by Robert Sheil , Esq .
THE CHILDREN ’ S CORNER
The Transformation of Juvenile Justice Jurisdiction in Vermont : Landmark Legislation Enacted in the 2016 Legislative Session
For nearly three decades , advocates have been seeking a change in Vermont law regarding which is the proper court to hear cases involving delinquent acts committed by youth under the age of 18 .
Present law , for instance , allows the State ’ s Attorneys complete discretion to file all charges , with the exception of the most serious offenses , against sixteen and seventeen year olds in either Family Division or Criminal Division no matter what the underlying charge , even for the most minor of crimes . 1 As it stands , a seventeen year-old who shoplifts a candy bar can be charged in Criminal Division . In recent years , prosecutors , to their credit , have begun filing most such cases in Family Division and have developed their own charging protocols for cases involving sixteen and seventeen year olds .
However , any charge in Criminal Division which culminates in a conviction for a sixteen or seventeen year-old will result in that youth having an adult criminal record . An adult criminal record for that minor will have grave collateral consequences . Such conviction greatly affects her or his ability to procure employment , gain access to public housing , enter the military , own firearms and obtain federal student loans .
Over the past twenty years , adolescent brain development research has shown that the human brain ’ s prefrontal cortex is the last part of the brain to develop and that development is not complete until around the age of twenty-five . 2 The prefrontal cortex governs “ executive functions ” which include the ability to assess risk and to consider long term consequences . Also , a multitude of studies have found that a youth is much less likely to engage in future criminal activity if her or his case is processed through the juvenile rather than the adult criminal court system . This research has led almost every other state to rethink which is the appropriate court to handle these cases . Most states have changed their statutes to mandate that the bulk of cases involving youth under the age of eighteen should be under the jurisdiction of a juvenile court .
Vermont has long been an outlier with regard to juvenile jurisdiction reform . However , this past legislative session a collaboration among members of the Vermont House and Senate , the Department for Families and Children , the Vermont Defender General ’ s Office , the State ’ s Attorneys and Sheriff ’ s Association , the Department of Corrections , the Vermont Judiciary , the Vermont American Civil Liberties Union and various victims ’ rights organizations helped draft and enact into law Act No . 153 ( H . 95 ). 3 This bill was signed by the Governor on June 1 , 2016 .
Act 153 , also known colloquially as H . 95 , makes landmark changes in juvenile jurisdiction and the approach that the judicial system will take in the future with regard to minors and young adults up to age twenty-two . It also instructs the Joint Legislative Justice Oversight Committee to examine a number of issues related to the possible further extension of Family Division jurisdiction in the future . A complete analysis of all the changes to the Juvenile Judicial Proceedings Act would be too lengthy for this article but an informative analysis of the entire Act written by Legislative Counsel may be found on the Legislature ’ s website . 4
The following are some of the major changes included in the bill with regard to the jurisdiction of delinquent and criminal cases involving minors :
• As of July 1 , 2016 , children who are ten and eleven years old and charged with one of the Big 12 offenses must have their cases adjudicated in Family Division . 5
• As of July 1 , 2016 law enforcement shall cite sixteen and seventeen yearolds into the Family Division for misdemeanor motor vehicle offenses .
• Beginning on January 1 , 2017 , sixteen year-olds who are alleged to have committed a misdemeanor offense or felony offense , other than a Big 12 offense , must be charged in Family Division . Additionally , only alleged felony offenses , and not misdemeanor offenses , for sixteen year olds may be subject to a motion to transfer to Criminal Division .
• Beginning on January 1 , 2018 , seventeen year-olds who are alleged to have committed a misdemeanor offense or felony offense , other than a Big 12 offense , must be charged in Family Division . Alleged felony offenses for seventeen year-olds will be subject to a motion to transfer to Criminal Division . Also beginning on January 1 , 2018 , a child who is sixteen or seventeen when he or she commits any offense for which he or she is adjudicated delinquent may remain under Family Division jurisdiction for up to six months after his or her nineteenth birthday .
• As of July 1 , 2018 , youthful offender proceedings 6 in the Family Division may begin by the State ’ s Attorney initiating a case in that court against a youth between the ages of sixteen and twenty-one and youth ages twelve to twenty-one may move to be treated as youthful offenders in Family Division .
• As of July 1 , 2018 , the requirement that a youth must enter a conditional plea in Criminal Division prior to a transfer to Family Division for youthful offender status is eliminated . Therefore , if Family Division accepts the case for youthful offender status and the youth is adjudicated as a youthful offender , Family Division will create a criminal case reflecting the charge and conviction .
Section 34 of the Act also instructs the Joint Legislative Justice Oversight Committee , during the 2016 legislative interim , to explore several issues relating to the potential extension of Family Division jurisdiction . These areas to explore include the following :
( 1 ) evaluating the fiscal implications of adjudicating in the Family Division all offenders 18-20 years of age who are not charged with a Big 12 offense ;
( 2 ) considering whether the creation of an Office for Youth Justice or similar ( sic ) with jurisdiction to coordinate supervision and services for youths adjudicated juvenile delinquents and youthful offenders 25 years of age and younger would improve outcomes for youths in the justice system ;
( 3 ) considering expanding youthful of-
44 THE VERMONT BAR JOURNAL • FALL 2016 www . vtbar . org