judge to seize a driver license for any traffic offense that sets the judge off. Utah Code § 78A-6-117(2)(l).
52. Copies are available from the Utah Sentencing Commission and are also online at the Utah Sentencing Commission’s web site (http://www.sentencing.utah.gov). The disposition matrix is reproduced at the end of this article. The matrix would allow better early intervention if row I were eliminated and children not being handled nonjudically would enter the matrix on what is now row II, and if column A of that row was “community placement” rather than “state supervision”. Unfortunately, early intervention—and timely movement to intermediate sanctions and beyond—fell prey to budgetary concerns. Even so, if used correctly the matrix provides built-in risk assessment, graduated sanctions, and the means for providing a clear division between the roles of juvenile probation and Juvenile Justice Services. However, the results of a 2006 study by the Utah Sentencing Commission suggest that judges often ignore the matrix, and that most of the time a judge imposes some level of supervision at odds with the matrix, he is imposing a lower level of intervention than suggested by the guidelines. This does not bode well for community protection. It also leaves one wondering whether the judiciary lacks faith in its own programs.
Note that one’s case history lists all interactions with the juvenile court, including such things as review hearings, and also dependency hearings. Each has a number, so what may seem like the most recent of a string of offenses, say something numbered offense number 013 on a petition, may actually be a first delinquency charge; 001–012 may have been dependency hearings.
Speaking of sentencing matrices, the adult criminal sentencing guidelines use a sentencing matrix that takes into account juvenile adjudications. Juvenile prosecutors can hardly refuse to prosecute felony-level offenses in juvenile court because a juvenile record might someday have some effect on habitual criminals in the adult system; the best way to avoid such an effect is to not be a criminal.
Juvenile court adjudications may not have any effect on immigration status; it is rare for delinquents to be deported. Still, immigration law or at least enforcement policy changes so frequently that it would be wise for defense attorneys to try to figure out how to apprise illegal aliens of any potential immigration consequences of an adjudication. The best way to avoid collateral consequences for delinquency is to eschew delinquency.
53. Rule of Judicial Administration 7-304 describes probation supervision.
54. The Division of Juvenile Justice Services (renamed in 2004 from the Division of Youth Corrections; see supra note 40) is part of the Department of Human Services, not an arm of the juvenile court as is juvenile probation. Juvenile Justice Services generally decides for itself what sort of placement to use; the specific placement is not determined by the judge. As a child moves up the ladder of graduated sanctions, expenses to parents increase since they may be billed for the cost of some services and placements. Utah Code § 78A-6-1106. For a summary of what Juvenile Justice Services does, see Office of Research, Evaluation, & Planning, Division of Juvenile Justice Services 2015 Annual Report: Changing Young Lives. See also title 62A, chapter 7 of the Utah Code, and Utah Administrative Rule R547. Some similar reports have been published by the courts: see Juvenile Court Report Card to the Community 2015; see also the Utah Judicial Council’s 2015 Annual Report to the Community: Courts Taking a Leadership Role in Reform Efforts. The JJS and the Utah courts web sites cited supra note 2 contain these reports and other information.
In part because parents must pay child support for children placed in state custody (an obligation likely to be court ordered at the time of placement, with an instruction to promptly contact the Office of Recovery Services), many of the queries raised by those wondering how to emancipate a minor came from parents wanting to terminate their parenting responsibilities early. Until 2006 Utah had no emancipation statute, and parents were expected to take care of their children even through difficulties. It was conceivable that a judge would emancipate a minor under common law procedures, see In re R.R., 797 P.2d 459 (Utah Ct. App. 1990), but very few people knew that. Parents should not have to pay to support children in custody if their children have been emancipated, as through marriage; see In re. K.C.G., 987 P.2d 1272 (Utah Ct. App. 1999). In 2006 the legislature created a formal process for emancipation. The motivation was to help children from polygamous families. The new law allows sixteen or seventeen year olds to petition for emancipation. See Utah Code §§ 78A-6-801 to -805.
55. Secure confinement (sometimes called secure care) differs from detention in that detention is used for short term confinement to hold a child pending adjudication or placement, or to provide a short term wake up call as part of disposition. Secure confinement facilities may be situated in the same complex as detention facilities, but the populations are separate. Detention stays can involve credit for good time, see supra note 50, and release from secure confinement to parole is similarly easier if the child behaves, so it behooves defense counsel to encourage their clients to be model citizens while guests of the State.
56. The Victim Handbook pamphlet, available from the Youth Parole Authority, provides a good overview of how the Youth Parole Authority decides appropriate lengths of stay in secure confinement, when to release to parole, and so forth. Attorneys are typically not involved in most hearings held by the Youth Parole Authority, but could take more of a role in supporting clients, especially at parole revocation hearings. For purposes of placement in its own matrix, the Youth Parole Authority tends to take a broad view of the definition of terms like “injury” (which, for example, it considers to include emotional impact as well as physical damage). On the other hand, they consider robbery a property crime on par with burglary, which can make for odd matrix placement in cases where someone has actually threatened or hurt a person (which is inherent in the crime of robbery). There is a danger that the Youth Parole Authority may quickly release out-of-staters from secure and send them away instead of spending money to make them serve their time here, and that affects prosecutorial decisions on whether to send out-of-staters to secure or to the adult system instead. See also Utah Admin. R. 547-6.
57. Observation and Assessment centers (often called “O&A”) are run by Juvenile Justice Services, but the juvenile court retains jurisdiction over children sent there. Stays at O&A typically run a few weeks to forty five days. In 2015, JJS began transitioning some cases to in-home O&A, which may save money in the short run, but whether it will be effective in an open question.
Occasionally someone will get confused about whether a prior stay in O&A counts as a “community placement” for purposes of making a disposition assessment matrix placement (a felony-level offense after a community placement puts one on row 5 of the matrix, so whether O&A constitutes a community placement is important). It does not. The guidelines make clear that community placement is a disposition, but O&A is a diagnostic tool and is not to be used as a disposition. There is no presumption that a child should fall within a community placement box on the matrix before she would be sent to O&A. Going to O&A does not mean that any subsequent felony-level offense would place them all the way up on row 5 because they have been in O&A, any more than going to detention or youth receiving would put them on row 5 for a subsequent felony-level offense. An O&A placement leaves a child in the same spot on the matrix she would be if she had not been to O&A. Observation and Assessment simply helps the judge better understand the child’s needs, and helps the judge better assess aggravating or mitigating factors pointing toward a particular ultimate placement.
58. Under Utah Code § 78A-6-1101, any of these dispositions, apart from secure confinement, are available to juvenile judges as a sanction for contempt of court committed by children (adults contempts are handled under Utah Code § 78B-6-310).
One flaw in the administration of juvenile justice in Utah is that the system frequently refuses to deal seriously with the most culpable offenders: those who are about to turn eighteen or already have turned eighteen since the offense, and therefore have the least excuse for misbehavior. Rather than place such individuals on probation or in JJS custody, juvenile court officials too frequently wash their hands of such cases by imposing only fines and community service hours (and perhaps detention or, if they have turned eighteen, jail time) in order to be finished with such cases. Defense attorneys may capitalize on this if their desire is to minimize services to miscreants.
Occasionally one hears concerns about “disproportionate minority confinement.” In Utah, there is no evidence that any particular minority group’s members are being confined at levels disproportionate to that group’s offense rate in society. Indeed, children referred to juvenile court have self selected, by committing delinquent acts. Where there is a glaring gap is in gender equity. “Disproportionate male confinement” is not even a catchphrase, but it is quite noticable that boys far outnumber girls in detention and in secure.59. Rule of Judicial Administration 7-305. Note also that juvenile court judges can modify or set aside their orders later, although modifying an order so as to place someone on probation requires a hearing. Utah Code § 78A-6-119; Utah R. Juv. P. 47. See Utah Rule of Juvenile Procedure 51 for information on petitions alleging out-of-court contempts or violations of probation (which may result in further sanctions). For years there were very limited provisions in Utah Rule of Juvenile Procedure 29A allowing victims to testify by recording or out of view of the defendant, but what with the world becoming increasingly used to communicating through contraptions, in 2016 new rule 29B allowed parties, or parents, to conference in to many types of hearings remotely. The author is hoping this rule will be read to allow him to start appearing at reviews from the comfort of his hammock, where he anticipates keeping a clip-on tie handy.
60. Utah Code § 78A-6-704, Utah Code §§ 78A-6-1108 to -1109, and Utah Rules of Juvenile Procedure 48 and 52 deal with new hearings and with appeals. A 2003 amendment to Utah Rule of Juvenile Procedure 53 clarified the responsibility of counsel to notify clients of their right to appeal. When a child is not represented by counsel at juvenile court proceedings, upon adjudication the court is required to tell her that she has a right to appeal. In practice, few delinquent children set off for the court of appeals, and those who do so should certainly get themselves a lawyer.
61. Utah Code § 78A-6-1105; Utah R. Juv. P. 56 (note that this rule was amended in 2002 and 2003); Utah R. Juv. P. 17(c)(2) (note that this rule was amended in 2002 and 2003). How the person can respond to a question like “Have you ever been referred to juvenile court?” might be a bit of an ethical gray area, although the question itself is questionable to the extent it equates accusations with guilt. Of course, expungement does not change the fact that one did whatever one did, and there are contexts in which one would be ethically obliged to tell the truth about that or to decline to answer the question. In 2002 the legislature added a provision to section 1105 allowing judges to waive the waiting requirements. The same legislation also allows expungement of “records” consisting only of nonjudicial adjustments, without requiring a hearing. As of 2007 the law expressly says that judgments imposing restitution must be satisfied before expungement is granted. Although expungement of sex offenses is possible, expungement does not result in removal from the Utah Department of Human Service’s databases. (Children in Utah who commit sex offenses do not have to register as sex offenders unless they are still in JJS custody as they approach their twenty-first birthday, but they may find their way onto licensing-related databases. Apart from the administrative process for appealing being listed on those databases, the 2002 legislature created a means of obtaining a hearing before a judge on the propriety of such a listing.) Unfortunately, in 2009 the court fees for expungements and for administrative appeals were jacked up so high that these proceedings will be out of reach for some individuals.
62. Utah Code § 78A-6-701. A 2002 revision to the direct file statute exempted from the direct file process felonies committed by children while in secure confinement at the time of committing the offense. This was done to stymie efforts by children in secure care to move into the adult system and get bail by committing a felony while in secure, an expedient typically attempted by assaulting the staff. As a result of the US Supreme Court’s unprincipled decision in Roper v. Simmons, imposing upon the States the political views of five unelected federal judges, since 2005 Utah’s death penalty cannot be applied to children direct filed on into adult criminal court. Roper later spawned Graham v. Florida, a similarly unprincipled decision, which held that children cannot be sentenced to life without parole for non-homicide cases. The Graham court said no one need worry about murderers getting out to kill again, since life without parole was still possible for homicide, but then in Miller v. Alabama it struck down mandatory life without parole sentences for homicide (but only mandatory sentences; individualized life without parole sentences are still possible for children); since most states allowed such mandatory sentences, the court’s “evolving standards of decency” language rang hollow again (but that concept can’t be taken seriously in a literal sense, it’s more an expression of a judicial hope that democratic processes will someday reverse and reflect the enlightened views of five justices about social policy, regardless of whether the US Constitution says anything about those values). None of these outcomes are especially bad, but there weren’t based on law but on ideology, and the changes should have been left to the states. In 2016 Utah ended life without parole for children convicted of capital crimes. Utah’s direct file scheme is the same thing that federal reports sometimes call “statutory exclusion.” In 2011 Utah’s supreme court took to calling it “automatic waiver.” 2014 legislation calls for minors arrested with the expectation they would be direct filed on, to be taken to juvenile detention and housed there until the district court judge determines where to hold the minor pending trial. See Utah Code § 78A-6-701(4) to -(9). The statute provides factors for the judge to consider in making this decision, allows bail, and requires minors who turn eighteen while in detention to be transferred to jail. 2015 legislation limited direct filing based on post secure confinement felonies to the same list of felonies as that for the serious youth offender process.
63. Utah Code § 78A-6-701(3).
64. The complete list is: aggravated arson, aggravated assault involving intentionally caused serious bodily injury (second degree felony aggravated assault, not use-of-a-weapon third degree felony aggravated assault), aggravated kidnaping, aggravated burglary, aggravated robbery, aggravated sexual assault, discharge of a firearm from a vehicle, attempted aggravated murder, attempted murder, or any other felony-level offense involving use of a dangerous weapon if the child has previously committed a felony-level offense involving use of a dangerous weapon. Utah Code § 78A-6-702(1). Someday an unusually aggressive prosecutor may argue that the ages listed in the Serious Youth Offender Act pertain to age at charging rather than age at offense; it seems unlikely that such an argument would succeed (the legislative history includes statistical estimates of the number of youth who would be transferred, and those estimates were based on the Act pertaining to age at offense). Crimes not making the list include aggravated sexual abuse of a child, the Utah Code § 76-5-402.1(2)(b) variant of rape of a child (which by charge level and offense description is effectively an aggravated form of rape of a child), the Utah Code § 76-5-402.3(2)(b) variant of object rape of a child (which by offense level and offense description is effectively an aggravated form of object rape of a child), the Utah Code § 76-5-403.1(2)(b) variant of sodomy on a child (which by offense level and offense description is effectively an aggravated form of sodomy on a child), the Utah Code § 76-5-404(2)(b) variant of forcible sexual abuse (which by charge level and offense description is effectively an aggravated form of forcible sexual abuse, although this subsection is written differently than most of the other sex offenses, and should probably be fixed), the Utah Code § 76-5-402(3)(b) variant of rape (which by offense level and offense description is effectively an aggravated form of rape), the Utah Code § 76-5-402.2(1)(c) variant of object rape (which by offense level and offense description is effectively an aggravated form of object rape, although this subsection is written differently than most of the other sex offenses, and should probably be fixed), the Utah Code § 76-5-403(4)(c) variant of forcible sodomy (which by offense level and offense description is effectively an aggravated form of forcible sodomy), aggravated escape, aggravated exploitation of prostitution, aggravated cruelty to an animal, aggravated assault by a prisoner, aggravated human trafficking and aggravated human smuggling. Manslaughter and child abuse homicide aren’t on the list either. One wonders why the more serious sex offenses against children 14 and over made the list, but the more serious sex offenses against children under 14 did not, and why second and third degree felonies made the list, but many of the most serious first degree felonies did not.
65. Utah Code § 78A-6-702; Utah R. Juv. P. 21 -23A. Other offenses committed at the same time will also be transferred. Utah’s serious youth offender process is the same thing that federal reports sometimes call “presumptive waiver.”
66. Utah R. Juv. P. 22, 23A.
67. If a question of prior use of a weapon is involved, the prosecutor must show by a preponderance of the evidence that there was a previous adjudication or conviction for such an offense.
68. Until 2013 the Serious Youth Offender Act almost guaranteed transfer, unless a prosecutor amended a charge to a non-SYO charge, because judges were required to bind over a child unless the child could demonstrate by clear and convincing evidence that all of three retention factors applied, and it was nearly impossible to do that since one of the factors was that the crime was not violent or aggressive or premeditated, and aggravated offenses are virtually always violent or aggressive or premeditated. The 2013 changes were made to give judges additional, albeit circumscribed, discretion in the transfer decision. The legislature thought that their revision did not change the SYO process, and the sponsor repeatedly said that the revisions allow discretion in a “very narrow situation.” The judge’s job stopped being to determine whether the retention factors were proven, but instead became to make a best interest determination based on a consideration of a longer list of factors, which is more similar to certification cases. However, the burden of proof regarding retention remained with the defendant. By 2015 there had been additional changes that essentially eviscerated the Serious Youth Offender Act (for a contrary view, there’s the 2015 F.L. decision by the Utah Court of Appeals, saying that the recent amendments had made it “easier” but “not necessarily easy” for a child to avoid transfer, with the SYO Act’s “presumption” remaining that “sixteen- and seventeen-year-old minors...will be bound over,” but F.L.’s overall analysis doesn’t inspire much confidence that that’s the case). Filing under SYO became optional, to file under SYO the child is supposed to be a “principal actor” (whatever that amorphous term means), when the judge considers the retention factors the fifth factor looks at both public safety and the best interest of the child with an eye to which system would rehabilitate the child and reduce the threat the child presents to the public, and the child’s burden of proof on the factors dropped from clear and convincing to a preponderance of evidence. Also, before prison commitment (and the 2015 amendments assumed that probation or prison were the only options a district court would have), there is to be a report on whether the child could be housed in a JJS facility instead of with the Department of Corrections, the YPA can keep the Board of Pardons and Parole apprised of whatever it wants to relay, and within six months of turning eighteen JJS must transfer sentenced children to the DOC. Utah Code § 78A-6-705. As far as interpretive case law is concerned, all pre-2013 cases deal with the old version of the SYO Act, and need to be parsed carefully to see how applicable they are now. For a discussion of the original factors, see In re M.E.P., 2005 UT App 227, 114 P.3d 596. (Note that although in State ex rel. W.H.V. the court of appeals discussed the premeditation aspect of the original third retention factor, it included dicta that could be misinterpreted as saying that in State v. Lara it said that the third retention factor weighs the violence and aggression aspects of that factor relative to the conduct of co-defendants. The supreme court did not discuss any retention factors in its Lara decision, it only discussed a right to appeal issue. The court of appeals decision below in Lara had discussed the second retention factor, relative culpability. In In re M.E.P., the court of appeals clarified Lara, stating that the plain language of the Serious Youth Offender Act does not require that the crime in question be more violent or aggressive than the violence inherit in the offense itself, to qualify for transfer.) There are a number of other appellate cases on the Serious Youth Offender Act, which tend to wander all over in terms of clarifying whether the original retention factors allowed much chance of staying in juvenile court (but which are now of limited relevance given the 2013 changes to the act). The 2013 changes were viewed as the first step in a process that might eventually result in some type of blended or hybrid sentencing system, so significant additional changes may be coming.
Apart from being incomprehensible, the last half of the previous paragraph also alternates between using two different forms of case citation to appellate decisions dealing with juvenile court cases. Utah appellate courts sometimes use “In re. [minor’s initials]” and sometimes use “State ex rel. [minor’s initials],” sometimes citing the same case one way in one subsequent opinion, and the other way in another. Which form is correct is one of the great mysteries of life.
Speaking of incomprehensible mysteries, in late 2008, not long after Z.C. and K.M., the supreme court came up with another jawdropper. In Houskeeper v. State, the juvenile defendant was accused of committing aggravated sexual assault against a fifteen year old girl, was transferred to the adult system under the SYO process, was convicted there of attempted rape, went to jail, was fined, did post-jail probation, and had to register as a sex offender. At one point he filed an appeal in which the supreme court declined to send his case back to juvenile court following his conviction on the reduced charge. Later he filed in district court a petition under the Post Conviction Relief Act, alleging ineffective assistance of counsel at his preliminary hearing in juvenile court. His petition was denied because the district court thought that even if he had ineffective assistance on the retention factors, transfer is pretty much automatic once probable cause is shown, and since there was clearly probable cause, any challenge based on ineffective assistance would be moot. On appeal, the supreme court came up with an argument for applying the PCRA to the case. The court next observed that transfer is not automatic once probable cause is shown (just near automatic, under the law at that time), so whether there was ineffective assistance on the retention factors was relevant. Then the court opined that the defendant received ineffective assistance because his defense attorney did not call expert medical witnesses at the preliminary hearing to discuss the retention factors. Because at trial the defendant presented expert medical witnesses and the jury convicted on a lesser charge, and because at the PCRA hearing an expert legal witness said that those witnesses should have been called to the preliminary hearing to testify about retention factors (which would have been a feat, since some of the requisite evidence was not available within that time frame), defense counsel was supposedly ineffective. Then the court declared that the defendant was prejudiced thereby because he was supposedly dealt with more harshly in district court than would have happened in juvenile court. Setting aside that it would have been unusual to turn the preliminary hearing into a full blown trial, that there are good reasons not to do so, and that the defense attorney who was supposedly so ineffective at the preliminary hearing is the exact same attorney who supposedly did so well at trial, it is interesting that the court based its finding of ineffective assistance on the testimony of an expert legal witness who not long before had been denounced in a published supreme court opinion for “deplorable” representation of a client. More to the point, it is hard to fathom how what happened at trial proves that a different strategy at the preliminary hearing would have prevented transfer to the adult system. The supreme court seemed to confuse the burden the State had at trial, with the burden the defendant had in the retention factors part of the preliminary hearing. The State was not required by the statute to disprove the retention factors, the defendant had to prove by clear and convincing evidence that all of the retention factors applied (this case fell under the pre-2013 version of the Serious Youth Offender Act). The supreme court completely ignored the premeditation retention factor, and one wonders how the defendant could possibly have proven a lack of premeditation. On the aggression factor the supreme court observed that an expert medical witness at trial could not say with “absolute certainty” whether the victim’s injuries were from nonconsensual sex (that witness was not inclined to say anything with absolute certainty), and opined that the witness’s testimony would have helped the defendant at the preliminary hearing. However, the Serious Youth Offender Act did not say that unless witnesses have absolute certainty that a crime is aggressive, the defendant should get the benefit of the doubt and not be transferred. It said closer to the opposite. And the supreme court’s suggestion that with more testimony at the preliminary hearing the juvenile judge would have been able to determine that the alleged rape wasn’t violent or aggressive because the victim wasn’t injured more, is troubling (the take home lesson for girls in Utah appears to be: if someone tries to rape you the courts will not consider that an inherently aggressive act, and—somehow it is possible for this to get even worse—the courts will give the rapist the benefit of the doubt if your injuries are not as bad as they could have been). Even if the defendant had received ineffective assistance at the preliminary hearing, it is quite a leap to assert that the defendant was prejudiced because he was supposedly punished more severely in the adult system than he would have been in the juvenile system. The defendant went to jail, not prison. In the juvenile system he likely would have gone to JJS secure confinement for longer, perhaps even until he turned twenty-one. If he stayed that long he would have then had to register as a sex offender anyway (in dicta, the majority mistakenly assumed that all juvenile sex offenders have to register). As to prejudice due to not being able to get an expungement, the irony of the defendant’s pyrrhic victory is that although the one remedy the supreme court could come up with was returning to a juvenile court type of remedy after all and ordering that the defendant could seek expungement, its order is undercut by the fact that the court’s opinion, with its damning description of the defendant’s acts, will stand in the Pacific Reporter and in many online legal sources for generations (although in 2010 the defendant changed his name). Meanwhile, for children everywhere who actually deserve the privilege of being handled in juvenile court, it is no victory at all. As pointed out in the dissent (an opinion marred only by the incorrect assumption that even if a defendant shows that all of the retention factors apply, the judge can still transfer the case), the majority opinion is effectively another supreme court argument to further cut back the jurisdiction of the juvenile court. There is no good reason to let the system bog down with preliminary hearings that cannot be set in a timely manner, will take many hours to complete, and do not require that all of the retention factors be proven by the statutorily required burden of proof. Faced with decisions like the 2008 Houskeeper opinion, lawmakers who wanted an aggressive and robust means of transfer must have been tempted to broaden direct file to all SYO cases, and perhaps even to lower the age at which the district court automatically takes jurisdiction over felony-level cases.
69. Utah Code § 78A-6-702(5); Utah R. Juv. P. 23A(f). Utah Code § 78A-6-702 and Utah Rule of Juvenile Procedure 23A also allow for indictment by grand jury, although that is not common. If at a serious youth offender hearing the judge does not bind the child over, the juvenile court will either proceed on the information as if it were a petition, Utah Code § 78A-6-702(4), or will dismiss the information and discharge the child, Utah R. Juv. P. 22(k). Regarding those children who are transferred, 2010 legislation clarifying the Serious Youth Offender Act explained that when someone is sent to the adult system, she has been sent to the adult system—she no longer gets to stay in juvenile detention, but has to go to jail instead (but note that if a transferred child is released from jail and has older offenses still pending in juvenile court, the juvenile judge retains jurisdiction over those older charges and can hold the minor in juvenile detention on those charges if she has made bail and been released from jail on the more recent SYO charges). However, in 2014 the legislature changed that some, stating that at transfer, the juvenile judge can now make an initial determination on whether the minor will be housed in juvenile detention or in jail pending trial. See Utah Code § 78A-6-702(6) to -(12). The statute provides factors for the judge to consider in making this decision, allows bail, and requires minors who turn eighteen while in detention to be transferred to jail. The district court can reconsider the placement decision.
70. Utah Code § 78A-6-702(8). A 2001 court of appeals decision, State v. Tunzi, required that plea bargained charges be returned to juvenile court. The 2002 legislature promptly corrected that situation by amending the Serious Youth Offender Act to make it clear that such cases stay in district court. Also in 2002, the supreme court in State v. Houskeeper—not the PCRA appeal mentioned in note 68, but the earlier appeal—rejected Tunzi’s reasoning.
71. Utah Code §§ 78A-6-602(3) and -703; Utah R. Juv. P. 23. Criminal procedural rules will also apply. There are statutory provisions for indictment by a grand jury, but that process is uncommon. If in a certification hearing the child escapes transfer to district court, the juvenile court will prosecute the child upon the information as if it were a petition. Utah’s certification procedure is the same thing that federal reports sometimes call “discretionary waiver.”
72. Utah R. Juv. P. 22(f)(2)(A).
73. Utah Code § 78A-6-703(3). These factors involve such things as the nature of the offense, the maturity of the child who perpetrated the offense, and the child’s amenability to rehabilitation.
74. Utah Code § 78A-6-703(5) and Utah R. Juv. P. 23(a). In 2011 the Utah Court of Appeals, apparently not wanting the Utah Supreme Court to monopolize odd juvenile court decisions, decided in A.H.F. v. State that although considerable effort is supposed to go into preparing this report for the judge, the judge can’t actually use it because by statute almost all of the report will inevitably be hearsay.
75. Utah R. Juv. P. 23(e); Utah Code § 78A-6-703(12) to -(14). In 2014 the legislature said that at transfer, the juvenile judge can make an initial determination on whether the minor will be housed in juvenile detention or in jail pending trial. See Utah Code § 78A-6-703(7) to -(13). The statute provides factors for the judge to consider in making this decision, allows bail, and requires minors who turn eighteen while in detention to be transferred to jail. The district court can reconsider the placement decision.
76. Study on file with author.
77. A study done for the Utah Commission on Criminal and Juvenile Justice, “The Impact of the Serious Youth Offender Law,” provides some additional insight into this question (http://www.justice.utah.gov/Documents/Research/Juvenile/SYOLIMPACT.pdf).
78. One may wonder why, apart from the direct file process, when the Serious Youth Offender Act was first passed Utah’s legislature did not restrict mandatory, discretionless transfer to those who had already been on row V of the disposition assessment matrix, had already been in secure confinement, and then—by subsequently being charged with a person felony—had indicated that they were not only dangerous but intractable, leaving the transfer of other minors to prosecutorial discretion. Actually, the legislature was motivated in part to pass some kind of law constraining prosecutorial discretion because the defense bar demanded it. At the time the legislature was debating the act, the defense bar was arguing the case that led to the peculiar 1995 Mohi decision, in which the supreme court actually bought the defense argument that prosecutorial discretion in direct file cases is unconstitutional. The legislature was aware of the pending case. When the legislature chose to abandon a discretionary approach, it had to choose between a discretionless zero tolerance approach to serious juvenile crime under which everyone committing certain crimes would be transferred, or a discretionless unlimited tolerance approach under which no one would be transferred. The legislature could only choose the former. Mohi insured no turning back. Due to the astonishing shortsightedness of defense attorneys who failed to grasp that prosecutorial discretion works down, or in other words in favor of a defendant’s liberty interest, defense attorneys guaranteed they would be stuck with a somewhat draconian law. Somehow they overlooked the simple fact that prosecutors do not have discretion to charge someone with more offenses or with more serious offenses than they committed. Prosecutorial discretion only allows prosecutors to seek individualized justice by charging less. Defendants either get the maximum charge (in this context, one resulting in transfer), or they get something less because the prosecutor exercises discretion. No discretion means no mercy. Predictably, Mohi’s defense attorney turned around and in State v. Angilau argued that the harsh discretionless situation he had effectively demanded was unconstitutional; the supreme court did not let him get away with that. Now, none of that matters since the legislature has extracted the teeth from the serious youth offender process, so serious offenders no longer need to worry about being bitten by the law, they might just get gummed by it.
79. In 1995, 38,052 Utah children turned eighteen. Of those children, 60% were never hailed into juvenile court; 40% did come to court at some point during their youth. Of the 15,068 children making up the 40% who were processed for various offenses, 715 had four or more felony-level offenses, and those 715 children accounted for 60% of all felony-level offenses committed by children (meaning that about 2% of all the children in Utah, or 5% of the offenders, were responsible for most of the serious offenses committed by children; conversely, most children are not egregious offenders). Looking at all types of offenses and at recidivism, about half of the children coming to court never reoffended. Of those who had two offenses, two-thirds stopped coming back to court. Of those who had three offenses, three-fourths never came back again. Telephone interview with Robert Turner of the Administrative Office of the Courts (September 21, 1999). Some of those children undoubtedly graduated to the criminal justice system, but many simply grew up.
80. SHOCAP stands for Serious Habitual Offender Comprehensive Action Program, and is designed to allow entities concerned with children—school districts, the Division of Child and Family Services, mental health agencies, law enforcement agencies, the juvenile court, county attorneys, etc.—to better share information on serious habitual offenders. Probation officers would be able to more readily track school attendance of serious habitual offenders, police officers would know when contacting offending children on the street whether the children are violating the terms of their probation, service providers would know that a particular child needs more intensive help, and so forth. SHOCAP (pamphlet published by the Commission on Criminal and Juvenile Justice). Utah Code §§ 63-92-1 to -3. Sadly, SHOCAP has failed to thrive, and is defunct in most counties that tried it.
81. In the mid 2010’s, after the legislature revised the state’s drug laws to make them among the most permissive in the country, and foisted upon the state the Justice Reinvestment Initiative (JRI) to save money by replacing the prison with a mini prison elsewhere (freeing up the prison land for development), but then failed to actually reinvest in the requisite drug treatment, the eye of the supposed reformers turned to the juvenile courts. In November of 2016, a Juvenile Justice Working Group released so called “data findings” for consideration by the 2017 legislature, and a report, although the people behind this effort knew where they were headed well before the dog and pony show started. Once again, an unholy alliance of outside groups that see police, PO’s, and prosecutors as a blight on society, and local legislators who don’t like spending money on public safety and are happy to pretend there are no consequences to letting criminals run free in society, have put a justice system in their crosshairs, this time the juvenile justice system. One can assume the elites in Salt Lake have changes in the works. For a critique of the working group’s report, see this PDF.