Last time, we saw how juvenile delinquency cases are heard in Montgomery County, with a look back at the unique history here. Today, I examine how these judges have extraordinary discretion to essentially make or break the lives of juveniles in the county. Before doing so, however, recall from earlier blog pieces that judges do not make all the decisions in juvenile cases. Indeed, the discretionary decisions made by school officials, police officers, prosecutors, and DJS intake officers carve out cases that judges never see. Judges have no real way of knowing whether the juveniles they see in court in cases that are petitioned are the ones who they should be seeing or likewise whether the ones they do not see should have been in court. The equal protection issues based on racial disparity may be lurking there, but there is no effective way to reckon with them.
It is also important to recognize that although judges hearing juvenile cases have virtually unfettered discretion, their options are generally quite limited. Indeed, most critical decision points in juvenile court are resolved by a binary choice: keeping the case in juvenile court or waiving jurisdiction to adult criminal court; detention or release to the community; placement in a secured facility or community probation. Given the high volume of cases and limited resources, most juveniles enter the equivalent of a guilty plea (in juvenile court referred to as a plea of involved) in their cases. Once that plea is accepted by the court, which it almost always is, the juvenile can either be found not in need of services, placed on probation, or committed to a juvenile facility for out of home placement. The same options are available to the judge if a juvenile elects a trial (known as an adjudicatory hearing) and is found guilty (that is, involved in a delinquent act). These three options, unfortunately, are not a whole lot different than those in the adult criminal system. They are essentially probation before judgment, probation, and jail or prison. This mini-criminal system has the psychological effect on the prosecutors, public defenders, and judges who deal with juveniles. And it does not inure to the benefit of the juveniles the system is supposed to serve.
The discretionary decisions made by the juvenile court, for better or worse, determine the fate of the juveniles who do end up in court. These decisions can make the difference between a juvenile coming into court once and then getting on the right path versus a juvenile who ends up a repeat delinquent headed for life as an adult criminal. As described in previous blog pieces, these juveniles are generally from the Black and Hispanic communities of the county. So how do these different pathways occur? Unfortunately, there are so many different junctures in the road that can be outcome determinative. A broad array of decision points confronts judges hearing these cases, and at each point along the process, the court can set in motion a path that will keep a child detained (or not), keep the child in the community (or not), keep the child in a rehabilitative system (or not), and keep the child out of adult prison (or not). And lurking at each of these junctures is systemic racism that may not even be recognized by the judge or other participants in the juvenile justice system.
When a child is arrested, will that child be detained at a juvenile facility or released to parents? If detained, the child will essentially be imprisoned, away from family, school, and community. This could be for several days or several weeks before the adjudicatory hearing is held. If the child is detained after being found involved in a delinquent act, several more weeks in detention could take place pending the disposition hearing. Cut off from school for a significant length of time, what are the chances that the child will be able to go back successfully, assuming the child is put on probation? That discretionary decision to detain or release sometimes sets the tone for the outcome of the case.
Next, will the child who is found to be involved in a delinquent act be deemed not in need of services, placed on probation, or removed from the home and put in a DJS placement? If the child has sufficient resources, a good attorney, and concerned parents, it is more likely the case will be closed, with no probation. This disposition, of course, tends to go to children of White, wealthy parents, who can finance private counseling and pay restitution up front to victims. Will bias also creep into the discretionary decision to place the juvenile on probation or not? Perhaps, but certainly if the juvenile has a prior record, or has been unsuccessful on probation, it is more likely that the child will be removed from the home and placed in a facility far from home. If so removed, will the parent be able to travel over 100 miles to see the placed child in Western Maryland? Will this prolonged removal do more harm than good? How will one ever know?
Finally, a major discretionary decision that judges make in some serious juvenile cases is that of waiver to adult criminal court or transfer from adult criminal court back to juvenile court. Of all the decisions made, this one has immediate and life long impact on the juvenile. A serious crime committed by a 15-, 16- or 17-year-old can be treated in either juvenile court or adult criminal court. Children younger than 15 who are charged with an act punishable by life imprisonment if committed by an adult can also have their cases transferred to adult criminal court.
How does a judge decide whether to have these serious cases handled in juvenile court or as adult criminal cases? The five factors to be considered are the same regardless of whether the case starts in juvenile court and the State wants it heard as an adult matter or whether the case starts in adult criminal court and the defendant wants it transferred to juvenile court. The five criteria to be considered “individually and in relation to each other” are: age of the child; mental and physical condition of the child; the child’s amenability to treatment in any institution, facility, or program available to delinquents; the nature of the offense and the child’s alleged participation in it; and the public safety. The Department of Juvenile Services will conduct an investigation and present a report to the court analyzing the five criteria and typically, the Department will recommend juvenile or adult court depending on its assessment of the five factors. The court will hold a hearing and make findings on each of the five criteria as well as an ultimate determination whether the juvenile is fit or unfit for juvenile rehabilitative measures.
How the five criteria are assessed, both individually and in relation to each other, varies wildly from DJS officer to officer and ultimately from judge to judge. And the case law from the Court of Appeals of Maryland does not offer much guidance to trial judges on this issue. No one factor is determinative and the weighing process is up to the judge. So long as the judge hearing the matter assesses each of the five factors, the judge can reach either ultimate conclusion regardless of how the factors are assessed. For example, a judge might find that four of the five factors weigh in favor of keeping the case in juvenile court, but rule that the case should be waived to adult criminal court because one of the factors favors that result. Given the amorphous nature of many of the five criteria, too, it is often difficult to determine how to assess the factors and how to decide whether a particular finding weighs for or against keeping the case in juvenile court. Rare is the case that such findings are successfully overturned on appeal given this state of affairs.
So, if a 16-year-old commits an armed robbery or first degree assault and is treated as a juvenile, the child might be placed on probation or perhaps committed to DJS for placement in a six- or nine-month program. The child will have no adult criminal record as a result. If the case is transferred to adult criminal court, that same child will likely have a felony criminal record for life, even if placed on probation. Even worse, such juveniles are often sentenced to serve a prison sentence as an adult for a period of years. Life changing indeed and subject to the good or not so good discretionary decision by the judge who heard the waiver matter in the first instance.
Statistically, the sad news is that most of the juveniles who have such cases waived to adult court (or not transferred back to juvenile court) are Black or Hispanic. As a result, such children are treated as criminals from a youthful age and have little chance of redemption later in life. And this is particularly true when such juveniles receive lengthy sentences, which are currently allowed under the law. There has been a trend in the past decade to curb life without parole for such juveniles, but do we really want our teens to spend decades or most of their lives in prison for something they did when their brains were not fully developed?
Next time, I will examine how Maryland has treated cases where juveniles end up in the adult criminal system and recent developments on the State and national level in this regard. My final blog on juvenile justice will focus on reimagining the juvenile justice system for the 21st century.
Judge Gary E. Bair (Ret.)
Of Counsel, RaquinMercer LLC