MONTPELIER — Neither prosecutors nor defense attorneys are thrilled with proposed changes to the state’s youthful offender law.
Last year the youthful offender law changed whereby anyone 21 years old or younger charged with a crime could be eligible for youthful offender status.
That status allows the offender to be placed on probation and supervised and treated by the Department of Corrections and the Department for Children and Families. If the offender successfully completes probation, they can have the case sealed and their record expunged. If not, the case could be sent back to criminal court.
Before last year’s change, those who had a criminal case and sought youthful offender status had to plead guilty to the crime. The case would remain public until a judge determined whether it was appropriate for youthful offender status based on the charges and risk to public safety, if the person was amenable to treatment and if there were appropriate resources in place for the offender.
Now, the moment a defense attorney or a prosecutor files a motion seeking youthful offender status for any defendant 21 or younger, the case becomes confidential until the judge makes that determination.
If the case is accepted into the juvenile docket, it remains confidential through its conclusion, and its outcome will not be made public. If not accepted into the juvenile docket, it returns to the criminal court and again becomes public record.
A bill has come out of the state Senate Judiciary Committee looking to address some of the issues the law currently has.
Marshall Pahl, the chief juvenile defender from the Defender General’s office, said the bulk of the changes are technical corrections and clarifications. But he did take exception to one change: If the bill is passed into law as written, only prosecutors will be able to refer youthful offender cases for defendants aged 20 and 21.
Pahl said this would give prosecutors an uncheckable power to refer cases without needing a judge or the defense to weigh in.
“A discretion that can’t be reviewed is a discretion that can’t be tested,” he said.
Pahl said this was an issue a couple years ago when prosecutors could pick the court in which to charge 16- or 17-year-old offenders, be it juvenile court or adult criminal court.
“What you saw was really geographic injustice,” Pahl said. “There would be one county where nearly everything went to criminal court. Then there would be another county where nearly everything went to juvenile court.”
Some prosecutors aren’t happy with the language either. John Campbell, executive director of the Department of State’s Attorneys and Sheriffs, said this bill would give a judge, the state or the defense up to 90 days to determine if the offender is eligible for drug treatment court.
Campbell said the point of treatment court is to get offenders who need it into the program as soon as possible. He said that’s when they are most amenable to treatment.
With a three-month window, the offender may think they can continue to use drugs until the determination is made, Campbell said.
He added not every county has a drug treatment court: Only five exist in a state with 14 counties.
If an offender is placed in treatment court in a county without one, he or she could have their case transferred to a county that does. They would have to travel to that county for court on a weekly or bi-weekly basis which can be difficult for those with a substance use issue, Campbell said.