In the past 10 years, there has been an outcry by the public concerning juvenile delinquency and serious crimes committed by juveniles. The public perception that juvenile crimes were becoming more violent and sophisticated resulted in the Illinois Legislature enacting laws to allow the incarceration of juveniles in adult prisons for adult prison terms.
In 1899, the first Juvenile Courts, differentiating between juvenile and adult justice, were born in Illinois. The original idea behind juvenile court was the premise that in order to keep juveniles from turning into hardened adult criminals, they needed to be treated differently than adults. Rehabilitation and the best interests of the juvenile delinquent were paramount. Currently, making the minor accountable for his actions and the protection of the public are the main aims of the Juvenile Court Act. To that end, in recent years amendments to the Juvenile Court Act have made it easier for the State to strip a minor, thirteen years or older, of his status as a juvenile.
For certain offenses committed by juveniles who are at least fifteen years old, the criminal code excludes jurisdiction from the juvenile court1. The legislative enactments that preclude these offenses from the juvenile court’s jurisdiction are commonly referred to as "automatic transfers". Juveniles who are at least fifteen years old can be automatically transferred for weapon charges within 1,000 feet of a school and for drug offenses within 1,000 feet of a school or public housing2.
For offenses which do not qualify as automatic transfers, the State’s Attorney must file a petition requesting the juvenile court to transfer jurisdiction to the adult court. In this situation, the Juvenile Court Act provides for the transfer of jurisdiction under mandatory, presumptive or discretionary sections of the Act3. It is necessary to carefully examine the transfer petition to make sure the allegations against the minor qualify under the transfer statute.
The alleged offense may qualify for mandatory transfer if it was a felony, occurred when the minor was at least fifteen years old, the minor was previously adjudicated of a felony and the offense was in furtherance of gang activity. The mandatory transfer provisions can also be used when the commission of aggravated discharge of a firearm at a school activity or on school owned property is alleged. If the allegations qualify under the mandatory transfer provisions statute, the judge shall, upon finding probable cause that the allegations are true, enter an order for transfer.
Under the presumptive transfer provisions, if the juvenile court judge finds probable cause the allegations are true, there is a rebuttable presumption that the minor should be transferred. The defense must then present evidence to rebut this presumption in order for the alleged offense to remain in juvenile court. In rebutting this presumption, defense counsel must prove by clear and convincing evidence that the minor would be amenable to the care, treatment and training programs in juvenile court. For a discretionary transfer, the court must first find probable cause to believe the allegations in the motion are true and then consider the factors enumerated to determine if it is in the best interest of the public for the minor to remain in juvenile court.
The presumptive transfer statute was passed as part of the "Safe Neighborhoods Act"4. Approximately five years later, the Illinois Supreme Court ruled that the "Safe Neighborhoods Act" violated the single subject rule of the Illinois Constitution5. Since that time, the Illinois Senate passed a new version of the presumptive transfer statute, but it was not passed in the Illinois House of Representatives. While the presumptive transfer statute has not been repealed, at this time it has not been re-enacted in a constitutionally valid manner. Thus, it would appear the State is precluded from using the presumptive transfer alternative until the Illinois Legislature passes it anew and the governor signs it into law.
Once a minor is arrested for a serious offense, the police officer will call the juvenile detention facility so they can screen the minor for detention in said facility. If the detention facility it necessary to hold the minor, there will be a detention hearing in the juvenile court within 40 hours of the minor being taken into temporary custody6. This 40 hour period is exclusive of Saturdays, Sundays and court-designated holidays. In most circumstances, the juvenile is brought to court the day after he was detained.
In order to keep the minor detained, the State must show probable cause that the minor is delinquent and that there is urgent and immediate necessity for continued detention.7. At the time of the detention hearing, the State’s Attorney may simultaneously file a transfer petition or they will normally indicate orally that they intend to file such a petition. Looking to a possible transfer hearing, defense counsel must make the strategic decision whether or not to contest probable cause or urgent and immediate necessity to detain. Defense counsel should be aware that testimony at a detention hearing can be used later at the transfer hearing by either the State or the defense as substantive evidence or impeachment. However, even if probable cause is found at a detention hearing, there must be an independent finding of probable cause at the transfer hearing to sustain the transfer.8.
On the date of the detention hearing, defense counsel should file Invocation of Counsel and Preservation of Evidence Orders. An Invocation of Counsel Order prohibits law enforcement officers and police agencies from questioning the minor relative to the pending case. This is especially important since juveniles are likely to misunderstand or be convinced to waive their Miranda rights. An Order for Preservation of Evidence orders all police agencies involved in the investigation to safely preserve all physical evidence recovered and to maintain the evidence in its’ original condition. Such an order is critically important where blood, hair, DNA, fingerprint or footprint evidence may be inculpatory or exculpatory evidence.
PREPARATION FOR THE HEARING
Delinquency proceedings are not "criminal" proceedings9. Although a delinquency is civil in nature, it is sufficiently distinct from other civil actions. Therefore, civil discovery provisions do not automatically apply to delinquency proceedings10. It is very important for defense counsel to file a thorough Motion for Discovery. The Juvenile Court Act states, "The procedural rights assured to the minor shall be the rights of adults unless specifically precluded by laws which enhance the protection of such minors11." Furthermore, transfer hearings must comply with the constitutional requirement of procedural due process. Therefore, counsel should cite the Juvenile Court Act, Supreme Court Rule 412 and procedural due process under the Illinois and United States Constitutions in asserting its statutory claim to the right of discovery.
Defense counsel should request the court to order an investigation. The Juvenile Court Act provides "the court may direct the course thereof so as promptly to ascertain the jurisdictional facts and fully to gather information bearing upon the current condition and future welfare of persons subject to this Act." 12This section gives the judge broad authority to order evaluations, investigations and reports. In DuPage County, the juvenile judge will order the probation department to prepare a transfer report. This report is similar to the sentencing report that is regularly prepared by the probation department. An investigator from probation will interview the client and his family. While it is not customary for the investigator to question the minor specifically about the offense, it certainly is important for the attorney to be present during the interview to ensure that the client’s interests are fully protected. This report can be helpful in that it will include information that can help the attorney in preparing for the hearing. The report will list prior police contacts, give the criminal history of the minor’s parents, give school information and list possible sentencing alternatives.
In addition to the investigation of the alleged offense, defense counsel must thoroughly interview his client. Counsel should also interview family, teachers, clergy, counselors, employers, probation officers and detention staff. Counsel must become familiar with the medical, social and economic history of the minor. It is also very important to obtain school records. These school records will show the level of the minor’s school performance. The records should also indicate any attendance or behavior problems. In addition, the records will indicate any evaluations that the school has completed or any referrals made for evaluations of the minor.
Defense counsel should also obtain a psychiatric or psychological evaluation of the minor by counsel’s own expert. Counsel, with the help of experts, should determine if the minor has an underlying problem which caused him to act out and commit the alleged offense. It is necessary to find out if the minor has experienced any physical or psychological traumas in his life. This could include any abuse or neglect that the minor may have suffered. Then counsel should demonstrate, with the help of a mental health professional, how these and other life events may have negatively affected the minor. This information is necessary to determine what can be done to rehabilitate the minor. Counsel should see if treatment for rehabilitation can be provided to the minor at facilities available through the juvenile courts. Counsel should then determine if these facilities would accept the minor for their program.
Counsel will need to know all of the activities in which the minor has been involved. Investigation into any resources or assistance that has been given to the minor can also be useful. If the minor has ever been on probation or committed to the Illinois Department of Corrections, records must be obtained from these agencies.
It is very likely the minor will be detained in the juvenile detention facility while the transfer hearing is pending. The minor will attend classes while in detention and can receive counseling if requested. The DuPage County juvenile detention facility has a very structured program which uses a level system. The level system allows residents with compliance and good performance to attain higher levels thereby achieving greater privileges. The residents may be given awards in recognition for their hard work and positive attitude at the facility. Residents who show exemplary behavior may apply to become peer educators. Counsel should stress to the minor that performance in the facility can be extremely important at the transfer hearing. If the minor is compliant and performs well at the detention facility, counsel will be able to argue that the minor certainly can benefit from the juvenile services and learn to modify his behavior.
The transfer hearing itself should be conducted as a bifricated hearing, with the probable cause to be adjudicated first. The rules of evidence for the transfer hearing are the same as those used at a juvenile sentencing hearing. 13 All evidence helpful in determining the questions before the court, including oral and written reports, may be admitted and may be relied upon to the extent of its probative value, even though not competent for the purposes of trial.14 Hearsay, therefore, is admissible.
Probable cause is not a high standard of proof. The State needs only to show that it is more likely than not the allegations in the transfer petition are true. Further, the State does not have to show probable cause for all crimes alleged so long as they succeed on charges that allow the transfer to occur. Nevertheless, it would be wise to thoroughly and vigorously contest the State’s evidence at this phase of the proceedings for a number of reasons.
First, it is an opportunity for defense counsel to present to the judge any evidence that is favorable to his client. The Juvenile Court Act explicitly sets forth that a party to any juvenile proceeding has the right to ‘be heard and to present evidence material to the proceedings.15 Section 405/1-5(1) of the statute can be cited if the State objects to the defense calling witnesses at the probable cause portion of the hearing. The State is likely to present only the minimum amount of evidence in order to sustain their low burden of proof and are likely to call the minimal number of witnesses in order to show that proof. It is safe to assume the State will not present any evidence with exculpatory value. This may be an opportunity for counsel to present mitigation regarding the offense and the surrounding circumstances. Counsel can set forth this information either in cross-examination of the State’s witnesses or by calling defense witnesses.
Second, the probable cause phase of the transfer hearing is an opportunity to directly investigate portions of the State’s discovery and to probe for further information. Crucial information to the defense may be left out of the discovery. Third, it allows a defense attorney the opportunity to explore possible issues and defenses with live witnesses prior to trial. Possible issues include: the juvenile confession, the obtaining of evidence, and credibility of witnesses. The courts have been more closely scrutinizing law enforcement’s methods of obtaining confessions from juveniles. Statutes and case law set out specific guidelines for juvenile questioning, including the rights of the minor and his parents during interrogation. A thorough attorney may discover during the probable cause phase of the transfer hearing information that may later be used at a Motion to Suppress Statements. If the court has found that there is probable cause to believe that the allegations are true, then a hearing on the other enumerated factors will be heard.
The first factor enumerated in the statute is the seriousness of the alleged offense. This factor would have been addressed by counsel during the probable cause portion of the hearing. The second factor listed is the minor’s history of delinquency. The State will likely seek to introduce prior police contacts with the minor. The State may present the testimony of the police or victims of the prior contacts. Counsel should obtain details regarding these contacts. Counsel should be particularly concerned with prior contacts involving violence and gang participation. While any police contacts, even ones not resulting in police action, are admissible, defense counsel should be prepared to argue that such contacts are of minimal relevance. Also pertaining to this factor is whether the minor has been on court supervision, conditional discharge or probation in the past. The minor’s prior performance while under rules of court will be given consideration and input of the probation officer can be extremely important.
Another factor is the age of the minor. It is important for counsel to present evidence of the minor’s emotional or mental age if it is younger than his chronological age. If the minor has an I.Q. resulting in his intellectual functioning at a low grade level, counsel should seek to introduce this information.
The culpability of the minor in committing the alleged offense is another factor for the court to consider. If there is evidence that the minor was involved with older individuals, is a follower or has substandard intelligence compared to the co-defendants, this should be presented to the court.
Also at issue is whether the offense was committed in an aggressive or premeditated manner, and whether the minor used or possessed a deadly weapon when committing the alleged offense.
Another factor the court will examine is the minor’s history of services, including the minor’s willingness to participate meaningfully in available services. Services may include counseling, special education, and diagnoses and treatment for recognized psychological disorders. It is important to determine whether the minor has unmet special education needs or any unresolved substance abuse issues. Again, if the minor was previously receiving services from the probation department, those individuals would have important information regarding this factor. Counsel should seek the help of professionals to determine whether the previous services were sufficient to meet the minor’s needs.
Last, the court will look at the adequacy of the punishment or services available in the juvenile justice system. This factor addresses the issue of what can be done for the minor through the juvenile courts. Counsel should talk to probation officers and department of correction officers in order to become familiar with the services available through probation and the department of corrections. These services include, but are not limited to, sex offender counseling, residential treatment programs, in-patient and out-patient drug treatment programs and intensive probation services. The State will have the opportunity to cross-examine defense witnesses concerning the juvenile alternatives. Counsel thus needs to be not only familiar with what services are available, but to be aware of the services for which the client would be a candidate. The State may also call witnesses from the adult department of corrections to show that the adult facility would be an appropriate place for the minor.
It is important to note that in considering these factors, under both the presumptive and discretionary transfer provisions, the court shall give greater weight to the seriousness of the alleged offense and the minor’s prior record of delinquency than to the other factors listed.
The above listed factors are to be examined in both the presumptive and the discretionary transfers. However, additional factors are to be considered. In a presumptive transfer, the court will whether there is a reasonable likelihood that the minor can be rehabilitated before the expiration of the juvenile court’s jurisdiction. The juvenile court jurisdiction over the minor expires on his twenty-first birthday. Therefore, this factor calls for a prediction of future conduct. Counsel may consult a psychiatrist to help assist them in addressing this factor.
The discretionary transfer statute provides that the court shall consider numerous factors "among other matters". This language is not contained in the presumptive transfer statute. Defense counsel should take advantage of the language "among other matters" and seek to introduce any other information regarding the minor that can assist them in their defense. This is the opportunity to personalize the client. Other factors that may assist the minor include evidence of his remorse, if he cooperated with the investigation of the offense and his behavior while incarcerated.
Prior to trial, the minor does not have the right to appeal an order granting transfer.16 Whereas, the State can appeal the order denying transfer prior to the juvenile trial.17 If the judge chooses to deny the State’s request to transfer, the minor still must litigate the case in juvenile court, and therefore, decide whether to take the case to trial or admit the petition. If the minor admits guilt or is found guilty, then the court may use all of the sentencing options available in juvenile court. This includes the possibility of ward ship and detention in the Illinois Department of Corrections, juvenile division, until the minor’s twenty-first birthday.
If the judge grants the State’s request to transfer, the minor will be indicted before the Grand Jury and an arrest warrant will be issued. Procedurally, the minor will be treated as any adult would be as to bond, the right to a speedy trial, pre-trial motions, trial and sentencing. If the minor is less than seventeen years old when the case is transferred to adult court and he is detained, he will be held in the juvenile detention facility. On his seventeenth birthday, he will be transferred to the county jail.
Juvenile transfer cases involve large amounts of traditionally legal and non-legal work. In many ways investigating and getting to know your client’s background may resemble social work. Keeping your client in juvenile court may be his last chance to obtain the services he needs and keep him from becoming a hardened criminal that the system will have to deal with for years to come. According to a report of the Juvenile Justice Center of the ABA Criminal Justice Section, a minor sentenced to an adult facility is 800% more likely to commit suicide, 500% more likely to be sexually assaulted, 200% more likely to be beaten by staff and 50% more likely to be attacked with a weapon than one confined to a juvenile facility. Thus, it is critically important to contest at every step the State’s request to transfer.
1 705 ILCS 405/5-130.
2 See People v. M.A., 124 Ill. 2d 135, 529 N.E.2d 492, 124 Ill.Dec. 511 (1988) and People v. R.L., 158 Ill. 2d 432, 634 N.E.2d 733, 199 Ill. Dec. 680 (1994).
3 705 ILCS 405/5-805.
4 Pub. Act 88-680, eff. Jan. 1, 1995.
5 People v. Cervantes, 189 Ill.2d 80, 723 N.E.2d 265, 243 Ill.Dec. 233 (1999).
6 705 ILCS 405/5-415(1).
7 705 ILCS 405/5-501
8 In re R.L. 282 Ill. 3d 839, 668 N.E.2d 70, 217 Ill.Dec. 885, 889 (1st Dist. 1996)
9 In re Beasley, 66 Ill.2d 385, 389, 362 N.E.2d 1024, 6 Ill.Dec. 202 ( 1977).
10 People ex rel. Hanrahan v. Felt, 48 Ill.2d 171, 175, 269 N.E.2d 1( 1971).
11 Kent vs. U.S., 383 U.S. 541, 556, 86 S.Ct.1045, 14 L.Ed.2d 84, 94 (1966).
12 705 ILCS 405/1-2(2).
13 705 ILCS 405/5-805(4)
14 705 ILCS 405/5-705(1)
15 705 ILCS 405 (1-5(1)
16 People v. Taylor, 76 Ill.2d 289, 391 N.E.2d 366, 29 Ill.Dec. 103 (1979)
17 People v. Martin, 67 Ill.2d. 462, 367 N.E.2d 1329, 10 Ill.Dec. 563 (1977)
Phyllis M. Devitt is a Senior Assistant Public Defender. She received her Undergraduate Degree from Northern Illinois University, B.A., 1989 and her Law Degree from St. Thomas University, J.D., 1994.
Anthony V. Coco is a Senior Assistant Public Defender. He received his Undergraduate Degree from Indiana University, B.A., 1990 and his Law Degree from IIT Chicago Kent, J.D., 1993.