Probate Court Juvenile Trial and Sentencing Act Exposed

The Probate Court Juvenile Trial and Sentencing Act does not included adoption or approval information. ALEC has attempted to distance itself from this piece of legislation after the launch of ALECexposed.org in 2011, but it has done nothing to get it repealed in the states where it previously pushed for it to be made into law.

ALEC Bill Text

Section 1.

A. In a petition or amended petition alleging that a juvenile is within the juvenile division of (Insert Appropriate State Court) court’s jurisdiction for a specified juvenile violation, the prosecuting attorney may designate the case as a case in which the juvenile is to be tried in the same manner as an adult. An amended petition making a designation under this subsection shall be filed only by leave of the court.

B. In a petition alleging that a juvenile is within the court’s jurisdiction under this Act for an offense other than a specified juvenile violation, the prosecuting attorney may request that the court designate the case as a case in which the juvenile is to be tried in the same manner as an adult. The court may designate the case following a hearing if it determines that the best interests of the juvenile and the public would be served by the juvenile being tried in the same manner as an adult. In determining whether the best interests of the juvenile and the public would be served, the court shall consider all of the following factors, giving greater weight to the seriousness of the alleged offense and the juvenile’s prior delinquency record than to the other factors:

1. The seriousness of the alleged offense in terms of community protection, including, but not limited to, the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm or other dangerous weapon, and the impact on any victim.

2. The culpability of the juvenile in committing the alleged offense, including, but not limited to, the level of the juvenile’s participation in planning and carrying out the offense and the existence of any aggravating or mitigating factors recognized by the sentencing guidelines.

3. The juvenile’s prior record of delinquency including, but not limited to, any record of detention, any police record, any school record, or any other evidence indicating prior delinquent behavior.

4. The juvenile’s programming history, including, but not limited to, the juvenile’s past willingness to participate meaningfully in available programming.

5. The adequacy of the punishment or programming available in the juvenile justice system.

6.The dispositional options available for the juvenile,

C. If a case is designated under this Act, the case shall be set for trial in court in the same manner as the trial of an adult in a court of general criminal jurisdiction unless a probable cause’ hearing is required under subsection (D) of this section.

D. If the petition in a case designated under this section alleges an offense that if committed by an adult would be a felony or punishable by imprisonment for more than 1 yea?, the court shall conduct a probable cause hearing not later than 14 days after the case is designated to determine whether there is probable cause to believe the offense was committed and whether there is probable cause to believe the juvenile committed the offense. This hearing may be combined with the hearing under subsection (B) on the designation of a case involving an offense other than a specified juvenile offense. A probable cause hearing under this section is the equivalent of the preliminary examination in a court of general criminal jurisdiction and satisfies the requirement for that hearing. A probable cause hearin, - shall be conducted by a judge other than the judge who will try the case if the juvenile is tried in the same manner as an adult.

E. If the court determines that there is probable cause to believe the offense alleged in the petition was committed‘and there is probable cause to believe the juvenile committed the offense, the case shall be set for trial in the juvenile division of {Insert Appropriate State Court) court in the same manner as the trial of an adult in a court of general criminal jurisdiction.

F. If the court determines that an offense did not occur or that there is not probable cause to believe the juvenile committed an offense, the court shall dismiss the petition. If the court determines there is probable cause to believe that another offense was committed and there is probable cause to belie\;e the juvenile committed that offense, the court may further determine whether the case should be designated as a case in which the juvenile should be tried in court in the same manner as an adult as provided in subsection (B). If the court designates the case, the case shall be set for trial in the same manner as the trial of an adult in a court of general criminal jurisdiction.

G. If a case is designated under this section, the proceedings are criminal proceedings and shall afford all procedural protections and guarantees to which the juvenile would be entitled if being tried for the offense in a court of general criminal jurisdiction. A plea of guilty or nolo contendere or a verdict of guilty shall result in entry of a judgment of conviction. The conviction shall have the same effect and liabilities as if it had been obtained in a court of general criminal jurisdiction.

H. Following a judgment of conviction, the court shall enter a disposition or impose a sentence authorized under this Act.

(1) Or grand jury indictment, your state’s code may vary

(2) If the local jail provides for a longer period of incarceration than the state system, you may prefer the statute written to keep the case local.

I. As used in this section, “specified juvenile violation” means any of the following:

1. Arson of a dwelling.

2. Assault with intent to commit murder.

3. Assault with intent to maim.

4. Attempted murder.

5. Conspiracy to commit murder

6. Solicitation to commit murder.

7. First degree murder.

8. Second degree murder.

9. Kidnapping.

10. First degree criminal sexual conduct (Rape).

11. Armed robbery.

12. Carjacking.

13. Assault with intent to do great bodily harm if the juvenile is armed with a dangerous weapon.

a. Dangerous weapon means one or more of the following:

i. Loaded or unloaded firearm, whether operable or inoperable.

ii. Knife, stabbing instrument, brass knuckles, blackjack, club, or other object specifically designed or customarily carried or used as a weapon.

iii. An object that is likely to cause death or bodily injury when used as a weapon and that is used as a weapon or carried or possessed for use as a weapon.

iv. An object or device that is used or fashioned in a manner to lead a person to believe the object or device is an object or device described in subparagraphs (I)(ii)or (iii).

14. First degree home invasion if the juvenile is armed with a dangerous weapon.

a. Dangerous weapon shall have the same meaning set forth in (Section (1) (13) (a).

15. Escape or attempted escape from a juvenile facility, but only if the juvenile facility from which the individual escaped or attempted to escape was::

i. A high-security or medium security facility operated by the {Insert Appropriate State Juvenile Agency} or by a private agency under contract with {Insert Appropriate State Juvenile Agency}.’

16. An attempt’ to commit a violation described in paragraphs (1) through (15).

17. A conspiracy to commit a violation described in paragraphs (1) through (15).

(3) This section shall be tie-barred to Escape From a Juvenile Facility Act

(4) Most states permit identical sanctions for “attempts, conspiracy, solicitation.” If your state permits identical sanctions, then this section shall apply. If not, you may wish to create a separate section to delineate penalties for “attempts, conspiracy, solicitation”

18. A solicitation” to commit a violation described in paragraphs (1) through (15).

19. Any lesser included offense of a violation described in paragraphs (1) through (15) if the individual is charged with a violation described in (1) through (15).

20. Any other violation arising out of the same transaction as a violation described in paragraphs (1) through (15) if the individual is charged with a violation described in paragraphs (1) through (15).

21. Any lesser included offense of an offense described in subdivisions (1) to (20) if the juvenile is alleged in the petition to have committed an offense described in subdivisions (1) to (20).

22. Any other offense arising out of the same transaction as an offense described in subdivisions (1) to (20) if the juvenile is alleged in the petition to have committed an offense described in subdivisions (1) to (20).

Sec. 2. Probation Supervision

If the court acting under authority of this Act imposes a sentence of probation in the same manner as probation could be imposed upon an adult convicted of the same offense for which the juvenile was convicted or enters an order of disposition delaying imposition of sentence and placing the juvenile on probation, the probation supervision and related services shall not be performed by employees of the department of corrections.

Section 3.

A. If the court finds that a juvenile concerning whom a petition is filed is not within this Act, the court shall enter an order dismissing the petition. Except as otherwise provided in subsection (J), if the court finds that a juvenile is within this Act, the court may enter any of the following orders of disposition that are appropriate for the welfare of the juvenile and society in view of the facts proven and ascertained:

1. Warn the juvenile or the juvenile’s parents, guardian, or custodian and, except as provided in subsection (G), dismiss the petition.

2. Place the juvenile on probation, or under supervision in the juvenile’s own home or in the home of an adult who is related to the juvenile. As used in this subdivision, “related” means being a parent, grandparent, brother, sister, stepparent, stepsister, stepbrother, uncle, or aunt by marriage, blood, or adoption. The court shall order the terms and conditions of probation or supervision, including reasonable rules for the conduct of the parents, guardian, or custodian, if any, as the court determines necessary for the physical, mental, or moral well-being and behavior of the juvenile.

3. If a juvenile is within the court’s jurisdiction under this Act, place the juvenile in a suitable foster care home subject to the court’s supervision. If a juvenile is within the court’s jurisdiction under this Act, the court shall not place a juvenile in a foster care home subject to the court’s supervision.

4. Place the juvenile in or commit the juvenile to a private institution or agency approved or licensed by the family independence agency for the care of juveniles of similar age, sex, and characteristics.

5, Commit the juvenile to a public institution, county facility, institution operated as an agency of the court or county, or agency authorized by law to receive juveniles of similar age, sex, and characteristics. In a placement under subdivision (4) or a commitment under this subdivision; except to a state institution, the religious affiliation of the juvenile shall be protected by placement or commitment to a private child-placing or child-caring agency or institution, if available. In every order of commitment under this subdivision to a state institution or agency described in {Insert Appropriate State Statute} the court shall name the superintendent of the institution to which the juvenile is committed as a special guardian to receive benefits due the juvenile from the government of the United States, and the benefits shall be used to the extent necessary to pay for the portions of the cost of care in the institution that the parent or parents are found unable to pay.

6. Provide the juvenile with medical, dental, surgical, or other health care, in a local hospital if available, or elsewhere, maintaining as much as possible a local physician-patient relationship, and with clothing and other incidental items as the court considers necessary.

7. Order the parents, guardian, custodian, or any other person to refrain from continuing conduct that the court determines has caused or tended to cause the juvenile to come within or to remain under this chapter, or that obstructs placement or commitment of the juvenile pursuant to an order under this section.

8. Appoint a guardian under this section pursuant to a petition filed with the court by a person interested in the welfare of the juvenile. If the court appoints a guardian pursuant to this subdivision, it may enter an order dismissing the petition under this chapter.

9. Order the juvenile to engage in community service.

10. If the court finds that a juvenile has violated a municipal ordinance or a state or federal law, order the juvenile to pay a civil fine in the amount of the civil or penal fine provided by the ordinance or law. Money collected from fines levied under this subsection shall be distributed as provided in this Act

11. Order the juvenile to pay court costs. Money collected from costs ordered under this subsection shall be distributed as provided in this Act.

12. If a juvenile is within the court’s jurisdiction under Section I, of this Act, order the juvenile’s parent or guardian to personally participate in treatment reasonably available in the parent’s or guardian’s location.

13. If a juvenile is within the court’s jurisdiction under {Section 1). of this Act, place the juvenile in and order the juvenile to complete satisfactorily a program of training in a juvenile boot camp’ established by the family independence agency under the juvenile boot camp act as provided in that act. Upon receiving a report of satisfactory completion of the program from the family independence agency, the court shall authorize the juvenile’s release from placement in the juvenile boot camp. Following satisfactory completion of the juvenile boot camp program, the juvenile shall complete an additional period of not less than 120 days or more than 180 days of intensive supervised community reintegration in the juvenile’s local community. To place a juvenile in a juvenile boot camp program, the court shall determine all of the following:

i. Placement in a juvenile boot camp will benefit the juvenile.

ii. The juvenile is physically able to participate in the program.

iii. The juvenile does not appear to have any mental handicap that would prevent participation in the program.

iv. The juvenile will not be a danger to other juveniles in the boot camp.

v. There is an opening in a juvenile boot camp program.

14. If the court entered a judgment of conviction under Section l-of this Act, enter any disposition under this section or, if the court determines that the best interests of the public would b&served, impose any sentence upon the juvenile that could be imposed upon an adult convicted of the offense for which the juvenile was convicted. If the juvenile is convicted of a violation or conspiracy to commit a violation of {Insert Applicable State Drug Statutes}, the court may impose the alternative sentence permitted under those sections if the court determines that the best interests of the public would be served. The court may delay imposing a sentence of imprisonment under this subdivision for a period not longer than the period during which the court has jurisdiction over the juvenile under this chapter by entering an order of disposition delaying imposition of sentence and placing the juvenile on probation upon the terms and conditions it considers appropriate, including any disposition under this section. If the court imposes sentence, it shall enter a judgment of sentence. If the court imposes a sentence of imprisonment, the juvenile shall receive credit against the sentence for time served before sentencing. In determining whether to enter an order of disposition or impose a sentence under this subdivision, the court shall consider all of the following factors, giving greater weight to the seriousness of the offense and the juvenile’s prior record:

(5) This Section shall be tie-barred to the Juvenile Boot Camp Act

i. The seriousness of the offense in terms of community protection, including, but not limited to, the existence of any aggravating factors recognized by the sentencing guidelines. the use of a firearm or other dangerous weapon, and the impact on any victim.

ii. The culpability of the juvenile in committing the offense, including, but not limited to, the level of the juvenile’s participation in planning and carrying out the offense and the existence of any aggravating or mitigating factors recognized by the sentencing guidelines.

iii, The juvenile’s prior record of delinquency including, but not limited to, any record of detention, any police record, any school record, or any other evidence indicating prior delinquent behavior.

vi. The juvenile’s programming history, including, but not limited to, the juvenile’s past willingness to participate meaningfully in available programming.

v. The adequacy of the punishment or programming available in the juvenile justice system.

vi. The dispositional options available for the juvenile

B. An order of disposition placing a juvenile in or committing a juvenile to care outside of the juvenile’s own home and under state or court supervision shall contain a provision for reimbursement by the juvenile, parent, guardian, or custodian to the court for the cost of care or service. The order shall be reasonable, taking into account both the income and resources of the juvenile, parent, guardian, or custodian. The amount may be based upon the guidelines and model schedule created under subsection (F). If the juvenile is receiving an adoption support subsidy pursuant to [Insert Reference to Appropriate State Section}, the amount shall not exceed the amount of the support subsidy. The reimbursement provision applies during the entire period the juvenile remains in care outside of the juvenile’s own home and under state or court supervision, unless the juvenile is in the permanent custody of the court. The court shall provide for the collection of all amounts ordered to be reimbursed, and the money collected shall be accounted for and reported to the county board of commissioners. Collections to cover delinquent accounts or to pay the balance due on reimbursement orders may be made after a juvenile is released or discharged from care outside the juvenile’s own home and under state or court supervision. Twenty-five percent of all amounts collected pursuant to an order entered under this subsection shall be credited to the appropriate fund of the county to offset the administrative cost of collections. The balance of all amounts collected pursuant to an order entered under this subsection shall be divided in the same ratio in which the county, state, and federal government participate in the cost of care outside the juvenile’s own home and under state or court supervision, The court may also collect benefits paid for the cost of care of a court ward from the government of the United States. Money collected for juveniles placed with or committed to the family independence agency shall be accounted for and reported on an individual juvenile basis. In cases of delinquent accounts, the court may also enter an order to intercept state or federal tax refunds of a juvenile, parent a wardian, or custodian and initiate the necessary offset proceedings in order to recover the cost of care or service. The court shall send to the person who is the subject of the intercept order advance written notice of the proposed offset. The notice shall include notice of the opportunity to contest the offset on the grounds that the intercept is not proper because of a mistake of fact concerning the amount of the delinquency or the identity of the person subject to the order. The court shall provide for the prompt reimbursement of an amount withheld in error or an amount found to exceed the delinquent amount. Orders of restitution are civil judgements.

C. An order of disposition placing a juvenile in the juvenile’s own home under Section 3 (A)(2) may contain a provision for reimbursement by the juvenile parent, guardian, or custodian to the court for the cost of service. If an order is entered under this subsection, an amount due shall be determined and treated in the same manner provided for an order entered under subsection (B).

D. An order directed to .a parent or a person other than the juvenile is not effective and binding on the parent or other p&son unless opportunity for hearing is D Uiven pursuant to issuance of summons or notice as provided in sections (L) and (M) of this chapter, and until a copy of the order, bearing the seal of the court, is served on the parent or other person as provided in section (M) of this chapter.

E. If the court appoints an attorney to represent a juvenile, parent, guardian, or custodian, the court may require in an order entered under this section that the juvenile, parent, guardian, or custodian reimburse the’court for attorney fees.

F. The office of the state court administrator, under the supervision and direction of the supreme court and in consultation with the {Insert Appropriate State Juvenile Agency}, shall create guidelines and a model schedule that may be used by the court in determining the ability of the juvenile, parent, guardian, or custodian to pay for care and any costs of service ordered under subsection (A) or (B). The guidelines and model schedule shall take into account both the income and resources of the juvenile, parent, guardian, or custodian.

G. If the court finds that a juvenile comes under of this Act, the court shall order the juvenile or the juvenile’s parent to pay restitution as provided in this Act

H. If the court imposes restitution as a condition of probation, the court shall require the juvenile to do either of the following as an additional condition of probation:

1. Engage in community service or, with the victim’s consent, perform services for the victim.

2. Seek and maintain paid employment and pay restitution to the victim from the earnings of that employment

I. If the court finds that the juvenile is in intentional default of the payment of restitution, a court may. as provided in of this chapter, revoke or alter the terms and conditions of probation for nonpayment of restitution. If a juvenile who is ordered to engage in community service intentionally refuses to perform the required community service, the court may revoke or alter the terms and conditions of probation.

J. For the purposes of this subsection and subsection (K), “juvenile offense” means that term as defined in [Insert State Statute Defining Juvenile Offenses} The court shall not enter an order of disposition for a juvenile offense until the court has examined the court file and has determined that the juvenile’s fingerprints and a photograph have been taken as required by {Insert Statute Permitting Fingerprinting of Juveniles}. If a juvenile has not had his or her fingerprints taken, the court shall do either of the following:

1. Order the juvenile to submit himself or herself to the police agency that arrested or obtained the warrant for the arrest of the juvenile so the juvenile’s fingerprints can be taken.

2. Order the juvenile committed to the custody of the sheriff for the taking of the juvenile’s fingerprints.

K. Upon disposition or dismissal of a juvenile offense, the clerk of the court entering the disposition or dismissal’shall immediately advise the department of state police of the disposition or dismissal on forms approved by the state court administrator. The report to the department of state police shall include information as to the finding of the judge or jury and a summary of the disposition imposed.

M. If the court has entered an order of disposition for a listed offense as defined in {Appropriate State Sex Offenders Act}, the court or the family independence agency shall register the juvenile or accept the juvenile’s registration as provided in the {Insert Appropriate State Sex Offenders Registration Act}.

N. If the court enters an order of disposition placing a juvenile in a juvenile boot camp program and the court receives from the family independence agency a report that the juvenile has failed to perform satisfactorily in the program or a report that the juvenile does not meet the program’s requirements:or is medically unable to participate in the program for more than 25 days or a report that there is not an opening in a juvenile boot camp program, the court shall release the juvenile from placement in the juvenile boot camp and enter an alternative order of disposition. A juvenile shall not be placed in a juvenile boot camp pursuant to an order of disposition more than once, except that a juvenile returned to the court for a medical condition 01 because there was not an opening in a juvenile boot camp program may be placed again in the juvenile boot camp program after the medical condition is corrected or an opening becomes available in a juvenile boot camp program.

The court shall not impose a sentence of imprisonment in the county jail under this Act unless the present county jail facility for the imprisonment of the juvenile would meet all requirements under federal law and regulations for housing juveniles, and the court shall not impose the sentence until it consults with the sheriff to determine when the sentence will begin to ensure that space will be available for the juvenile.

Section 4.

A. Juvenile sentenced to imprisonment under this Act shall not be committed to the jurisdiction of the department of corrections. This section does not apply if the juvenile was convicted of a specified juvenile violation as defined in {Section 1A} of this Act.

Section 5.

A. A delay in sentencing does not deprive the court of jurisdiction to sentence the juvenile under (Section 3) of this Act any time during the delay.

B. If the court has entered an order of disposition under Section 3 (A) (14) of this chapter delaying imposition of sentence, the court shall conduct an annual review of the probation, including but not limited to the services being provided to the juvenile, the juvenile’s placement, and the juvenile’s progress in that placement. In conducting this review, the court shall examine any annual report prepared under [Insert Appropriate Act designating juvenile reporting requirements}, and any report prepared upon the court’s order by the officer or agency supervising probation, The court may order changes in the juvenile’s probation based on the review including but not limited to imposition of sentence.

C. If the court entered ah order of disposition under Section 3 (A) (14) of this chapter delaying imposition of sentence, the court shall conduct a review hearing to determine whether the juvenile has been rehabilitated and whether the juvenile presents a serious risk to public safety. If the court determines that the juvenile has not been rehabilitated or that the juvenile presents a serious risk to public safety, jurisdiction over the juvenile shall be continued or the court may impose sentence. In making this determination, the court shall consider the following:

1. The extent and nature of the juvenile’s participation in education, counseling, or work programs.

2. The juvenile’s willingness to accept responsibility for prior behavior.

3. The juvenile’s behavior in his or her current placement

4. The prior record and character of the juvenile and his or her physical and mental maturity.

5. The juvenile’s potential for violent conduct as demonstrated by prior behavior.

6. The recommendations of any institution or agency charged with the juvenile’s care for the juvenile’s release or continued custody.

7. Other information the prosecuting attorney or juvenile may submit.

D. A review hearing shall be scheduled and held unless adjourned for good cause as near as possible to, but before, the juvenile’s nineteenth birthday. If an institution or agency to which the juvenile was committed believes that the juvenile has been rehabilitated and that the juvenile does not present a serious risk to public safety, the institution or agency may petition the court to conduct a review hearing any time before the juvenile becomes 19 years of age or, if the court has continued jurisdiction, any time before the juvenile becomes 21 years of age.

E. Not less than 14 days before a review hearin, - is . to be conducted, the prosecuting attorney, juvenile, and, if addresses are known, the juvenile’s parent or d wardian shall be notified. The notice shall state that the court may extend jurisdiction over the juvenile or impose sentence and shall advise the juvenile and the juvenile’s parent or guardian of the right to legal counsel. If legal counsel has not been retained or appointed to represent the juvenile, the court shall appoint legal counsel and may assess the cost of providing counsel as costs against the juvenile or those responsible for the juvenile’s support, or both, if the persons to be assessed are financially able to comply.

F. A commitment report prepared as provided in {Insert Appropriate State Code Citation}, and any report prepared upon the court’s order by the officer or agency supervising probation may be used by the court at a review hearing held under this section.

G. The court shall conduct a final review of the juvenile’s probation not less than 3 months before the end of the probation period. If the court determines at this review that the best interests of the public would be served by imposing any other sentence provided by law for an adult offender, the court may impose the sentence. In making its determination, the court shall consider the criteria specified in subsection (C) and all of the following criteria:

1. The effect of treatment on the juvenile’s rehabilitation.

2. Whether the juvenile is likely to be dangerous to the public if released.

3.The best interests of the public welfare and the protection of public security.

H. Not less than 14 days before a final review hearing under subsection (G) is to be conducted, the prosecuting attorney, juvenile, and, if addresses are known, the juvenile’s parent or guardian shall be notified. The notice shall state that the court may impose a sentence upon the juvenile and shall advise the juvenile and the juvenile’s parent or guardian of the right to legal counsel. If legal counsel has not been retained or appointed to represent the juvenile, the court shall appoint legal counsel and may assess the cost of providing counsel as costs against the juvenile or those responsible for the juvenile’s support, or both, if the persons to be assessed are financially able to comply.

I. If a juvenile placed on probation under an order of disposition delaying imposition of sentence is found by the court to have violated probation by being convicted of a felony or a misdemeanor punishable by imprisonment for more than 1 year. or adjudicated as responsible for an offense that if committed by an adult would be a felony or a misdemeanor punishable by imprisonment for more than 1 year, the court shall revoke probation and sentence the juvenile to imprisonment for a term that does not exceed the penalty that could have been imposed for the offense for which the juvenile was originally convicted and placed on probation.

J. If a juvenile placed on probation under an order of disposition delaying imposition of sentence is found by the court to have violated probation other than as provided in subsection (r), the court may impose sentence or may order any of the following for the juvenile:

1. A change of placement.

2. Community service.

3. Substance abuse counseling.

4. Mental health counseling

5. Participation in a vocational-technical education program

6. Incarceration in a county jail for not more than 30 days as provided in this chapter. If a juvenile is under 17 years of age, the juvenile shall be placed in a room or ward out of sight and sound from adult prisoners

7. Other participation or performance as the court considers necessary

K. If a sentence of imprisonment is imposed under this section, the juvenile shall receive credit for the period of time served on probation.

Severability Clause

Repealer Clause

Effective Date

We recommend 12 months lead time on this legislation. It will allow your state’s agencies to adapt