State juvenile justice legislation in 2018 focused on broad, sweeping reform measures, restoring juvenile court jurisdiction, diversion, truancy, addressing due process and rights of juveniles, and limiting shackling in the courtroom. Many of the laws enacted in 2018 fell under the policies and principles laid out in NCSL’s publication Principles of Effective Juvenile Justice Policy.
Massachusetts passed a sweeping juvenile justice reform bill in 2018. The new law changed the lower age of jurisdiction to 12 years old. Prior to this change, children over age 6 could be charged with a crime in juvenile court. The law also created opportunities for expungement of misdemeanors and some felony offenses committed before the age of 21 if it was the young person’s first offense. Additionally, the law created a parent-child privilege where neither party can be legally compelled to testify against the other. The law also gives judges the authority to divert youth from court prior to arraignment and decriminalized some school-based offenses.
Tennessee also passed reform in 2018, committing $4.5 million per year for ongoing improvements to the juvenile justice system and expansion of community-based resources, especially in underserved counties. Additionally, the allows law enforcement to issue citations to juveniles for misdemeanor offenses, prohibits the use of seclusion (solitary confinement) for punitive purposes in a detention setting and establishes criteria aimed at reducing a young person’s length of stay in custody. The law also requires school personnel who file petition with juvenile court to provide information on efforts made to address problems in school before petitioning the court and facts showing the need for court intervention. Finally, the law establishes performance-based metrics, oversight for providers, requires that a plan for comprehensive, and accurate data collection procedures.
In Nebraska, beginning July 1, 2019, children under the age of 12 cannot be placed in detention under any circumstances and older juveniles cannot be detained “unless the physical safety of persons in the community would be seriously threatened or detention is necessary to secure the presence of the juvenile at the next hearing.” Additionally, Nebraska’s law provides state grant funding to create shelters as alternatives to juvenile detention.
In 2018, Delaware and Florida enacted laws related to diverting appropriate youth from formal court processing.
Delaware repealed the sunset provision on its Juvenile Civil Program to provide law enforcement officers with the discretion to refer to the civil citation program any juvenile charged with any misdemeanor-level behavior for the first time. Through that program, the young person can be required to participate in counseling, treatment, community service, or any other appropriate intervention.
Florida also passed legislation on pre-arrest diversion for youth in the state. The law outlined the implementation of a pre-arrest diversion program and made legislative findings “that the widespread use of civil citation and similar prearrest diversion programs has a positive effect on the criminal justice system and contributes to an overall reduction in the crime rate and recidivism in the state. The Legislature encourages but does not mandate that counties, municipalities, and public or private educational institutions participate in a civil citation or similar prearrest diversion program created by their judicial circuit under this section.”
Restoring Jurisdiction to the Juvenile Justice System
In 2018, Arizona, California, Missouri and Washington amended their laws to expand jurisdiction of the juvenile court. In Arizona, the juvenile court is allowed to retain juvenile jurisdiction for some cases up to age 19. California now prohibits the transfer of all children younger than 16 to the adult criminal justice system. Missouri lawmakers raised the age of juvenile court jurisdiction to 18, with the law going into effect Jan. 1, 2021. Washington adopted measures prohibiting automatic transfer to adult court for 16- and 17-year-olds who commit certain crimes, such as robbery.
Distinguishing Juveniles from Adult Offenders
Delaware enacted legislation that requires juveniles younger than 18 who are charged as adults to remain in juvenile facilities before trial. The state also passed legislation eliminating or reducing mandatory minimums in Delaware Family Court, which gives the judge more discretion to develop juvenile dispositions.
Due Process Rights and Defense Reform
Colorado and Oklahoma enacted laws that increase due process protections by clarifying competency procedures for juveniles and providing access to quality defense counsel.
Colorado clarified the procedures for establishing incompetency as well as restoration of competency and created juvenile-specific definitions of “developmental disability,” “mental disability” and “mental capacity.” The law allows prosecutors, defense counsel, parents, guardians ad litem, probation officers or the court on its own to raise the question of competency. Oklahoma now requires a youthful offender or child to be represented by counsel at every hearing or review through completion or dismissal of the case.
Conditions of Confinement for Juveniles
Two states, Oklahoma and Louisiana, put restrictions on when a young person can be restrained.
Oklahoma created the presumption that no restraints of any kind shall be used on a pregnant prisoner, detainee or juvenile during any phase of labor unless otherwise directed by the physician in charge. Even prior to labor, abdominal restraints, four-point restraints, leg or ankle restraints or a chain restraint that links to another inmate is now prohibited.
Louisiana limited the circumstances under which juveniles are required to wear restraints, including use of shackles in the courtroom. The law only allows for restraints to be used if there has been an individualized determination they are necessary to prevent young people from injuring themselves or others or to prevent flight from the courtroom. The court must determine that there are no less restrictive alternative measures in order to require a child to wear shackles in the courtroom.
At least four states enacted laws in 2018 related to juveniles and school truancy.
Colorado amended its Children’s Code to state that truancy and habitual truancy are not considered delinquent acts, and that a student who is habitually truant may be subject to sanctions by the court but cannot be placed in a juvenile detention facility for truancy. Additionally, the court may not issue a warrant to take a juvenile into temporary custody for a truancy action.
Utah enacted a similar law in 2018. No minor may be ordered or placed in secure detention for a contempt charge or a violation of a court order when the underlying offense is habitual truancy. The same law also provides that appropriations for the Enhancement for At-Risk Students Program may be used for truancy prevention.
Maryland enacted legislation related to the parents of truant students. Any person with legal custody or care and control of a child who is age 5 or older and younger than 16, who fails to see that the child attends school, is guilty of a misdemeanor. The penalties include a $150 fine for the first offense or community service.
Washington passed a measure in 2018 that aims to create more data on how truancy cases are handled in the state. The superintendent of public instruction is required to collect truancy data from the school districts. The data must include the number of petitions filed with the juvenile court by a school district and whether the petition results in referral to a community truancy board, another intervention, a hearing in juvenile court or any other less restrictive disposition. Also required in the reporting is each instance of a young person detained for failure to comply with a court order, with a statement of the reasons for each instance of detention.
Appendix: List of 2018 Laws by State
- Massachusetts SB 2371, Tennessee HB 2271 and Nebraska LB 670
- Delaware HB 442 and Florida SB 1392
Raising the Age of Juvenile Court Jurisdiction
- Arizona HB 2356, California SB 1391, Missouri SB 793, Washington SB 6160, Delaware HB 339 and Delaware HB 307
Due Process and Defense Reform
- Colorado HB 1050 and Oklahoma SB 224
Conditions of Confinement for Juveniles
- Oklahoma HB 3393 and Louisiana HB 187
- Colorado HB 1156, Utah HB 132, Maryland HB 319 and Washington HB 1170