Friday, April 6, 2012

No Wrath to Come

By Nicole Killoran

In re D.K., 2012 VT 23.

The recipe for today’s case includes: two parts jurisdictional gap in juvenile prosecution; one part legislative hindsight; and seven parts youthful indiscretion.  The final result is more judicial casserole than soufflĂ©. 

Between the ages of eleven and fourteen, Defendant is alleged to have molested his younger male cousin and subjected another to “lewd and lascivious acts.”  His cousins did not speak out about this until 2010 when Defendant had already reached eighteen.

At that time, the State filed its initial charging documents—known as an Information—with the Superior Court’s Criminal Division. 

This created a steaming, jurisdictional hot potato. 

Three months after the initial filing, the Criminal Division decided that it did not have initial jurisdiction because the Defendant was minor under the age of 14 when the acts were committed, and it handed everything over to the Family Division.  Three counts of sexual assault were to be docketed as a delinquency petition, along with four counts of lewd-and-lascivious conduct. 

Three months later, the Family Division dropped the potato.  Because Defendant was now eighteen years old, the Family Division dismissed the case, stating that it had no jurisdiction over the case because while the crimes were allegedly committed when Defendant was fourteen years old or younger, the Family Division’s original jurisdiction ends once the “child” offender turns eighteen.  Furthermore, since jurisdiction had expired, the Family Division concluded it had no authority to transfer the case back to the Criminal Division.

To make things even more complicated, during this back-and-forth between courts, the Vermont Legislature attempted to fix this jurisdictional gap.  During the 2011 Session, the Legislature enacted 33 V.S.A. § 5204a, which announced the General Assembly “always intended” to allow the State, under the proper circumstance, to bring charges against an adult who committed crimes as a juvenile.

This amendment was fodder for the State, who appealed the Family Division’s dismissal on two main questions: first, whether the Legislature’s “clarification” of its intended jurisdictional lines permits prosecution of Defendant even if his alleged crimes were committed before he turned eighteen; and second, whether the Criminal Division’s own general jurisdictional statute, 4 V.S.A. § 32 (permitting trial of felonies), gives the Criminal Division an independent ability to hear the charges.

The SCOV dismisses the first point quickly because the statute as written creates new law but conflicts with the old law (with a gap in prosecution between ages 14-18 in this situation).  The State argues that the “always intended” language of the new enactment is a clarification to be applied retroactively.  The SCOV refuses to read the statute this way.  If the Legislature states that it intends one thing but does another, then the SCOV must go with the action and not the professed intent.

On the second point, whether the Criminal Division had independent jurisdiction over the charges, the State argued that its general jurisdiction statute, combined with another statute (13 V.S.A. § 4501(c)) giving the Criminal Division limited jurisdiction over sex crimes involving juvenile victims, sufficed to allow it to take the case separately. 

Not so, wags the SCOV—prior to this amendment, the Family Division had exclusive jurisdiction over cases brought against juveniles under fourteen, and delinquency petitions while the individual was under 18.  The Legislature had not yet closed that annoying gap for previous-juvenile-delinquents-now-adult-defendants.

The SCOV then delves into the headache of a statutory scheme for transfers between the various Superior Court Divisions (Civil, Criminal, and Family).  Even the transfer statutes, which dictate when a case may or must be transferred to the Criminal Division, indicate that the Criminal Division did not have any independent jurisdiction to take this case under these circumstances.  The SCOV also notes that other jurisdictions have reached a similar conclusion, including Massachusetts and North Carolina.

But wouldn’t this lead to a ridiculous and unintended result, the State asks, leaving juvenile sex offenders such as Defendant unprosecuted when the Legislature has clearly expressed a policy of preventing sex crimes against children and rehabilitating sex offenders?  No it would not, the SCOV retorts: the court will not call the result irrational when the Legislature has clearly spoken to the issue, giving the Family Division exclusive jurisdiction over juvenile crimes even after it passed the amendment addressing the jurisdictional gap.

Moreover, the SCOV finds that to allow automatic prosecution of an adult defendant who committed juvenile crimes before turning fourteen would be contrary to public policy.  Culpability for juveniles at such tender age must be viewed differently than that of older offenders, as the Legislature has decided that before age fourteen you’re still technically a child.  Given the Legislature’s preference for rehabilitating youthful offenders, and removing the taint of criminality from their future lives, to allow the Criminal Division to prosecute an adult for crimes committed under the age of fourteen would defeat the Legislature’s’ intended policy goals.  The SCOV concludes that what the courts may want matters little when the Legislature has spoken, and the specificity of the juvenile criminal law scheme precludes the court creating jurisdiction where there was none.

Justice Dooley writes a separate concurrence to urge the Legislature to clean up the messy and unnecessarily complex jurisdictional transferring scheme between the three divisions of the Superior Court.  As it stands, this scheme presents the State with multiple jurisdictional choices for prosecuting juveniles: bring a confidential juvenile delinquency proceeding in the Family Division before the offender reaches adulthood; bring an open criminal proceeding in the Criminal Division; or transfer cases back and forth between the Divisions as circumstances call.  In trial courts where there is only one judge assigned for all divisions, the result is an absurdity, which will only increase as consolidated court staff and electronic records erase even the marginal physical “transfer” that still exists. 

The Concurrence notes that the real problem with this system is that it allows certain cases, like the present one, to fall through the cracks.  The solution is a simpler system, which the Concurrence characterizes as “we could have judges wearing no hats with the ability to conduct the proceeding as if he or she was wearing all possible hats.”

The angle of the dissent, penned by Justice Skoglund and joined by Chief Justice Reiber, is clear from the first sentence.  It frames the question before the court not as “whether the statutes allow prosecution” but “what should be done with adults who are alleged to have committed felonies while still juveniles.”  As one would expect from a dissent, it reads the same statutory scheme governing jurisdiction over juvenile crimes and reaches the opposite conclusion: that the Legislature did not intend to preclude prosecution of Defendant’s alleged crimes, and the Criminal Division can take it under its general jurisdiction statute.

The dissent begins by recounting a pair of horrific stories involving juvenile murderers in the 1980s.  These cases prompted the Legislature to amend the juvenile prosecution laws to allow the Criminal Division to hear cases involving offenders as young as fourteen. 

The dissent does agree that the Family Division did not have jurisdiction to hear this case, but it insists that once a juvenile becomes an adult and is no longer a “child” the Criminal Division’s jurisdiction over crimes, past or present, takes over.

The dissent draws support for this position from the same juvenile delinquency proceeding statutes the majority argues precluded prosecution. The Legislature has designated twelve felonies—including sexual assault—that the Criminal Division may hear even if the offender is a “child.”  The Legislature also authorized transferring a case from the Family to the Criminal Division if there is probable cause to believe the “child” committed one of these felonies.  If you take the simple expedient of determining jurisdiction by the Defendant’s alleged conduct and not by his age when he did it, then there is no problem here.

The dissent notes also that if Defendant is tried, he is welcome to raise an argument that the prosecution cannot prove intent due to his “tender years” at the time, the inherent problems of juvenile impulse control, and emotional immaturity in a thirteen-year-old.  If he is convicted, the State will not have left untreated a potential future criminal.  All these things are preferable to reading into the statutes what the dissent sees as a ridiculous result, and ignoring the Legislature’s intent. 

Short of another vote, though, leaves Defendant a free adult with no penalty for his alleged crimes.  This is the kind of procedural “get out of jail free” cards that most people on the Burlington Free Press comment section have in mind when a Defendant is first arraigned for a serious crime.  Thankfully such gaps are rare, and today’s result is the exception that proves the rule. 

At the same time, it is important to note, that notwithstanding the concurrence’s point of simplification, the different forums for trying juvenile offenders do have significant consequences.  As a society, we have decided that most juvenile offenders merit the more rehabilitative system of the Family Division.  At the same time, we recognize that even youth is capable of committing heinous acts that warrant no rehabilitation, merely adult, punitive action.  In simplifying the jurisdiction, one hopes that the sophisticated substance is not thrown out with the bathwater.  That would a recipe for disaster.  

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