Landmark Cases in US Juvenile Justice (Georgia) by The Advocacy Foundation, Inc.

The e-Advocate Quarterly Magazine

Landmark Cases in US Juvenile Justice Georgia

Exodus 20:12 â&#x20AC;&#x153;Helping Individuals, Organizations & Communities Achieve Their Full Potential Vol. IV, Issue XVI â&#x20AC;&#x201C; Q-4 October | November| December 2018

The Adolescent Law Group

Landmark Cases in US Juvenile Justice Georgia “Helping Individuals, Organizations & Communities Achieve Their Full Potential

100 Edgewood Avenue, Suite 1690 Atlanta, GA 30303

1735 Market Street, Suite 3750 Philadelphia, PA 19102

John C Johnson III, Esq. Executive Director ______

(855) ADVOC8.0 (855) 238-6280 § (215) 438-6280 www.TheAdvocacyFoundation.org

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Landmark Cases in US Juvenile Justice Georgia â&#x20AC;&#x153;Helping Individuals, Organizations & Communities Achieve Their Full Potential

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Table of Contents

Chronology of US Supreme Court Decisions Constitutional Rights of Children In re Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967) In re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970) McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976 (1977) Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779 (1975) Oklahoma Publishing Company v. District Court in and for Oklahoma City, 480 U.S.308, 97 S.Ct.1045 (1977) Smith v. Daily Mail Publishing Company, 443 U.S. 97, 99 S.Ct.2667 (1979) Shall v. Martin, 467 U.S. 253, 104 S.Ct. 2043 (1984)

First Amendment Issues Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) Bethel School District No. 403 v. Frazier, 478 U.S. 675 (1986) Board of Education v. Pico, 457 U.S. 853 (1982) Tinker v. des Moines Ind. Comm. School Dist., 393 U.S. 503 (1969) Ginsberg v. New York, 390 U.S. 629 (1968) Wisconsin v. Yoder, 406 U.S. 205 (1972)

Georgia‟s Juvenile Code (SB 292) Georgia 2013 Juvenile Justice Reform 2013 Juvenile Justice Reform Legislative (HB 242) Juvenile Law & Procedure The [US] Office of Juvenile Justice & Delinquency Prevention Copyright © 2014 The Advocacy Foundation, Inc. All Rights Reserved.

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Landmark Cases in US Juvenile Justice US Supreme Court Decisions* Chronology

Issues arising from juvenile delinquency proceedings rarely come before the U.S. Supreme Court. Beginning in the late 1960's, however, the Court decided a series of landmark cases that dramatically changed the character and procedures of the juvenile justice system.

* Cases Not Shepardized

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Constitutional Rights of Children

In re Gault 387 U.S. 1, 87 S.Ct. 1428 (1967) In 1967 a landmark U.S. Supreme Court decision gave juveniles accused of crimes the same due process rights as adults. The case involved Jerry Gault, who, at 14, was given a seven-year sentence for a prank phone call. Case Summary Gerald Gault, age 15, was on probation in Arizona for a minor property offense when, in 1964, he and a friend made a crank telephone call to an adult neighbor, asking her, "Are your cherries ripe today?" and "Do you have big bombers?" Identified by the neighbor, the youth were arrested and detained. The victim did not appear at the adjudication hearing, and the court never resolved the issue of whether Gault made the "obscene" remarks. Gault was committed to a training school for the period of his minority. The maximum sentence for an adult would have been a $50 fine or 2 months in jail. An attorney, obtained for Gault after the trial, filed a writ of habeas corpus that was eventually heard by the U.S. Supreme Court. The issue presented in the case was that Gault's constitutional rights (to notice of charges, counsel, questioning of witnesses, protection against selfincrimination, a transcript of the proceedings, and appellate review) were denied. The Court ruled that in hearings that could result in commitment to an institution, juveniles have the right to notice and counsel, to question witnesses, and to protection against selfincrimination. The Court did not rule on a juvenile's right to appellate review or transcripts, but encouraged the States to provide those rights. The Court based its ruling on the fact that Gault was being punished rather than helped by the juvenile court. The Court explicitly rejected the doctrine of parens patriae as the founding principle of juvenile justice, describing the concept as murky and of dubious historical relevance. The Court concluded that the handling of Gault's case violated the due process clause of the 14th amendment: "Juvenile court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure."

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In re Winship 397 U.S. 358, 90 S.Ct. 1068 (1970) Samuel Winship, age 12, was charged with stealing $112 from a woman's purse in a store. A store employee claimed to have seen Winship running from the scene just before the woman noticed the money was missing; others in the store stated that the employee was not in a position to see the money being taken. Winship was adjudicated delinquent and committed to a training school. New York juvenile courts operated under the civil court standard of a "preponderance of evidence" (civil trial standard). The court agreed with Winship's attorney that there was "reasonable doubt" of Winship's guilt, but based its ruling on the "preponderance" of evidence. Upon appeal to the Supreme Court, the central issue in the case was whether "proof beyond a reasonable doubt" should be considered among the "essentials of due process and fair treatment" required during the adjudicatory stage (trial) of the juvenile court process. The Court rejected lower court arguments that juvenile courts were not required to operate on the same standards as adult courts because juvenile courts were designed to "save" rather than to "punish" children. The Court ruled that the "reasonable doubt" standard should be required in all delinquency adjudications.

McKeiver v. Pennsylvania 403 U.S. 528, 91 S.Ct. 1976 (1971) Joseph McKeiver, age 16, was charged with robbery, larceny, and receiving stolen goods. He and 20 to 30 other youth allegedly chased 3 youth and took 25 cents from them. McKeiver met with his attorney for only a few minutes before his adjudicatory hearing. At the hearing, his attorney's request for a jury trial was denied by the court. He was subsequently adjudicated and placed on probation. The State Supreme Court cited recent decisions of the U.S. Supreme Court that had attempted to include more due process in juvenile court proceedings without eroding the essential benefits of the juvenile court. The State Supreme Court affirmed the lower court, arguing that of all due process rights, trial by jury is most likely to "destroy the traditional character of juvenile proceedings." The U.S. Supreme Court found that the due process clause of the 14th amendment did not require jury trials in juvenile court. The impact of the Court's Gault and Winship decisions was to enhance the accuracy of the juvenile court process in the fact-finding stage. In McKeiver, the Court argued that juries are not known to be more accurate than judges in the adjudication stage and could be disruptive to the informal atmosphere of the juvenile court, tending to make it more adversarial. Landmark Cases in US Juvenile Justice Page 8 of 27

Breed v. Jones 421 U.S. 519, 95 S.Ct. 1779 (1975) In 1970, Gary Jones, age 17, was charged with armed robbery. Jones appeared in Los Angeles juvenile court and was adjudicated delinquent on the original charge and two other robberies. At the Dispositional Hearing, the judge waived jurisdiction over the case to criminal court. Counsel for Jones filed a Writ of Habeas Corpus, arguing that the waiver to criminal court violated the double jeopardy clause of the Fifth Amendment. The court denied this petition, saying that Jones had not been tried twice because juvenile adjudication is not a "trial" and does not place a youth in jeopardy. Upon appeal, the U.S. Supreme Court ruled that an adjudication in juvenile court, in which a juvenile is found to have violated a criminal statute, is equivalent to a trial in criminal court. Thus, Jones had been placed in double jeopardy. The Court also specified that jeopardy applies at the adjudication hearing when evidence is first presented. Waiver cannot occur after jeopardy attaches.

Oklahoma Publishing Company v. District Court in and for Oklahoma City 480 U.S. 308, 97 S.Ct. 1045 (1977) The Oklahoma Publishing Company case involved a court order prohibiting the press from reporting the name and photograph of a youth involved in a juvenile court proceeding. The material in question was obtained legally from a source outside the court. The U.S. Supreme Court found the court order to be an unconstitutional infringement on freedom of the press.

Smith v. Daily Mail Publishing Company 443 U.S. 97, 99 S.Ct. 2667 (1979) The Daily Mail case held that State law cannot stop the press from publishing a juvenile's name that it obtained independently of the court. Although the decision did not hold that the press should have access to juvenile court files, it held that if information regarding a juvenile case is lawfully obtained by the media, the first amendment interest in a free press takes precedence over the interests in preserving the anonymity of juvenile defendants.

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Schall v. Martin 467 U.S. 253, 104 S.Ct. 2403 (1984) Gregory Martin, age 14, was arrested in 1977 and charged with robbery, assault, and possession of a weapon. He and two other youth allegedly hit a boy on the head with a loaded gun and stole his jacket and sneakers. Martin was held pending adjudication because the court found there was a "serious risk" that he would commit another crime if released. Martin's attorney filed a habeas corpus action challenging the fundamental fairness of preventive detention. The lower appellate courts reversed the juvenile court's detention order, arguing in part that pretrial detention is essentially punishment because many juveniles detained before trial are released before, or immediately after, adjudication. The U.S. Supreme Court upheld the constitutionality of the Preventive Detention Statute. The Court stated that Preventive Detention serves a Legitimate State Objective in protecting both the juvenile and society from pretrial crime and is not intended to punish the juvenile. The Court found there were enough procedures in place to protect juveniles from wrongful deprivation of liberty. The protections were provided by notice, a statement of the facts and reasons for detention, and a probable cause hearing within a short time. The Court also reasserted the parens patriae interests of the State in promoting the welfare of children. Kent v. United States 383 U.S. 541 (1966) Petitioner was arrested at the age of 16 in connection with charges of housebreaking, robbery and rape. As a juvenile, he was subject to the exclusive jurisdiction of the District of Columbia Juvenile Court unless that court, after "full investigation," should waive jurisdiction over him and remit him for trial to the United States District Court for the District of Columbia. The Juvenile Court entered an order waiving jurisdiction, with the recitation that this was done after the required "full investigation." He was convicted on six counts of housebreaking and robbery, but acquitted on two rape counts by reason of insanity. On appeal, petitioner raised, among other things, the validity of the Juvenile Court's waiver of jurisdiction. Held: The Juvenile Court order waiving jurisdiction and remitting petitioner for trial in the District Court was invalid. pp. 552-564. The parens patriae philosophy of the Juvenile Court "is not an invitation to procedural arbitrariness." pp. 554-556.

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As the Court of Appeals for the District of Columbia Circuit has held, "the waiver of jurisdiction is a â&#x20AC;&#x17E;critically important' [p. 542] action determining vitally important statutory rights of the juvenile." pp. 556-557.

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First Amendment Issues Hazelwood School District v. Kuhlmeier 484 U.S. 260 (1988) Student members of a school newspaper alleged that their First Amendment rights were violated when the principal decided to omit two pages of the school newspaper in order to protect the identity of a student who was discussed in the article. The district court found in favor of the school district and the Eighth Circuit reversed. The U.S. Supreme Court found that public school students do not automatically have the same First Amendment rights of adults outside the school and that the school paper was not a forum for public expression like traditional public forums. The Court also found that the school had an interest in protecting the identity of the students in an article about pregnancy as well as in maintaining the integrity of student speech allowed in the school newspaper. Finally, the Court held that the principal‟s actions were reasonable under the circumstances. Thus, the Court reversed the Eighth Circuit and held that the principal‟s actions did not violate the First Amendment.

Bethel School District No. 403 v. Frazier 478 U.S. 675 (1986) The issue was whether a school district‟s suspension of a high school student for giving a lewd speech violated the First Amendment. At a school-sponsored function, a student delivered a speech nominating a fellow student for student elective office. Throughout the speech, the student referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor, despite that the student was warned by his teachers not to use the language and that use of the language could have severe consequences. Pursuant to the district‟s disciplinary rules, the student was suspended from school for two days. The student alleged that his First Amendment right to freedom of speech was violated and sued the school district, seeking both injunctive relief and monetary damages. Both the trial court and the Ninth Circuit found that the student‟s First Amendments rights were violated. The U.S. Supreme Court reversed, holding that the First Amendment did not prevent the school district from suspending the student because the school district acted within its authority in punishing the student for his offensive speech. The Court found that the penalties imposed were unrelated to any political viewpoint and that allowing that kind of language in a school sponsored event would undermine the school‟s basic educational mission. Thus, the student‟s First Amendment rights were not violated by the school district. Landmark Cases in US Juvenile Justice Page 12 of 27

Board of Education v. Pico 457 U.S. 853 (1982) The issue was whether the First Amendment prohibits a local school board from exercising its discretion to remove library books from school libraries, that the board characterized as “antiAmerican, anti-Christian, anti-Semitic, and just plain filthy.” 457 U.S. at 857. The students of those schools sued, claiming the removal of books violated their First Amendment rights. In a plurality opinion, three justice of the U.S. Supreme Court stated that students had a First Amendment right to receive ideas and information as a necessary predicate to their meaningful exercise of the rights of speech, press, and political freedom. Another justice concurring in the judgment wrote that the state had no authority to deny access to ideas for political reasons, while a fifth justice concurring in the judgment did not want to reach the First Amendment question on an incomplete record. ______ Tinker v. des Moines Ind. Comm. School Dist. 393 U.S. 503 (1969) School officials suspended students from public high school because they wore black armbands to school in protest of the Vietnam War. The students sued the school under 42 U.S.C. § 1983, seeking nominal damages and an injunction that forbid the school from suspending the students. The trial court dismissed the complaint, upholding the constitutionality of the school district‟s action on the ground that it was reasonable to maintain school discipline. The Eighth Circuit considered the case en banc and, because the court was equally divided, the lower court‟s decision was affirmed without opinion. The U.S. Supreme Court held that the wearing of armbands in this case was not tied to any disorderly conduct by the participants and thus that it was “closely akin to „pure speech,‟” 393 U.S. at 505, which is protected by the First Amendment. The record reflected that the students simply wore the arm bands to school in protest, but still attended classes without any interference with work and or discipline. The Court held that students do not “shed their constitutional rights” at the schoolhouse door. 393 U.S. at 506. Thus, the Court found that the school could not deny the students‟ form of expression and held that the students‟ First Amendment rights were violated and reversed and remanded the case to the circuit court.

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Ginsberg v. New York 390 U.S. 629 (1968) The issue in this case was whether a New York criminal obscenity statute that prohibited the sale of magazines with sexual content to minors was constitutional on its face. A store owner was found guilty of selling two adult magazines to a 16 year old boy in violation of the criminal statute prohibiting the sale of such magazines to minors. The state supreme court affirmed the conviction and the store owner was denied leave to appeal to the state court of appeals. The store owner alleged that the constitutional freedom of expression secured to a citizen to read or see sexually explicit material could not depend upon the age of a citizen. The U.S. Supreme Court affirmed the judgment of the lower court, finding that the statute did not “invade[s] the area of freedom of expression constitutionally secured to minors.” 390 U.S. at 637. The Court found that the criminal statute in question was rationally related to the interest of protecting children because both parents and the state have an interest in the well being of children. The Court also held that it was rational for the legislature to find that the minors‟ exposure to sexually explicitly magazines might be harmful to children, even if the same material is suitable for adults. Thus, the Court found that the statute was constitutional and affirmed the lower court.

Wisconsin v. Yoder 406 U.S. 205 (1972) The issue in this case was whether a state statute requiring that children up the age of 16, including those who practiced Amish and Mennonite religions, attend public or private school violated the First and Fourteenth Amendments. Amish and Messonite parents who did not send their children to high school were found guilty of violating the compulsory public school attendance law. The parents practiced the Amish and Mennonite religions and argued that sending their children to public school after the eighth grade violated their religious beliefs and threatened their religious way of life. They educated their children at home to learn farming and homemaking in a rural community and generally prepared them to become functioning adults in their communities. The state supreme court reversed the convictions. The U.S. Supreme Court found that the parents‟ Fundamental Religious Beliefs that their children should remain “aloof from the world,” 406 U.S. at 210, and “accept the heavy obligations imposed by adult baptism,” 406 U.S. at 211, was endangered by the enforcement of the public education laws. The Court held that accommodating the parents‟ religious objections by forgoing one or two additional years of formal high school would not harm the children in any way. Landmark Cases in US Juvenile Justice Page 14 of 27

The Court determined that the parents were not just trying to protect their way of life, but their religious belief, which was undoubtedly sincere. Thus, the Court held that the First and Fourteenth Amendments prohibited the State from compelling the parents to send their children to formal high school to age 16.

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Georgia's Juvenile Code Overview The “juvenile code” refers to the Juvenile Court Code of Georgia, codified at Chapter 11 of Title 15 of the Official Code of Georgia. The juvenile code establishes separate juvenile courts to hear cases involving children. The juvenile courts deal primarily with Deprivation, Delinquency and Status Offense cases. It was enacted almost 40 years ago in 1971, piece-meal amended several times and had never undergone a full review. Deprivation cases involve children under the age of 18 whose parents or guardians have been accused of abusing or neglecting them. Deprived children may be removed from their home and placed with relatives, foster parents or other caretakers while their parents work to correct the problems that led to the children‟s removal. If Reunification efforts with the family fail, the code provides for Termination of Parental Rights and Placement of children in other permanent placements, such as adoption. Delinquency cases involve children under the age of 17 who are accused of committing acts that would be crimes if committed by an adult. Not all offenses involving children are tried in juvenile court. Since 1994, the juvenile code has required that certain serious offenses committed by children age 13 or over to originate in superior court and remain there unless it is transferred to the juvenile court by the district attorney or a superior court judge. Other cases begin in juvenile court but may be transferred to superior court under certain circumstances. Status Offenses are acts that are considered offenses solely because the offender is a child under the age of 18. The current juvenile code refers to these children as “Unruly Children.” Examples of status offenses include Truancy, Curfew Violation and Running Away. Why Does Georgia‟s Juvenile Code Need to Change? It had been almost four decades since Georgia‟s Juvenile Code was passed and it had never undergone a full review. Experts in the child welfare and juvenile justice fields agree that it was time for a full review. The judges and lawyers who use the current code every day described it as “difficult to use, lacking in clarity, and outdated.” In addition, a broad consensus of juvenile court judges, probation officers, social workers, attorneys and other stakeholders agreed that the current code needed, at a minimum, to be modernized and streamlined - GA Appleseed‟s Common Wisdom report. In 2005, the General Assembly recognized that the current code was out of date by passing a resolution calling for a complete overhaul of the juvenile code. Finally, the code did not reflect effective research-based best practices and the latest scientific findings on child and adolescent brain development. SB 292: the Child Protection and Public Safety Act In April 2009, Senate Bill 292, the Child Protection and Public Safety Act was introduced by Senator Bill Hamrick (R-Carrollton) and 23 co-sponsors. SB 292 represented a comprehensive Landmark Cases in US Juvenile Justice Page 16 of 27

revision to Georgia‟s current juvenile code. It was built on the Young Lawyers Division (YLD) of the State Bar of Georgia‟s Proposed Model Code (PMC). SB 292 was considered by the Senate Judiciary Committee and there were important public policy considerations that needed to be explored and debated. Input by stakeholders and the general public [was conducted and concluded]. JUSTGeorgia is committed to transparency, stakeholder participation and thoughtful, measured juvenile code reform. http://www.justga.org/initiatives/juvenile-code ______

Delinquency Proceedings Flowchart - Georgia

Gorgia‟s Juvenile Justice Reform HB: 242 In 2012, Gov. Nathan Deal reappointed the Special Council on Criminal Justice Reform. He asked members to study Georgia‟s juvenile justice system and craft recommendations that improve public safety and decrease costs. With the help of the Pew Center on the States, a nonpartisan research organization, the Council produced a sound set of research-based recommendations. These recommendations were combined with previous legislative efforts led by Rep. Wendell Willard, chairman of the House Judiciary Committee. The resulting legislation reorganizes, revises and modernizes Title 15, Chapter 11 of the Official Code of Georgia Annotated, a section of our law known as The Juvenile Code. The following provides a summary of key elements of House Bill 242, highlighting changes from current law and reflecting amendments made by the House and Senate Judiciary committees.

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Georgia The 2013 Juvenile Justice Reform

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ISSUE IssueBRIEF Brief

PROJECT Public Safety NAME Performance Project

Georgia’s 2013 Juvenile Justice Reform New Policies to Reduce Secure Confinement, Costs, and Recidivism

Overview Following a criminal justice overhaul in 2012, Georgia enacted House Bill 242 in 2013, which included wide-ranging reforms to its juvenile justice system based on recommendations from the Special Council on Criminal Justice Reform for Georgians. The council’s provisions of the bill will save an estimated $85 million over five years and reduce recidivism by focusing out-of-home facilities on serious offenders and investing in evidence-based programs. The bill also streamlines and revises the state code relating to juvenile justice and child welfare, including creating new processes for cases involving children in need of services.

Highlights Problem: In fiscal 2013, the Georgia Department of Juvenile Justice, or DJJ, was appropriated $300 million, nearly two-thirds of which paid for out-of-home facilities, which include secure and nonsecure facilities.1 The state’s secure residential institutions—youth development campuses, or YDCs, and regional youth detention centers, or RYDCs,—cost an average of about $90,000 per bed per year. Despite these substantial expenditures, results were poor: More than 50 percent of adjudicated youth were readjudicated delinquent or convicted of a crime within three years of release, a rate that has held steady since 2003. For youth released from YDCs, the recidivism rate was 65 percent. Findings: The special council conducted an extensive review of the state’s data and found that the juvenile justice system was producing poor results despite the high cost. A significant number of youth in expensive out-of-home facilities had been adjudicated for low-level offenses, many were assessed as a low risk to reoffend, and the public safety outcomes were weak. Additionally, the council found that many parts of the state had limited or no community-based programs for juvenile offenders, leaving judges with few options other than commitment to a state facility. Reforms: The council, with technical assistance from The Pew Charitable Trusts, the Annie E. Casey Foundation, and the Crime & Justice Institute,

www.pewstates.org/Publicsafety

issued recommendations that focus state facilities on higher-level offenders; reduce recidivism by investing in evidence-based programs and practices; and improve government performance by requiring data collection and performance-based contracting. HB 242, which contained many of the council’s policy recommendations, passed both chambers of the General Assembly unanimously and was signed into law by Governor Nathan Deal on May 2, 2013. The state also appropriated $5 million in fiscal 2013 to fund a countylevel voluntary incentive grant program.2 Figure 1:

Title Georgia Council’s Policies to Save $85 Million text

Figure 1: Juvenile out-of-home population and projections, 2002-2018 3500 3000

2,973

2500 1,917

2000

1,908

1500

1,305

1000

ACTUAL

0 ‘02

‘03

‘04

‘05

‘06

‘07

‘08

PROJECTED ‘09

‘10

‘11

‘12

‘13

‘14

‘15

‘16

‘17

‘18

Note: Projection includes only those reforms that were proposed by the council. Source: Georgia Department of Juvenile Justice (historical data); The Pew Charitable Trusts (projections)

July 2013

Public Safety Performance Project

Impact: The 2013 initiatives are expected to save Georgia nearly $85 million through 2018 and avoid the need to open two additional juvenile residential facilities. This will allow the state to reinvest a portion of the savings to expand community-based programs and practices proven to reduce recidivism.

Background The 2011 General Assembly, seeking new ways to protect public safety while controlling the growth of prison costs, created the Special Council on Criminal Justice Reform for Georgians to improve the state’s adult sentencing and corrections system. The council produced a set of comprehensive, data-driven recommendations, which were adopted in HB 1176 during the 2012 session. The legislation, which passed both chambers of the General Assembly unanimously and was signed by Gov. Deal in May 2012, is projected to avert all the anticipated growth in prison population and costs through 2018, saving at least $264 million. Through accompanying budget initiatives, the

“

That is huge savings, and we think not only does it improve

public safety, it also does the right thing for providing alternatives.” — Gov. Nathan Deal, HB 242 bill-signing ceremony, May 2, 2013

The Pew Charitable Trusts

state redirected more than $17 million of the savings into “accountability” courts, such as drug and DUI courts, and other efforts to reduce reoffending.3 Following the 2012 legislative session, Gov. Deal issued an executive order extending the council’s term, expanding its membership, and broadening its focus to include the juvenile justice system. Under this mandate, the council conducted a detailed analysis of Georgia’s juvenile justice system and solicited input from a wide variety of stakeholders. The council formed two working groups, focused on community supervision and out-of-home placements, to review the analysis and consider policy options. The working groups met frequently throughout the summer and fall, and developed fiscally sound, data-driven policy options that will hold offenders accountable, increase public safety, and reduce corrections costs. These recommendations were reported back to the full council, which reviewed and adopted them. The council released its final report in December 2012.

Key Findings Mirroring national trends, the number of youth in Georgia’s juvenile justice system declined in recent years.4 Between 2002 and 2011, the outof-home adjudicated population dropped from 2,973 to 1,917.5 Though the number of youth in the system declined, costs remained high for Georgia taxpayers. In fiscal 2013, the appropriation for DJJ exceeded $300 million.6 Nearly two-thirds of the budget was directed to out-of-home facilities. The state’s secure facilities include YDCs, which cost $91,000 per bed per year, and RYDCs,7 which cost $88,000 per bed per year.8

Public Safety Performance Project

Despite these expenditures, the recidivism rate remained high. More than half of the youth in the juvenile justice system were readjudicated delinquent or convicted of a crime within three years of release. This rate has held steady since 2003.9 For youth released from YDCs, the rate was 65 percent, 6 percentage points higher than those released in 2003.10 See Figures 2 and 3. The councilâ&#x20AC;&#x2122;s analysis revealed five other major challenges for the state: 1 High number of lower-level and lower-

risk offenders in out-of-home facilities

The council found that a majority of youth in out-of-home facilities were felony offenders, and nearly 1 in 5 were assessed as a high risk to reoffend. Among juveniles in these facilities,

however, almost 1 in 4 had been adjudicated for a low-level offense, including a misdemeanor or status offense,11 and approximately 40 percent were assessed as a low risk to reoffend.12 Looking specifically at juveniles in nonsecure residential facilities in 2011, 53 percent had been adjudicated for a misdemeanor (45 percent) or status offense (8 percent), and more than half (56 percent) of those were assessed as low risk. See Figure 4.13 2 High number of lower-risk designated

felony offenders in facilities

In 1980, Georgia adopted a juvenile sentencing law called the Designated Felony Act. It required that all juveniles convicted of any of 11 serious offenses, or designated felonies, serve at least one year at a YDC.14 The initial list focused on violent

Figure Figure2:2:

Figure Figure3:3:

text Figure text 2: Annual cost per bed of Georgia juvenile

text textFigure 3: Three-year recidivism rates for Georgia

Despite High Costs, Most Youth Return to System Title Three-Year Title Three-YearRecidivism RecidivismRates Rates secure placement by facility type, 2011

$95,000 $95,000 $90,000 $90,000 $85,000 $85,000

youth released in 2007

70% 70%

$91,126 $91,126

$88,125 $88,125

$80,000 $80,000 $75,000 $75,000

60% 60% 50% 50%

65% 65% 53% 53%

40% 40%

$70,000 $70,000

30% 30%

$65,000 $65,000

20% 20%

$60,000 $60,000

10% 10%

$55,000 $55,000 $50,000 $50,000

0% 0% Youth Youthdevelopment development campus campus

Regional Regionalyouth youth detention detentioncenter center

AllAlladjudicated adjudicated Juveniles Juvenilesreleased releasedfrom from juveniles youth juveniles youthdevelopment development campus campusfacilities facilities

Note: Recidivism is defined as an adjudication of delinquency in juvenile court or a finding of guilt in adult court for an offense committed within 3 years of release from an out-of-home facility or placement on community supervision. Source: Georgia Department of Juvenile Justice

Georgiaâ&#x20AC;&#x2122;s 2013 Juvenile Justice Reform

Public Safety Performance Project

3 Lack of validation and inconsistent use

of risk- and needs-assessment tools

“

We know one thing for certain: Spending $91,000 a year to lock

up a juvenile and getting 65 percent recidivism in return is not working. We can be smarter with taxpayer dollars. More importantly, we can produce a safer Georgia.” — Chief Justice Carol Hunstein, State of the Judiciary address, Feb. 7, 2013

offenses such as murder, rape, and kidnapping. But over the past three decades, the number of designated felonies has grown to 29 and incorporated less-severe offenses, such as smashand-grab burglary.15 The data revealed that youth adjudicated as designated felons were the only segment of the out-of-home population that consistently increased between 2002 and 2011. As a result, designated felons constituted 98 percent of the youth in YDCs in 2011. One reason for this was that they were spending more time in out-of-home facilities: Between 2002 and 2011, their average time served grew 13 percent. Despite the growth in the number of designated felons, the overall risk level of these offenders had not increased. In fact, the percentage of designated felons identified as high risk remained essentially flat, at about 24 percent, while the percentage identified as low risk increased slightly, from 36 percent in 2004 to 39 percent 2011.16

Risk- and needs-assessment and detentionassessment instruments are objective tools designed to inform key decisions at various stages in the justice process. Currently, Georgia uses the Detention Assessment Instrument to help determine whether youth should be confined pending court proceedings. The state uses another tool, the Comprehensive Risk and Needs Assessment, to evaluate each juvenile’s likelihood to be adjudicated for another crime, inform placement and supervision levels, and identify needs. The council identified two challenges with these tools. First, in order to be effective, assessment instruments must be validated regularly and “renormed” 17 on the state’s population to ensure that they accurately predict and effectively categorize risk. Georgia’s detention instrument had never been validated, however, and the risk and needs assessment had not been validated

Figure 4: 4: of Juveniles in Nonsecure MoreFigure Than Half More Than Half of Juveniles in Nonsecure More Than Half of Juveniles in Nonsecure Facilities in for Low-Level Offenses Facilities in for Low-Level Offenses Facilities in for Low-Level Offenses Figure 4: Georgia adjudicated nonsecure residential Georgia adjudicated nonsecure residential population Georgia adjudicated residential population population by offense type,nonsecure 2011 by offense type,type, 2011 by offense 2011 Misdemeanor

Misdemeanor

Status

53%

Low-Level Offenses

Status

Felony

Low-Level Offenses

Source: Georgia Department of Juvenile Justice Source: Georgia Department of Juvenile Justice

Source: Georgia Department of Juvenile Justice

The Pew Charitable Trusts

Public Safety Performance Project

since 2006. Second, these two tools were neither readily available to all probation officers nor used consistently when available. Additionally, judicial officers were not provided with the risk results before making decisions regarding placement and supervision levels. 4 Lack of community-based options

Stakeholders provided the council with information indicating that in many areas of the state, particularly less-populated ones, few communitybased options were available for youth involved with the juvenile justice system. Where programs did exist, no performance data were available to determine whether they were effective. This lack of access to proven programs was considered by the council to be a contributing factor to the commitment of status offenders, misdemeanants, and low-risk youth to state-run facilities. 5 Lack of uniform data collection

With 159 counties that operate independent, dependent, or shared juvenile courts, Georgia has a complex patchwork of court management and data collection systems.18 As a result, the council found that the state struggled to collect uniform data necessary to determine the impact of existing policies. Though the state had made progress in data collection and sharing, significant impediments to collecting and tracking outcome measures remained. For example, the council found that the state was not able to identify with precision which cases result from school-related offenses or assess the degree to which schoolbased incidents and referrals affect the system.

Legislative Package Based on its review and analysis of Georgia’s juvenile justice system, the council issued a comprehensive set of recommendations in December 2012. The report grouped the

recommendations into three areas: focusing out-of-home facilities on higher-level offenders, reducing recidivism, and improving government performance. It was submitted for consideration to the governor, lieutenant governor, speaker of the House of Representatives, chief justice of the state Supreme Court, and the chief judge of the Georgia Court of Appeals. Many of the recommendations in the report were incorporated into HB 242,19 sponsored by House Judiciary Committee Chairman Wendell Willard and other representatives. The General Assembly unanimously passed the legislation, with votes of 173-0 in the House and 47-0 in the Senate, and Gov. Deal signed it into law May 2, 2013. The bill becomes effective Jan. 1, 2014. Additionally, the state is investing in evidencebased programs to reduce recidivism, including $5 million through accompanying fiscal 2014 budget initiatives20 and $1 million through existing federal funding. These efforts are expected to save the state nearly $85 million through 2018 and avert the need to open two additional juvenile residential facilities.

“

The [council’s] recommendations are anchored in the belief that

we need to do a better job determining which youth offenders really need to enter an expensive YDC and which ones can be effectively supervised in the community.” — Gwinnett County District Attorney Danny Porter and Oconee County Sheriff Scott Berry,

Gwinnett Daily Post, Feb. 23, 2013

Georgia’s 2013 Juvenile Justice Reform

Public Safety Performance Project

The council recommendations contained in HB 242 and the fiscal 2014 budget advance three priorities: 1 Focus out-of-home facilities on higher-

level offenders

These policies reflect a consensus that the most-expensive resources, most notably, out-ofhome facilities, should be targeted where they have the greatest impact on public safety, while more-effective, less-costly alternatives to such placements should be made available for youth who are adjudicated for lower-level offenses or are less likely to reoffend.

• Create a two-class system within the Designated Felony Act. Designated felony offenses are divided into two classes, based on severity—Class A and Class B—that continue to allow restrictive custody while also adjusting available sanctions to account for both offense severity and risk level. For Class A and Class B offenses, the mandatory minimum confinement periods are eliminated to allow for judicial discretion. In addition,

Broad Support Among the Georgia groups that supported the special council’s recommendations contained in HB 242 were:

•

Prosecuting Attorneys’ Council of Georgia

•

State Bar of Georgia

•

Georgia Association of Criminal Defense Lawyers

•

Council of Juvenile Court Judges of Georgia

•

JUSTGeorgia

The Pew Charitable Trusts

dispositions for Class A designated felony offenses remain a maximum of 60 months. Class B offenses are reduced to a maximum of 18 months in confinement.

• Prohibit residential commitment for all status offenders and certain misdemeanants. Misdemeanor offenders may receive out-of-home placement if their offense history includes four prior adjudications, of which at least one was a felony.

• Establish a voluntary fiscal incentive grant program. The state appropriated $5 million in fiscal 2014 to fund the Juvenile Reinvestment Grant Program, which supports communities in developing evidence-based programs for juveniles. An additional $1 million was added from existing federal funds to increase evidence-based programs in local communities. Localities will assess their current mix of juvenile offender programming and submit proposals to expand their capacity to meet their identified needs. Grants will be awarded through a competitive process and recipients must meet performance goals, including a 20 percent reduction in commitments to state facilities. 2 Reduce recidivism

Research over the past 25 years has identified programs and practices that can achieve significant reductions in recidivism among adult and juvenile offenders. Ensuring that resources are invested in evidence-based or promising practices will improve public safety returns on taxpayer investments. • Ensure that resources are focused on programs proven to reduce recidivism. DJJ is required to include evidence-based programs in its continuum of services.

Public Safety Performance Project

The Special Council and the Juvenile Code Rewrite In addition to recommendations from the Special Council on Criminal Justice Reform for Georgians, HB 242 contained extensive revisions to the juvenile justice and child welfare codes. These changes were the result of years of work by JUSTGeorgia, a coalition of community organizations, and the Young Lawyers Division of the State Bar of Georgia. In 2009, the juvenile code rewrite was introduced as legislation based on work of the Young Lawyers Division and went through more than four years of review by state lawmakers and stakeholders. In 2013, many of the provisions of the rewrite were incorporated into HB 242, including code reorganization, updates to the child welfare system, and new processes for children in need of services and addressing competency in juvenile proceedings.

be administered whenever the court is considering confinement as a disposition for a juvenile. Independent of legislation, but based on recommendations of the special council, DJJ is developing a structured decision-

• Require the use of assessment instruments to better inform decision-making. Detention-assessment instruments must be used before detaining a juvenile in a secure facility, and risk assessments must

Strong Public Support for Reforms Figure 5: Georgia voters strongly support reducing the size and cost of Georgia’s juvenile corrections system and reinvesting in effective alternatives Poll Question:

“Send fewer lower-risk juvenile offenders to a secure facility and use some of the savings to

create a stronger probation system that holds

Total

Acceptable

Strongly

juvenile offenders accountable for their crimes.” Total by Party Affiliation

86% Republican

83% Independent

91% Democrat

Source: Public Attitudes on the Juvenile Justice System in Georgia, February 2013, http://bit.ly/12L5v39. On behalf of Pew’s public safety performance project, Public Opinion Strategies and The Mellman Group conducted a statewide survey in Georgia of 600 registered voters from Jan. 9 to 13, 2013. The margin of error for a survey of this size is plus/minus 4.0 percent. The margin of error is higher for subgroups.

Georgia’s 2013 Juvenile Justice Reform

Public Safety Performance Project

“

We have become smarter in the way we address the enormous cost and the horrible return on investment that our taxpayers are receiving.”

— Judge Michael Boggs, Georgia Court of Appeals, cochairman of the Special Council on Criminal Justice Reform for Georgians22

making instrument for use by probation officers in making recommendations to the court and in determining placement and services for youth. • Focus resources on higher-risk offenders by allowing lower-risk offenders to be placed on administrative caseloads. Courts or probation officers are authorized to place juveniles on administrative caseloads, an alternative type of supervision with a lower oversight level, allowing probation officers to concentrate their efforts on youth who require more intensive supervision.

“

Doing the right thing for our

Assessing and tracking performance outcomes are the first steps in ensuring that the desired results are achieved and give policymakers the information necessary to make informed decisions. • Require performance-based contracting. Any contracts entered into by DJJ for services for delinquent youth must include incentives, penalties, or both to motivate program providers to achieve desired results. • Require uniform data collection and tracking. To ensure that the policies and practices adopted by the state are achieving the desired results, local jurisdictions must collect and report a wide range of uniform data, including offender demographics, offense information, case outcomes, and placement decisions.

children is not a partisan issue.” — Rep. Wendell Willard,

chairman of the House Judiciary Committee, House floor presentation of HB 242, Feb. 28, 2013

3 Improve government performance

The Pew Charitable Trusts

• Require agencies requesting transportation of a juvenile to a secure facility to pay for that transport. To promote accountability for decision-making, any agency requesting the transportation of a juvenile to a detention center will be responsible for all costs associated with the transport.

Public Safety Performance Project

The Special Council on Criminal Justice Reform for Georgians Honorable Michael P. Boggs (cochair) Judge, Court of Appeals of Georgia David Werner (cochair) Deputy Chief of Staff, Governorâ&#x20AC;&#x2122;s Office Representative Stacey Abrams District 84, Atlanta Scott Berry Sheriff, Oconee County Justo Cabral Solicitor-General, Lowndes County Senator John Crosby District 13, Tifton Honorable Jason Deal Superior Court Judge, Northeastern Judicial Circuit

Linda Evans Member, Judicial Qualifications Commission

Daniel J. Porter District Attorney, Gwinnett County

Honorable Ural Glanville Superior Court Judge, Atlanta Judicial Circuit

Representative Jay Powell District 171, Camilla

Honorable Carol Hunstein Chief Justice, Supreme Court of Georgia Honorable Todd Markle Superior Court Judge, Atlanta Judicial Circuit David McDade District Attorney, Douglas County Representative Mary Margaret Oliver District 82, Decatur

Senator Ronald Ramsey, Sr. District 43, Decatur Ken Shigley Past President, State Bar of Georgia Representative Willie Talton District 145, Warner Robins

Honorable Steven Teske Juvenile Court Judge, Clayton County Representative Wendell Willard District 49, Sandy Springs

Oversight Council for Adult and Juvenile Reforms In the 2013 legislative session, the Georgia General Assembly also passed HB 349,23 which included recommendations of the special council related to adult sentencing and corrections. The legislation also created the Georgia Council on Criminal Justice Reform to provide ongoing oversight of the implementation and impact of adult and juvenile corrections reforms. The new council is responsible for establishing performance measures and proposing additional reforms to further reduce recidivism and state expenditures.

Georgiaâ&#x20AC;&#x2122;s 2013 Juvenile Justice Reform

PUBLIC SAFETY PERFORMANCE PROJECT

Endnotes DJJ operates two types of secure residential facilities: youth development campuses, or YDCs, and regional youth detention centers, or RYDCs. There are seven secure YDCs for juveniles adjudicated delinquent and committed to the state. There are 22 secure RYDCs, which are intended as short-term placements for youth who have been charged with delinquent offenses. Some juveniles, however, are held at RYDCs after being found delinquent while they await placement at a YDC or other facility. In addition, DJJ contracts with private providers to place juveniles in nonsecure residential facilities, which are community residential programs that include group homes, emergency shelters, wilderness/outdoor therapeutic programs, and other placements that provide 24-hour care in a residential setting. 1

HB 106: http://opb.georgia.gov/sites/opb.georgia.gov/files/ related_files/site_page/HB%20106%20-%20FY%202014%20 Appropriations%20Bill.pdf. 2

HB 1176 and 2012 legislative reforms: http://www.pewstates.org/ uploadedFiles/PCS_Assets/2012/Pew_Georgia_Safety_Reform.pdf.

percentages may change in future years for a variety of reasons, including revalidating and “renorming” the assessment tool. The adjudicated youth who are in nonsecure residential placement include those placed there as a result of their disposition, as well as youth placed there for reasons not related to their commitment to DJJ, such as a referral from the Georgia Division of Family and Children Services. Youth who are in nonsecure residential placement for reasons not related to their commitment to DJJ would not be affected by the recommendations in this report and were therefore removed before determining impacts. 13

The original designated felony offenses included murder, rape, voluntary manslaughter, aggravated sodomy, armed robbery, attempted murder, kidnapping, attempted kidnapping, arson in the first degree, arson in the second degree, and aggravated assault. 14

O.C.G.A §15-11-63.

According to the Office of Juvenile Justice and Delinquency Prevention, the population of committed juveniles declined 25 percent nationally between 2006 and 2010. http://www.ojjdp.gov/ ojstatbb/ezacjrp. 4

Unless otherwise noted, all analyses in this report were conducted by The Pew Charitable Trusts, based on data provided by DJJ, and analyses were reviewed by DJJ and the Council of Juvenile Court Judges. The total out-of-home population includes all adjudicated youth who are in an out-of-home placement, with the exception of superior court youth. 5

Georgia HB 742, fiscal 2013 Appropriations Bill. Appropriations for DJJ have varied in the past several years, ranging from $265 million in fiscal 2005 to $343 million in fiscal 2009. In fiscal 2012 the appropriation was reduced to $286 million. http://www.djj. state.ga.us/ResourceLibrary/resStatistics.shtml#BUDGET. 6

Validation of an assessment tool is any combination of statistical processes used to determine how accurate the representation created by the tool is compared to that which it intends to measure. Norming of an assessment tool is a comparison to a standard, or recognition of patterns that result from the use of the tools, so as to initially calculate or to later reconsider the scoring and the usage of such an instrument. 17

There are 134 dependent courts in which DJJ handles intake services and case management and oversees probation services. Eight courts share operations between DJJ and the county. There are 17 independent courts in which court employees handle the intake, case management, and probation services. Independent courts also manage their own information systems, many of which are separate from the system used by the dependent counties. 18

See Endnote 1.

HB 242, http://www.legis.ga.gov/Legislation/20132014/135887.pdf.

DJJ.

See Endnote 2.

DJJ. For all youth who were released in 2007, the recidivism rate was 52.5 percent within three years. Recidivism is defined as an adjudication of delinquency in juvenile court or a finding of guilt in adult court for an offense committed within three years of release from an out-of-home facility or placement on community supervision. 9

DJJ.

A status offense is one that would not be a crime if it were committed by an adult. It is only an offense because of the perpetrator’s status as a child. Such offenses include truancy, running away from home, incorrigibility, and unruly behavior. 11

DJJ. Risk percentages are for offenders in 2011 based on the state’s Comprehensive Risk and Needs Assessment tool. These 12

DJJ. Risk percentages are for offenders in 2011 based on the state’s Comprehensive Risk and Needs Assessment tool. These percentages may change in future years for a variety of reasons, including revalidating and “renorming” the assessment tool. 16

THE PEW CHARITABLE TRUSTS

JUSTGeorgia is a statewide juvenile justice coalition whose lead partners are Georgia Appleseed Center for Law and Justice, the Barton Child Law and Policy Center of Emory University School of Law, and Voices for Georgia’s Children. 21

Mike Klein, “Juvenile Justice Bill Would Revise Designated Felony Act.” Mike Klein Online: Public Policy Journalism, Feb. 11, 2013. Retrieved April 22, 2013, from http://mikekleinonline. com/2013/02/11/juvenile-justice-bill-would-revise-designatedfelony-act 22

HB 349, http://www.legis.ga.gov/Legislation/en-US/ display/20132014/HB/349. 23

The Pew Charitable Trusts is driven by the power of knowledge to solve todayâ&#x20AC;&#x2122;s most challenging problems. Pew applies a rigorous, analytical approach to improve public policy, inform the public, and stimulate civic life.

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HB 242 2013 Juvenile Justice Reform Legislation

Landmark Cases in US Juvenile Justice Page 19 of 27

2013 Juvenile Justice Reform Legislation House Bill 2421 Overview In 2012, Gov. Nathan Deal reappointed the Special Council on Criminal Justice Reform. He asked members to study Georgia’s juvenile justice system and craft recommendations that improve public safety and decrease costs. With the help of the Pew Center on the States, a non-partisan research organization, the Council produced a sound set of research-based recommendations. These recommendations were combined with previous legislative efforts led by Rep. Wendell Willard, chairman of the House Judiciary Committee. The resulting legislation reorganizes, revises and modernizes Title 15, Chapter 11 of the Official Code of Georgia Annotated, a section of our law known as the juvenile code. The following provides a summary of key elements of House Bill 242, highlighting changes from current law and reflecting amendments made by the House and Senate Judiciary committees.

Article 1 – General Provisions Article 1 provides general definitions and principles that would apply in all juvenile court proceedings. Specifically, Article 1:  Provides clear definitions of key terms, including: o Abuse. The current juvenile court provisions do not include a definition of abuse. HB 242 defines abuse to include emotional abuse and prenatal abuse, in addition to physical abuse, sexual abuse and exploitation. o Child in Need of Services (CHINS). This definition would create a new designation to take the place of what is currently called an “unruly” child. Detailed provisions related to this new designation are found in Article 5. o Dependency. Currently, Georgia uses the term “deprivation” to describe cases where the court intervenes to protect children from abuse and neglect. HB 242 changes this term to “dependency,” which is the term used in all other states for these cases. o Party. This definition clarifies that children are parties to juvenile court proceedings involving their interests.  Separates the definition of “designated felonies” into two classes. Current law’s designated felony provisions contain apply the same penalty range for nearly 30 offenses that vary widely in severity.2 HB 242 would create a two-class system that continues to allow for restrictive custody in all designated felony cases while adjusting the penalties to take into account both offense severity and risk level.  Requires that, whenever possible, the same judge should preside over all proceedings involving a particular child or family.  Provides jurisdiction for juvenile courts to review services offered to children who stay in foster care after age 18.  Clarifies the jurisdiction of juvenile and superior courts for termination of parental rights in response to a recent Georgia Supreme Court case.3  Clarifies how time should be calculated for purposes of time-limited provisions. 1

Updated March 14, 2013 by the Barton Child Law and Policy Center, Emory University School of Law. See O.C.G.A. § 15-11-63 (2013). 3 See Brine v. Shipp, 291 Ga. 376 (2012). 2

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 Allows the court to consolidate proceedings if the same child is alleged to be both deprived and delinquent or in need of services.  Clarifies that a child, as a party, has a right to be present during juvenile court proceedings involving him or her, but allows the court to exclude the child from any part of the proceeding that the court finds is not in the child’s best interest to attend.  Allows the court to refer cases for mediation if appropriate, and provides procedural guidance.  Outlines factors the court should consider when evaluating the best interests of a child. These factors have been aligned as closely as possible with similar factors in the domestic relations section of the Georgia Code,4 while still respecting the uniqueness of the cases facing juvenile courts.  Prevents the court from requiring a state agency or county government to perform an evaluation of a child if the agency or government does not have funds for evaluations.  Protects children from having statements they make in court-related physical or mental health screenings, evaluations or treatment from being used against them at the adjudicatory phase of any proceeding except for impeachment or rebuttal, but allows courts to consider those statements in determining the child’s placement or other dispositional matters.  Allows the court to change or vacate a delinquency order if the child was found to have committed a prostitution-related act and was a victim of human trafficking or sexual exploitation.  Provides a time limit for the court to certify expenses for payment by the county. If the court has not certified the expenses within 120 days of submission, certification will be considered denied.  Clarifies the applicability of privacy laws in the juvenile court system, and outlines the steps required for access to different types of information.

Article 2 – Juvenile Court Administration Article 2 governs the creation and administration of juvenile courts and the appointment of judges. Article 2 reorganizes existing provisions and makes minor stylistic revisions. It contains very few substantive changes from current law. Changes include:  Adds the Department of Juvenile Justice to agencies whose records the Council of Juvenile Court Judges is authorized to inspect for the purposes of compiling statistical data on children.  Requires juvenile court judges to complete at least 12 hours per year of continuing education established or approved by the Council of Juvenile Court Judges.  Requires anyone appointed as a pro tempore judge to have the same qualifications as other juvenile court judges.  Requires the clerk of each juvenile court to collect data for each child in need of services, delinquent child, and child accused of a class A or B designated felony and to supply that data to DJJ.  Allows a probation officer to place a child he or she is supervising on unsupervised probation if the probation officer determines it is appropriate and the court has not ordered otherwise.  Clarifies that the Department of Juvenile Justice retains authority over the duties and responsibilities of their employees who serve as probation and intake officers, and that these duties cannot include tasks that could be construed as the practice of law.

Found in O.C.G.A. 19-9-3.

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Article 3 – Dependency Article 3 relates to cases involving children who have been abused or neglected by the adults responsible for their well-being. HB 242 would rename what are currently known in Georgia as “deprivation” cases, calling them instead dependency cases. This change will stress the child’s relationship with the court and provide consistency with national standards. Article 3 reorganizes current law, and makes the following changes:  Clarifies the purpose of dependency proceedings, stressing timeliness, permanency and protection.  Allows child abuse and neglect investigators to request court-ordered physical or psychological evaluations of children or their parents. Courts are to review these requests using a probable cause standard.  Changes the name of 72-hour hearing in dependency cases to the “preliminary protective hearing.”  Consolidates provisions related to the timeframes in which different steps in a dependency case must occur into one code section for ease of reference.  Shortens the timeline for holding a permanency planning hearing for children under the age of 7. Currently, all children are on the same timeline, which requires a permanency hearing within 12 months after their entry into foster care.5 HB 242 leaves this timeline in place for children age 7 and older, but shorten it to within nine months for younger children and the siblings of younger children.  Clarifies that a child in any dependency case is entitled to an attorney and guardian ad litem, and that the same person can be appointed in both capacities unless or until a conflict arises between an attorney’s duties to the child as client and the attorney’s considered opinion of the child’s best interests. The child’s right to an attorney cannot be waived.  Stresses the important role a Court-Appointed Special Advocate (CASA) can play, and that appointment of a CASA may be appropriate even if the child’s attorney is also serving as guardian ad litem.  Provides specific guidance for attorneys and courts regarding when deviations from case timelines may be requested and granted. These deviations, known as “continuances,” must be for good cause and may not be granted simply because the parties agree or because a later time would be more convenient. The court must always consider the child’s interests, giving particular weight to the child’s need for prompt resolution and stability.  Creates a presumption that visitation between a child and his or her parents or other relatives should be unsupervised, unless the court finds that unsupervised visitation is not in the child’s best interests.  Allows the court to issue an oral or electronic order for the removal of a child from his or her home. When this occurs, an affidavit containing supporting evidence must be submitted to court the next business day and the court must issue a written order.  Emphasizes that siblings who are taken into the state’s care should be kept together whenever possible.  Clarifies the rules governing the gathering of information related to a case, known as “discovery.” HB 242 provides clear guidelines about which common evidence in a dependency case must be given to another party upon request, and which requires consent or a court order. Requested information must be provided within five days or by 72 hours before the hearing, to accommodate the quick pace of proceedings in juvenile court. The court has discretion to prevent disclosure of evidence that may be harmful, and to sanction parties who fail to comply with discovery rules.

See O.C.G.A. § 15-11-58(o) (2013).

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 Describes content that should be included in social study reports, stressing the need for information about children’s relationships with their siblings and extended family and consideration of how these relationships can best be maintained.  Outlines the requirements for case plans.  Clarifies that the Division of Family and Children’s Services (DFCS) must show it has made reasonable efforts to preserve or reunite the family or to find another permanent home for the child at every hearing, and provides factors for the court to consider in determining whether reasonable efforts have been made.  Changes one of the exceptions to the requirement to make reasonable efforts to preserve or reunify a family. Currently, reasonable efforts do not need to be made if the parental rights of the parent to a sibling of the child have been terminated.6 Under HB 242, to apply this exception to the reasonable efforts requirement, the court must also determine whether the parent has resolved the issues that led to the termination of his or her parental rights to the sibling.  Incorporates a new requirement of federal law to include two new circumstances in which reasonable efforts to reunify the family are not required. These are when the parent has been convicted of sexual abuse of the child or another child of the parent, or when the parent is required to register as a sex offender and preservation of the parent-child relationship is not in the child’s best interests.  Improves compliance with federal law regarding permanency alternatives by eliminating the option for a court to place a child in someone’s long-term custody without creating a legal guardianship.  Requires the court to make detailed findings to support placement and case plan decisions, known as “dispositions.” In making these findings, the court is to consider the child’s attachments to significant people and his or her school, home, and community.  Removes the time limitation on temporary custody orders. Under current law, a court may only grant temporary custody to DFCS for 12 months, and can extend that custody order by no more than an additional 12 months.7 Under HB 242, custody orders are not time limited. Instead, they last until a contrary order is made or the purpose of the order has been fulfilled.  Requires an initial review hearing within 75 days of a child’s removal from his or her home, and a subsequent review hearing within four months after that. Currently, the initial review must happen within 90 days, and subsequent reviews occur at six-month intervals.8  Identifies specific findings that must be made by the court at review hearings, requiring that the court evaluate whether the child continues to be dependent and whether the placement, case plan, and services offered to the child and the parents continue to be appropriate.  Eliminates the option for courts to delegate permanency hearings to citizen review panels. These hearings would be required to be conducted by judges.  Details the requirements for permanency planning reports. DFCS must document the steps that will be taken to move the child to a permanent home, and if the plan is not reunification, adoption, or permanent guardianship, DFCS must document a compelling reason for a different plan. For children age 14 and older, the report must also describe services that will be provided to help the child prepare for independent living in adulthood.  Identifies specific findings that must be made by the court at permanency hearings.

See O.C.G.A. § 15-11-58(a)(4)(c) (2013). See O.C.G.A. § 15-11-58(n) (2013). 8 See O.C.G.A. § 15-11-58(k) (2013). 7

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

Continues the presumption of termination of parental rights if a child cannot be reunified with his or her parent, but expands the list of exceptions to this presumption when termination may not be in the best interests of the child.

Article 4 – Termination of Parental Rights Article 4 governs cases involving a petition to involuntarily terminate the rights of a parent to the custody and control of his or her child because the parent is unable to safely and adequately care for the child. These petitions generally follow dependency proceedings, and therefore several provisions cross-reference or incorporate changes made by Article 3. Additionally, Article 4:  Clarifies the purpose of termination of parental rights (TPR) proceedings, stressing timeliness, and protection of parties’ constitutional rights.  Allows a child to retain the right to inherit from his or her natural parents and to receive any government or other benefits associated with the parent after TPR until the child is adopted by another family.  Preserves a child’s relationships with siblings and other extended family after TPR until the child is adopted by another family.  Prevents a parent from voluntarily surrendering his or her parental rights to anyone except for DFCS once a petition for TPR has been filed with the court. Currently, a parent can surrender rights to allow the child to be adopted by a family member or other person of the parent’s choosing at any time.9  Provides language that must be included in a notice to a parent when a petition for TPR is filed. This language explains in clear terms the effect of a court order terminating parental rights and advises the parent that he or she is entitled to be represented by an attorney.  Requires that transcripts of TPR hearings be produced within 30 days of the filing of an appeal of a TPR order, unless there is just cause for delay.  Shortens the length of time a parent’s failure (1) to develop and maintain a bond with the child; (2) to provide support; or (3) to comply with court-ordered reunification services should be scrutinized by the court in determining whether the parent has provided proper care or control. Under current law, if a child is not in his or her parents’ custody, the court looks at the bond, support and participation in services over a year or more.10 Under HB 242, this time frame is reduced to six months.  Clarifies that a parent’s reliance on prayer or spiritual healing instead of medical care does not, by itself, constitute grounds for termination of parental rights.  Requires the court to inform the parents whose rights have been terminated of their rights to use the services of the Adoption Reunion Registry.  Eliminates the option to place a child with an organization outside of the adoption and foster care system for long-term care of the child without adoption or guardianship after TPR.  Allows a child who has not been adopted and is unlikely to be adopted to ask the court to reinstate his or her parents’ parental rights under certain circumstances. In making the determination of whether to grant the request, the court must hold a hearing and consider whether the parent has remedied the situation that resulted in the TPR and whether reinstatement of parental rights is in the child’s best interests. The court retains supervision over the case for six months after the request is granted, and can return the child immediately or order a gradual transition with appropriate DFCS services.

See O.C.G.A. §§ 19-8-5, 19-8-6, and 19-8-7 (2013). See O.C.G.A. § 15-11-94(b)(4)(C) (2013).

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Article 5 – Children in Need of Services Article 5 creates a new approach for intervening with children who are currently considered “unruly.” Children in Need of Services (CHINS) include children who have committed an act that would not be against the law but for the fact that they are children, such as skipping school, running away from home, and violating curfew. CHINS also include children who are “habitually disobedient” to their parents and place themselves or others in unsafe circumstances through their behavior. Article 5:  Acknowledges that these behaviors happen within the context of the family and school environment the child is in, and that the involvement of the family and other important people in the child’s life is important to protect the child and help him or her become a responsible member of society.  Allows a complaint indicating that a child is in need of services to be filed by a parent, DFCS, school, law enforcement, guardian ad litem, or attorney. If the school brings the complaint, it must state that it has attempted to address the issue at the school level before filing the complaint with the juvenile court, including addressing any disabilities or suspected disabilities that may be contributing to the child’s behavior.  Provides that a child is entitled to representation by an attorney at all stages of CHINS proceedings. The child may either receive a court-appointed attorney if he or she is indigent or employ an attorney of his or her choice. The court can also appoint a guardian ad litem, when appropriate, and should appoint a CASA to fill that role whenever possible.  Collects all time-frames for CHINS proceedings into one code section for ease of reference.  Allows a child in need of services to be taken into temporary custody if the child has run away from home, the child is in immediate danger from his or her surroundings, or the court reviews a detention assessment and makes an order specifying that the child’s welfare is endangered by remaining at home and reasonable services cannot solve the problem.  Clarifies that in CHINS cases, children should receive services in the least restrictive environment possible, preferably at home with their parents, but if that is not appropriate then children should be in DFCS care. The court must consider whether services could be structured to allow the child to remain in his or her home.  Prohibits a child in need of services from being held in a jail or other detention facility intended for adults, and limits the use of secure detention to only those children who have run away from home or who are ungovernable. A child in need of services may not be held in secure detention for more than 72 hours before a court hearing and 72 hours after the hearing.  Requires a case plan for a child who is placed in foster care, and details what this plan should include.  Retains the ability for any person to file a petition to have a court formally adjudicate that a child is in need of services. The petition may not be filed unless the court determines that its filing would be in the best interests of the child and the community.  Provides that a petition that stems from a complaint filed by a school official must be dismissed unless the school has already attempted to resolve the problem through educational approaches, including evaluating a child for special education services if appropriate.  Allows the court to order child-serving agencies to attend court hearings and to sanction an agency if it fails to attend.  Establishes that in order for a court to adjudicate that a child is in need of services, the allegations in the petition must be proved by clear and convincing evidence.

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Extends the timeframe for holding a disposition hearing to within 60 days after the hearing in which a court determines that a child is in need of services. Currently, disposition hearings must be held within 30 days.11 Retains most of the disposition options currently available for unruly children, including placing the child on probation and requiring restitution or community service, but clarifies that a child in need of services cannot be placed in a secure residential facility or a non-secure residential facility. Limits the duration of a disposition order to a maximum of two years, but allows the court to extend for an additional two years after a hearing, if necessary. The court can also terminate the order early if the purposes of the order have been accomplished. Clarifies that if a child violates probation the court may modify the terms of the child’s probation or make any other disposition that was originally available to the court when the child was adjudicated to be in need of services. Requires the court to review the child’s disposition after three months, and then at least every six months after that until the order of disposition expires. Provides a process for serving children who have been found to be incurably incompetent to stand trial, meaning that because of a permanent disability or limitation they will never be able to understand the charges or legal proceedings and assist an attorney in their defense for an act that would have been a crime if they were adults. Children whose competence can be restored are subject to Article 7.

Article 6 – Delinquency Article 6 relates to cases involving children who have committed acts that would be crimes if the children were adults. These acts are known as “delinquent acts” and the cases are known as “delinquency” cases. Article 6 reorganizes and clarifies the delinquency provisions of current law, and makes the following changes:  Clarifies that the purposes of delinquency proceedings include protecting the public interest, holding children accountable for their actions, rehabilitating children so that they can become productive members of society, and strengthening families.  Consolidates all timelines related to delinquency proceedings into one code section for ease of reference.  Requires a prosecuting attorney to conduct all delinquency proceedings on behalf of the state.  Clarifies that the child and the state are the parties in a delinquency proceedings. Parents are entitled to be notified of hearings, and have the right to be present for hearings and to be heard in those hearings, but are not parties.  Provides that a child’s right to be represented by an attorney cannot be waived by the child’s parent, but can be waived by the child, unless the child is at risk of losing his or her liberty.  Gives the child’s attorney the right to access documents related to the case from schools, service providers and certain government agencies with the child’s permission and a court order and therefore without having to obtain the consent of his or her parent.  Requires the court to appoint a separate guardian ad litem for the child when his or her parent fails to come to court or is unwilling or unable to protect the child’s best interests. A CASA should be appointed to serve as guardian ad litem whenever possible.

O.C.G.A. § 15-11-65 (2012).

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 Allows the court to order a behavioral health evaluation to aid in decision making about the child’s needs, and requires the court to obtain and consider the results of a behavioral health evaluation before ordering a child into restrictive custody for a designated felony.  Provides that continuances may only be granted if there is good cause, and that they should be as short as possible.  Excludes statements made by a child during intake, screening, treatment, or evaluation from evidence, meaning that these statements cannot be considered by the court, except as impeachment or rebuttal if the child tells a conflicting story in court.  Clarifies when the double jeopardy protection of the U.S. Constitution applies. Once the court accepts a child’s admission or the first witness is sworn in for an adjudication hearing, the child can no longer be retried for the same offense if the current case is dismissed or ends in a finding that the child did not commit the act.  Provides victims with the same rights in juvenile delinquency cases that they would have in adult criminal proceedings.  Requires that whenever the juvenile is brought before the court or to a secure or non-secure facility, a detention assessment be used to determine if a juvenile should be detained or released. A detention assessment instrument is a standardized tool used to evaluate the risks a child poses to the community and to him or herself and to determine whether a child who has been taken into custody should be held in detention pending a court hearing or should be released to his or her parents.  Clarifies the circumstances under which a child age 15 or older can be held in an adult jail. In most cases, the child may be held for processing for up to six hours. However, if the jail is more than 70 miles from the nearest regional youth detention center, a child may be held there for up to 24 hours if strict conditions are met.  Requires all facilities in which detained children are held to collect certain data on the children in their care, and to make that data available to the courts and the Department of Juvenile Justice (DJJ).  Clarifies that children held for delinquent acts are entitled to request bail and must be told of their right to do so. The court can release a child on bail if the child is likely to appear in court when required, does not pose a significant threat to the community or his or herself, and does not pose a significant risk of committing a felony, intimidating witnesses, or obstructing justice upon release. Bail must be posted by an adult blood relative, legal custodian, or stepparent.  Provides procedural guidance for intake and arraignment, requiring that a child be informed of the contents of the complaint, the nature of the proceedings, the possible consequences, and their rights with respect to their detention and the proceedings. It also clarifies that a court cannot accept an admission at arraignment from a child who is at risk of losing his or her liberty unless he or she is represented by a lawyer.  Adds factors that should be considered in determining whether filing a petition or proceeding by informal adjustment is in the public and the child’s best interests. “Informal adjustment” means a minimal level of short-term supervision, the successful completion of which leads to the dismissal of the complaint. Children accused of designated felonies are not eligible for informal adjustment without the agreement of the prosecutor.  Requires that an attorney file a delinquency petition. Under current law, any person can make a delinquency petition, which then must be endorsed by the juvenile court as being in the best interest of the public or child.12

See O.C.G.A. §§ 15-11-37 and 15-11-38 (2013).

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 Requires the petition to specify if the child is being charged with a designated felony. Clarifies the process for service of summons, which is the legal notice that a hearing is to be held and that the person being served is required to attend. The court may issue a bench warrant, which is an order to bring the person before the court, if a child age 16 or older or a parent fails to attend a hearing for which he or she has been summoned.  Allows the court to apply any sanction that would apply in superior court if a party fails to provide the other party with information required to be shared under discovery rules.  Retains provision requiring transfer of a case to superior court for adult criminal proceedings if a child older than 13 is alleged to have committed certain specifically listed offenses, such as murder and rape.  Allows the superior court to transfer cases involving aggravated sodomy, aggravated child molestation, and aggravated sexual battery to the juvenile court for extraordinary cause.  Retains the optional transfer to superior court of cases involving children age 15 and older who are alleged to have committed acts that would be felonies if they were adults, and cases involving children ages 13 and 14 who are alleged to have committed acts that would carry a life sentence if they were adults or would be aggravated battery that resulted in serious bodily injury to the victim.  Adds criteria that should be considered by the court in determining whether to make an optional transfer to superior court. Statements made by the child during a transfer hearing may not be used against him or her, except as impeachment or rebuttal, in the criminal trial if the hearing does result in transfer.  Allows the court to order a transfer evaluation of the child be performed by the Department of Behavioral Health and Developmental Disabilities or a licensed psychologist or psychiatrist. The purpose of the evaluation is to provide information on the child’s behavioral health status, treatment needs, and receptiveness to rehabilitation, to help inform the court’s decision about whether to grant a requested transfer to superior court.  Allows a child to immediately appeal the decision to transfer his or her case to superior court, and provides that the criminal proceedings must be halted until that appeal is decided.  States that a child whose case is transferred to adult court should remain in juvenile, rather than adult, detention facilities until the child turns 17.  Requires that if multiple charges arose from the same actions by the child, or a “single criminal transaction,” all the related charges must stay together and either be all kept in juvenile court, or all transferred to superior court.  Provides procedural guidance for the court’s acceptance of a child’s admission or denial of the charges, and for adjudication hearings.  Outlines the information that should be included in a probation officer’s report to the court providing information and recommendations for disposition. Specifically, the report should include information on the child’s background, relationships, home environment, prior contact with law enforcement and the courts, educational status, and medical and psychological evaluation results. It should also examine the circumstances of the crime, including its seriousness, and any aggravating or mitigating factors.  Allows the court to order a behavioral health evaluation of the child be performed by the Department of Behavioral Health and Developmental Disabilities or a licensed psychologist or psychiatrist. The purpose of the evaluation is to provide information on the child’s behavioral health status and treatment needs, to help inform the court’s disposition order. The evaluation is optional in most

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cases, but must be ordered and considered by the court before the child can be given a disposition involving restrictive custody for a designated felony. Retains most of the current disposition options for a delinquent child, but requires the court to consider the results of the child’s risk assessment if the court is considering placing the child in restrictive custody. Children found to have committed offense that would be misdemeanors if they were adults may not be committed to DJJ or sent to secure detention or other facilities for delinquent children unless they have had at least three other previous delinquent offenses, at least one of which would have been a felony if they were adults. Adds an option for the court to place a child on unsupervised probation, subject to terms and conditions outlined by the court. Adds additional factors for a judge to consider in determining whether to order restrictive custody for a child who has committed either a class A or class B designated felony. Specifically, the court must consider the child’s maturity, culpability, and educational and dependency background. If the child has been determined to be a low-risk offender and the court orders restrictive custody, the court must specify in writing why restrictive custody is necessary. However, if the child has caused serious injury to a person aged 72 or older, the child must be ordered into restrictive custody. Provides flexibility to judges in determining the length of sanctions for children adjudicated of a designated felony. Currently, if a court determines that restrictive custody is required, the child must be committed to DJJ for five years and must serve a minimum of one year in secure confinement, followed by at least 12 months of intensive supervision.13 HB 242 creates two classes of designated felonies and would eliminate the minimum term and provide different maximum terms, depending on the class level of the offense. Class A designated felonies would have a maximum term of five years, and class B designated felonies would have a maximum term of 36-month commitment to DJJ and 18 months in confinement. The maximum term of intensive supervision would be 12 months for class A offenders and 6 months for class B offenders. The court could set any term up to those maximums. Provides flexibility for DJJ in placing children found to have committed class B designated felonies. Children assessed to be low risk may be assigned to non-secure residential facilities for their entire term. Children assessed to be medium or high risk must spend at least the first half of their terms in a secure residential facility, but can be placed in a non-secure residential facility for the remainder of their terms. Reduces the time before a child found to have committed either class of designated felony may petition the court for early release. Currently, a child may not file a motion for early release until one year into his or her term of restrictive custody and if the motion is denied, may not bring another motion for another year.14 Under HB 242, the first motion may be filed at any time, and a new motion may be filed six months after a motion has been denied. Requires that a child receive credit for time spent in secure confinement in connection with the proceedings and that this time be deducted from detention time imposed at disposition.

Article 7 – Competency in Delinquency Cases Article 7 governs the way courts determine whether a child is competent to participate in delinquency or child in need of services proceedings, and how the court responds to a child who is not competent. Competency is important because due process requires that people not be subjected to the possible loss of their liberty in criminal or delinquency cases unless they understand the charges, the legal proceedings, and have the capacity

See O.C.G.A § 15-11-63(e)(2009). O.C.G.A. § 15-11-63(e)(2).

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to effectively assist their attorney in their defense.15 Article 7 of HB 242 revises current law regarding competency in juvenile proceedings. Specifically, it:  Replaces the term “mental health evaluation” with “competency evaluation” for purposes of this article.  Requires that if a child under the age of 13 is accused of committing a serious violent felony,16 the court must order a competency evaluation before delinquency proceedings can move forward, unless the parties agree as to the child’s competency.  The court retains the ability it has under current law to order an evaluation on its own motion or the motion of any party.  Provides different responses depending on whether it is likely that an incompetent child is likely to ever become competent. Current law uses the same framework for all incompetent children.17  Requires that when a court finds that a child is unlikely to ever be competent to stand trial, it must dismiss the delinquency petition, appoint a plan manager, and order that a comprehensive services plan be instituted for the child. If a child has been found incompetent due to their age or immaturity, and will become competent eventually but not in the near future, the same approach applies.  Allows the court to order services for a child facing a delinquency petition who is currently incompetent but may become competent in the near future. The purposes of the services are to help the child attain competency to participate in delinquency proceedings. If a child facing a child in need of services petition and is currently incompetent but may become competent in the near future, the petition must be dismissed without prejudice, meaning that it could be filed again in the future.  Stresses a preference for treatment in the least restrictive environment appropriate to the child’s needs.  Outlines the information that needs to be included in a court order for services to help the child attain competency. Specifically, the court order must include the name and location of the service provider, consideration of transportation for the child to services, and the length of time the services are to last.  Requires service providers to report on the child’s progress on a schedule established by the court. The report must include the provider’s view on whether the child can become competent in the near future, whether additional time is needed for services, and other appropriate information. Only a licensed psychologist or psychiatrist may offer an opinion to the court as to whether the child has achieved competency.  Clarifies the requirements for competency review hearings and for reinstating delinquency proceedings once a child’s competency is restored.

Article 8 – Parental Notification Article 8 renumbers provisions of current law requiring notification of parents when people under the age of 18 seek abortions. The language of these provisions is not modified by HB 242; the provisions are simply renumbered to fit into the new structure of O.C.G.A. Title 15, Chapter 11.

See Drope v. Missouri, 420 U.S. 162 (1975), and In the Interest of S.H., 469 S.E.2d 810 (Ga. App. 1996). “Serious violent felony” is defined in O.C.G.A. § 17-10-6.1 (2009). 17 See O.C.G.A. §§ 15-11-150 – 15-11-155 (2009). 16

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Article 9 – Access to Hearings and Records Article 9 governs access to hearings and records in juvenile proceedings. For the most part, Article 9 maintains the current level of confidentiality, with the following specific changes:  Clarifies that while the court may decide to exclude a child from certain portions of proceedings under Articles 3 and 4 if it is in the child’s best interests, the child’s lawyer may not be excluded.  Allows the court to order the sealing of a child’s delinquency records for prostitution-related offenses if the child was a victim of human trafficking or sexual exploitation.  Adds the Department of Juvenile Justice to the list of entities that should be notified when a child requests a hearing to have his or her juvenile delinquency or child in need of services records sealed.  Removes language regarding the release of names or pictures of children to the press.  Eliminates provisions giving school officials broad access to court and law enforcement records about a child, but continues to require notice to school superintendent in certain circumstances.18  Restricts access to court records in Children in Need of Services cases. They may only be inspected by the child, the child’s attorney, probation officers, parents, and others entrusted with supervision of the child, unless additional access is granted by court order.  Expands the use of delinquency records in superior court. Under current law, records of evidence or disposition from a delinquency case may only be used in sentencing in felony cases.19 HB 242 would allow those records to be used in sentencing for any criminal case, whether felony or misdemeanor.  Requires that the court keep records of cases handled through informal adjustment or mediation, but limits the use of these records to decisions regarding how to handle a subsequent case involving the same child. The records may not be used as evidence at trial that a child should be adjudicated delinquent or in need of services.  Clarifies that court records regarding termination of parental rights may not be destroyed at any time, but rather must be permanently kept by the court.

Article 10 – Emancipation Article 10 relates to “emancipation,” which is the process by which a child becomes a legal adult responsible for his or her own care and able to enter into contracts and other adult transactions. Emancipation also releases parents from their obligations to the child and their rights to the care and control of the child. A child is automatically emancipated when they turn 18, when they marry, and when they enlist in the U.S. military. Current law also provides for a child who does not meet these automatic criteria to petition the court for early emancipation. Article 10 of HB 242 reorganizes and clarifies current law regarding emancipation, but does not make any substantive changes.

Article 11 – Child Advocate for the Protection of Children Article 11 renumbers provisions of current law establishing the Office of the Child Advocate and governing its operation. The language of these provisions is not modified by HB 242; the provisions are simply renumbered to fit into the new structure of O.C.G.A. Title 15, Chapter 11.

18 19

See O.C.G.A. § 15-11-80 (2013). See O.C.G.A. § 15-11-79.1 (2013).

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Provisions Outside the Juvenile Code While the vast majority of HB 242 is a rewrite of O.C.G.A. Title 15, Chapter 11, some related provisions outside the juvenile code would also be amended. Those additional changes include:  An amendment to O.C.G.A. § 42-5-52 that would allow DJJ to transfer a child age 16 and older to the Department of Corrections if the child was committed to DJJ for either class of designated felony act and the child’s behavior presents a substantial danger to someone in the DJJ facility.  An amendment to O.C.G.A. § 49-4A-1 to define key terms, including detention assessment, evidence based programs or practices, risk and needs assessment, and risk assessment.  An amendment to O.C.G.A. § 49-4A-2 to: Require that detention assessments, risk assessments, and risk and needs assessments be developed, made available for use by intake workers and courts, and validated every 5 years. o Require DJJ to develop policies and regulations to ensure the use of evidence-based practices with children committed to DJJ. o Require DJJ to collect and analyze data and performance outcomes and to report that information to the leadership of the executive and legislative branches of Georgia government.  An amendment to O.C.G.A. § 49-4A-3 that: o Clarifies that the same person may not serve as both the Commissioner of the Department of Human Resources and the Commissioner of the DJJ. o Requires the use of evidence-based services and practices for children committed to DJJ.  An amendment to O.C.G.A. § 49-4A-7 that requires any DJJ contract to provide services to delinquent children be a performance-based contract that includes financial incentives or consequences based on the results achieved by the contractor as measured by output, quality, or outcomes measures.  An amendment to O.C.G.A. § 49-4A-8 that requires DJJ to maintain records on of specified data for evaluating the merits of treatment methods.  Amendments to various statutes to clarify types of facilities by shifting away from the term “youth development center” and “regional youth detention center” and other facility terms to “secure residential facility” and “non-secure residential facility.”  An amendment to O.C.G.A. § 17-4-25.1 that requires the agency requesting transportation of a juvenile to be responsible for all costs associated with the transport.  Adds a new code section to Title 15, Chapter 18 to clarify the representation of the state in delinquency cases. Under new section 15-18-6.1, the District Attorney’s office has responsibility for prosecuting delinquency cases in juvenile court and appeals from those cases, though the District Attorney can delegate certain types of cases to the Solicitor General. If the District Attorney’s office lacks the resources to provide representation of the state in delinquency cases, notice must be sent to the chief judge of the superior court, the juvenile court judges, and the chair of the county governing authority, at which point the county can appoint an attorney or attorneys to serve as prosecutors for the juvenile court.  Various amendments to keep language consistent and update cross-references.  Provides that the new law would take effect on January 1, 2014. To download a full copy of the bill, click here: http://1.usa.gov/Yfh94F About JUSTGeorgia: JUSTGeorgia is a statewide juvenile justice coalition created in 2006. Its purpose is to advocate for change to Georgia’s juvenile code and the underlying social service systems to better serve Georgia’s children and promote safer communities. The lead partners that formed JUSTGeorgia are Georgia Appleseed, The Barton Child Law and Policy Center of the Emory University School of Law, and Voices for Georgia's Children. Their efforts were launched by philanthropic funding. www.JUSTGa.org. 100 Edgewood Ave. NE Atlanta, GA 30303 404-521-0311 www.justgeorgia.org

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Juvenile Law & Procedure

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Expungements & Pardons In Georgia

Landmark Cases in US Juvenile Justice Page 21 of 27

10/7/2014

Expungements and Pardons Our Mission The Mission of The Advocacy Foundation is Threefold: To Rescue Young Persons From the Prison Pipeline and Help Redirect and Restore Their Lives;

The Advocacy Foundation 100 Edgewood Avenue, Suite 1690 Atlanta, GA 30303

To Teach New and Fledgling Nonprofit Organizations to Become Fundable, Thrive, and Maintain Compliance;

(855) ADVOC8.0 (855) 238-6280

www.TheAdvocacyFoundation.org

To Train Qualified Professionals With a Passion for Effective Careers in The Juvenile Justice System.

Biblical Authority Isaiah 55: 7 (NIV) 7

Let the wicked forsake their ways, and the unrighteous their thoughts. Let them turn to the LORD, and he will have mercy on them, and to our God, for he will freely pardon. Romans 3: 23-24 23 for

all have sinned and fall short of the glory of God, 24 and all are justified freely by his grace through the redemption that came by Christ Jesus.

What is an Expungement? Expungement is a process through which information about an arrest and the result will be removed from a criminal history. Expunged arrests are not visible to employers, housing providers, or licensing agencies that are reviewing the official criminal history. Expunged information will still be visible to law enforcement agencies, however, including prosecutors and courts.

10/7/2014

Can I get a record expunged if I pled guilty or was found guilty at trial? If you pled guilty or were found guilty at trial you were convicted. Under the former Expungement law, convictions were never eligible to be removed from your criminal history. A plea of Nolo Contendere (No Contest) is technically a guilty plea. Under the new law, however, which went into effect July 1, 2013, certain limited categories of convictions are be eligible for expungement. • if you were convicted of certain misdemeanors before you turned 21 you may be able to petition the court for the expungement of those records. • if you were charged with a misdemeanor offense and sentenced under the Conditional Discharge statute (O.C.G.A. 16-13-32) the record will be eligible for expungement.

Can I get a record expunged if it was dismissed or not prosecuted? If the charges were dropped before the case was formally charged (indicted or accused) then your charge will be eligible for expungement as long as: 1. you do not have any pending charges; and 2. you are not on probation or parole; and 3. you have not been convicted of a similar charge within the last five years. NOTE: Under the new law, which went into effect July 1, 2013, people with a pending case, or people who have been convicted of a similar crime within the last five years, are still eligible, subject to approval, for the expungement of a record on their criminal history.

Continued You also could not get your charges expunged if they were dismissed or not prosecuted for one of the following reasons under the old law: 1. You pled guilty to something related to the current arrest (even if you pled only to a misdemeanor but were originally charged with a felony); 2. Your case was dismissed because the prosecutor was prevented from introducing material evidence against you (such as a successful motion to suppress evidence and/or statements); 3. Your case was dismissed because a material witness refused to testify (unless they had a statutory right not to testify); 4. You were incarcerated on other charges and the prosecutor decided not to proceed with the case for reasons of judicial economy; 5. You completed a pretrial diversion program and the court order did not say you could get the charge expunged; 6. The arrest was part of a pattern of criminal activity and you were prosecuted in another court for this conduct; or 7. You had diplomatic, consular, or other immunity from prosecution. NOTE:

With the new, which went into effect July 1, 2013, exceptions 3, 4 and 5 will no longer apply and the records of these cases will be eligible for expungement.

10/7/2014

Can I get a record expunged if I was found not guilty at trial (aka acquitted)? Acquittals were not eligible for expungement under the old law. NOTE: Under the new law, however, as of July 1, 2013, acquittals will be eligible unless the prosecutor convinces the judge that the charges should not be expunged. NOTE: After July 1, 2013, in very limited circumstances, if you were originally charged with a felony but convicted of an unrelated misdemeanor you can petition the court to get your record expunged.

Does expungement depend on whether I was charged with a misdemeanor or felony offense? No, under the former law it didn’t matter whether the charge was a misdemeanor or a felony, what mattered was how the case was resolved. Under the former law, any charge (misdemeanor or felony) was eligible for expungement if you: 1. 2. 3. 4.

NOTE:

had no pending cases; and were not on probation or parole; and had no similar convictions within the last five years; or the charges were dismissed, not prosecuted, or dead docketed and were not subject to the exceptions.

Under the new law, as of July 1, 2013, the only time the severity of the crime (whether it was a misdemeanor or felony) will matter is if you were convicted of certain misdemeanor offenses before the age of 21 and want to petition the court for the expungement of the record. Also, only those charged with certain misdemeanors can be sentenced under the Conditional Discharge Statute (O.C.G.A. §16-13-2).

Can I get a record expunged if I was released from jail and never went before a judge? Under the prior law if your charges were dismissed by law enforcement, or if the prosecutor did not move forward with the case, you could get the arrest and charges expunged as long as you: 1. 2. 3.

did not have a pending case; were not on probation or parole; and had not been convicted of a similar offense within the last five years.

NOTE: Under the new law, as of July 1, 2013, arrests closed by the arresting agency should be automatically expunged. And arrests not referred for prosecution should be automatically expunged after a certain period of time. Arrests referred for prosecution but not formally charged should also be automatically expunged.

10/7/2014

How do I apply for expungement? Under the prior law, expungement was a multi-step process. The process and fees varied slightly from agency to agency, but generally expungement costs were about $50 per arrest and took 612 months to complete, depending on the jurisdiction. Here’s the current process: STEP 1: Submission of an application for expungement to the arresting agency. Each arresting agency may require additional documentation or fees (up to $25) in addition to the application. STEP 2: The arresting agency, after review, forwards the application to the relevant prosecuting attorney’s office which determines if your charge is eligible for expungement. STEP 3: After review, the prosecutor returns the application to the arresting agency. If the prosecutor approved your application the arresting agency will destroy the fingerprint cards and certain other documentation pertaining to your arrest and then return the application to you. Note: If your application is approved, you must send it to GCIC with a $25.00 money order so that the charge is removed from your criminal history. If your application is denied it will be sent back to you and you will have only 30 days to file an appeal.

Do I need an attorney to apply for expungement? You do not need an attorney to apply for expungement. You can obtain the application at most clerk’s offices and arresting agencies. You may also obtain a copy online on the website for the Georgia Crime Information Center, which is a division of the Georgia Bureau of Investigation: http://gbi.georgia.gov/georgia-crime-information-center

Note: Make sure you know what the arresting agency requires in addition to the application and are including all required documents and fees with your application.

I’ve heard the expungement law changed recently. Will I be able to get my conviction expunged under the new law? Generally convictions will still not be eligible for expungement under the new law. The only convictions that will be eligible for expungement are certain misdemeanor offenses where you were convicted before the age of 21 and were not arrested for five years after completion of your sentence, Also cases where you were sentenced under the Conditional Discharge statute (O.C.G.A. 16-13-3).

10/7/2014

Pardons A Pardon is the forgiveness of a crime and the cancellation of the relevant penalty; it is usually granted by a head of state (such as a president) or by acts of a parliament or religious authority. Clemency means the forgiveness of a crime or the cancellation (in whole or in part) of the penalty associated with it. It is a general concept that encompasses several related procedures: • • • •

Commutation/ Remission/ Reprieve Commutation or Remission the lessening of a penalty without forgiveness for the crime; the beneficiary is still considered guilty of the offense.

Reprieve the temporary postponement of punishment, often with a view to a pardon or other review of the sentence (such as when the reprieving authority has no power to grant an immediate pardon).

In the United States Office of the Pardon Attorney

In the United States, the pardon power for federal crimes is granted to the President under Article II, Section 2 of the US Constitution, which states that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.“ The US Supreme Court has interpreted this language to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites and amnesties.

10/7/2014

Criteria for Pardons Pardons may be granted where individuals have fulfilled their debt(s) to society, or are otherwise considered to be deserving. Pardons are sometimes offered to persons who are wrongfully convicted or claim they have been wrongfully convicted. Note: A pardon does not set aside the conviction, so in some cases the offer is refused.

Eligibility for Pardon

In the overwhelming majority of cases, the Office of the Pardon Attorney will consider only petitions from persons who have: 1. Completed their sentences; and 2. Have demonstrated their ability to lead a responsible and productive life for a significant period after conviction or release from confinement.

Waiting Period The US Department of Justice requires that anyone requesting a federal pardon wait five years after conviction or release prior to receiving one. A Presidential Pardon may be granted at any time, however, and as when Ford pardoned Nixon, the pardoned person need not yet have been convicted or even formally charged with a crime. Note: While a Presidential Pardon will restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, it will not erase or expunge the record of that conviction.

10/7/2014

Restoration of Rights While a presidential pardon will restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, it will not erase or expunge the record of that conviction. Therefore, even if a person is granted a pardon, they must still disclose their conviction on any form where such information is required, although they may also disclose the fact that they received a pardon.

State Law Pardons Governor/ Board of Pardons and Parole

The governors of most of the 50 states have the power to grant pardons or reprieves for offenses under state criminal law. In some states, that power is committed to an appointed agency or board, or to a board and the governor in some hybrid arrangement (in some states the agency is merged with that of the parole board, as in the Oklahoma Pardon and Parole Board).

State Boards of Pardons & Parole Nine states in the United States have Boards of Pardons and Paroles that exclusively grant all state pardons 1. 2. 3. 4. 5. 6. 7. 8. 9.

Alabama (Board of Pardons and Paroles); Connecticut (Board of Pardons and Paroles); Georgia (Board of Pardons and Paroles); Idaho (Commission of Pardons and Paroles); Minnesota (Board of Pardons); Nebraska (Board of Pardons); Nevada (Board of Pardon Commissioners); South Carolina (Board of Probation, Parole and Pardon); and Utah (Board of Pardons and Parole) .

10/7/2014

O.C.G.A. 37-3-37 Despite these limitations, individuals may file a request with the arresting law enforcement agency that their records be restricted. The right to file a request is also given to individuals arrested before July 1, 2013. Within 30 days of receiving the request, the arresting law enforcement agency is required to provide a copy to the prosecuting attorney. Within 90 days the prosecuting attorney is required to inform the arresting agency as to his or her decision. If a prosecuting attorney denies an individual's request to restrict their records, an individual may file a civil action in the Superior Court of the county in which he or she was arrested. If it is determined by clear and convincing evidence that the harm otherwise resulting to the privacy of the individual clearly outweighs the public interest in the criminal history being publicly available, the decision of the prosecuting attorney to deny an individual's request to restrict his or her records will not be upheld.

Records Restriction

According to the Prosecuting Attorney’s Council of Georgia summary, HB 1176 [2012]“ puts in place a totally new procedure which will require that most criminal history records be automatically restricted so they cannot be accessed by the public (especially employers) unless the arrest resulted in a conviction.” Whether a criminal history is held by a clerk of court or an arresting law enforcement agency, an individual may be eligible to have his/her record restricted, so that the information is only available to criminal justice agencies. Basically, for certain drug offenses, if an individual pleads or is found guilty and completes his/her probation without error, his/her record will be restricted. Also, if an individual is found notguilty of all charges by a trial court, his/her record will be restricted. Unfortunately, in between these two outcomes lie a multitude of limitations. Here are the main limitations for the immediate eligibility of record restrictions: 1.

If an individual is convicted of DUI, Reckless Driving, or any other serious traffic offense as defined by Article 15 of Chapter 6 of Georgia Title 40;

If an individual is convicted of any crime listed in HB 1176 starting on line 1464;

If a plea agreement is reached which resulted in the conviction of an individual for an offense arising out an underlying transaction or occurrence which was dismissed - i.e. a reduced plea of reckless driving resulting from a DUI arrest; If in the course of the legal proceedings, the prosecutor was barred from introducing evidence through a motion to suppress or motion in limine; or

If charges were tried and some but not all of the charges resulted in an acquittal.

Our Vision We Want to see Vibrant, & Thriving Communities All Over the US That Are Free from the Bondages of Lack, and of Sinful Consequences; & Where Everyone, through Disciplined and Focused Hard Work, will have Fair and Supported Opportunities to Reach Their Full Potential.

Thank You!

The Advocacy Foundation 100 Edgewood Avenue, Suite 1690 Atlanta, GA 30303 (855) ADVOC8.0 (855) 238-6280

www.TheAdvocacyFoundation.org

The [US] Office of Juvenile Justice and Delinquency Prevention

Landmark Cases in US Juvenile Justice Page 22 of 27

Office of Juvenile Justice & Delinquency Prevention (US) http://www.ojjdp.gov/

The Office of Juvenile Justice and Delinquency Prevention (OJJDP) provides national leadership, coordination, and resources to prevent and respond to juvenile delinquency and victimization. OJJDP supports states and communities in their efforts to develop and implement effective and coordinated prevention and intervention programs and to improve the juvenile justice system so that it protects public safety, holds offenders accountable, and provides treatment and rehabilitative services tailored to the needs of juveniles and their families.

Landmark Cases in US Juvenile Justice Page 23 of 27

The Statistical Briefing [Hand] Book

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Easy Access to Juvenile Populations now includes data through 2012 on national, state, and county population estimates.

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Easy Access to the Census of Juveniles in Residential Placement, which provides information, such as youth demographics, length of stay, and most serious offense; and Easy Access to the FBI‟s Supplementary Homicide Reports, which provides victim and offender demographics, now include national and state data through 2011.

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Answers to frequently asked questions (FAQs) on juvenile homicide victims and juvenile homicide offenders now include data for 2011. Also available are answers to new FAQs on the Organization & Administration of Delinquency Services.

Landmark Cases in US Juvenile Justice Page 24 of 27

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