Consider Victims in Juvenile Cases

One of the major strengths of the juvenile justice system, recognized both in New York State and nationally, is its mechanism for local probation departments to divert non-serious cases from formal processing before petitions are filed. The Final Report of the Governor's Commis- sion on Youth, Public Safety and Justice (2015), noting that approxi- mately 38% of juvenile delinquency complaints statewide are adjusted, indicated that, in addition to the lower cost of diversion as compared to placements or other interventions, "research has demonstrated that low-risk youth who are drawn into 'deep-end' interventions (like out-of- home placement or intensive community-based programming) actually are more likely to re-offend than if such interventions are not used." Id. at 39, 45. The report noted that, in part because of statutory restrictions, a sizable number of cases are referred to Family Court that could be successfully adjusted. One out of three cases referred to Family Court in 2013, for example, were for misdemeanors and over half of the total cases petitioned in Family Court resulted in nonincarcera- tive outcomes. Id., at 46. While not addressing the serious crimes in which adjustment is either precluded or restricted, this measure would modify three statutory provisions that pose barriers to adjustment of cases that may lend themselves to successful informal resolution.

First, along with the Governor's Commission, id., at pages 47, 49, we believe that the two-month limit on the initial adjustment period is too short. Accordingly, this measure would amend Family Court Act § 308.1(9) to lengthen that period to three months. Balancing the length of the adjustment period with the need for prompt adjudication of the rare cases where adjustment fails, the measure does not alter the authori- zation for probation departments to seek a two month extension of the adjustment period.

Consistent with this measure, the 50-state survey, conducted as part of the MacArthur Foundation's Models for Change Juvenile Diversion Guide- book (Mar., 2011), at p. 80, indicated that 44% of the states utilize adjustment periods of between three and six months; 30% use periods under three months and 19% utilize periods of six months to one year. Probation Departments have reported a frequent need for an initial peri- od of over two months in order for all parties to come together to engage in the process, for appropriate referrals to be made and for actual program services to begin. By adding a modest initial extension, this measure seeks to balance this need with a need to provide a timely fact-finding should formal court process prove necessary.

Second, in lieu of according the complainant an absolute right to veto adjustment, this measure would amend Family Court Act § 308.1(8) to require the probation department to "consider the views of the complain- ant and the impact of the alleged act or acts of juvenile delinquency upon the complainant and upon the community in determining whether adjustment under this section would be suitable." Many cases, most particularly nonviolent misdemeanor cases in which accused juveniles are determined by a risk assessment instrument to pose a low risk of re-of- fending, are precluded from appropriate adjustment because current law accords complainants an absolute right to access the presentment agency for the purpose of filing a petition. Since access to the presentment agency does not guarantee that the presentment agency will actually file a petition, Professor Merril Sobie, in his McKinney's Practice Commen- tary to Family Court Act § 308.1, indicated that:

(A) complainant's refusal to consent to an adjustment proposed by the probation service may be self-defeating. Any benefit which an informal resolution might provide to the complainant (such as restitution or an agreement to desist from further complained of activity) is forfeited when the presentment agency exercises its right to decline prose- cution...

Many of the cases that would benefit from this measure involve shop- lifting in a setting in which the complainant is a corporation or chain store with a rigid, zero-tolerance policy against adjustment of any cases, no matter how low-risk the alleged offender may be to re-offend and no matter how much the alleged offender might benefit from adjust- ment services. The National Council of Juvenile and Family Court Judges, in its Enhanced Juvenile Justice Guidelines: Improving Court Practice in Juvenile Justice Cases (Jan, 2019), emphasized that judges " should ensure that their systems divert cases to alternative systems "whenever possible and appropriate." Id., at ch. 3, p. 9. Consistent with the instant measure, the Guidelines suggest that serious consideration be given to the position of the victim but do not give the victim veto power over adjustment. Ibid.

Third, this measure amends Family Court Act § 320.6 to provide that, notwithstanding the filing of a juvenile delinquency petition, Family Court may refer a case to the probation department for possible adjust- ment not simply at the initial appearance but, alternatively, at any subsequent appearance. Sometimes the suitability of a case for adjust- ment, including the willingness of an accused juvenile and his or her family to engage in the process and cooperate with services, becomes evident at a later point in the proceeding. There is no reason to prevent appropriate diversion efforts in such cases. The complainant would not have an absolute veto over the referral for adjustment but the probation department would be required to "consider the views of the complainant and the impact of the alleged act or acts of juvenile delin- quency upon the complainant and upon the community."

Enactment of this measure would remove significant obstacles to the diversion of appropriate cases from formal juvenile delinquency process- ing. In so doing, the resources of Family Court would be reserved for those cases requiring more intensive intervention.

This measure would take effect 90 days after becoming law.

Legislative history

S7887 (Avella) (Children & Families) A10609 (Jaffee) (Children & Families)