HB 682-FN - AS INTRODUCED

AN ACT relative to dual sentencing of certain juveniles.

SPONSORS: Rep. Gilman, Graf 9; Rep. Bicknell, Rock 73; Rep. Buhlman, Hills 66; Rep. Sorg, Graf 11; Rep. Kennedy, Merr 34

AN ACT relative to dual sentencing of certain juveniles.

AN ACT relative to dual sentencing of certain juveniles.

The Judicial Branch, Judicial Council, Departments of Health and Human Services and Corrections have determined this bill will increase state and county expenditures by an indeterminable amount in FY 2004 and each year thereafter. There will be no fiscal impact on local expenditures or state, county and local revenues.

The Judicial Branch stated the fiscal impact of this bill depends on how it is interpreted. If the intent of this bill is to allow the superior court, after a minor has been certified for trial as an adult pursuant to RSA 169-B:24, to sentence the juvenile to both an adult and a juvenile sentence, then the impact on the judicial branch will be minimal. Under that interpretation, the juvenile would have already had his right to a jury trial in superior court. Pursuant to this bill, after his trial and dual sentence, if the juvenile is successfully rehabilitated, he will be conditionally released from the adult sentence. If not, or if he/she violates any condition of conditional release, the adult sentence will be imposed. The only fiscal impact to the Judicial Branch will be in conducting subsequent hearings as necessary on rehabilitation and any violations of conditional release. Since the number of juveniles certified as adults is relatively small and since not all will be given dual sentences, the fiscal impact should be minimal. On the other hand, if this bill is intended to apply to juveniles found delinquent in the district court of offenses which would be a felony, then the fiscal impact to the Judicial Branch will be significant. If any component of the adult sentence carries the potential of incarceration in an adult correctional facility, the juvenile is entitled to a jury trial pursuant to Part I, Article 15 of the New Hampshire Constitution. In re: Jeffrey C., 146 N.H. 722, 724 (2001). Some provision will have to be made for such jury trials, such as the procedure enacted by the legislature in 2002 found in RSA 169-8:19, III-c. Since a number of juvenile delinquency petitions involve offenses that would be a felony if committed by an adult, the potential exists for many more jury trials if the dual sentencing provisions of this bill were frequently used in such cases, and if incarceration in an adult correctional facility were a part of the adult sentence. If that potential for many more jury trials were realized, the fiscal impact of this bill would be significant on the judicial branch.

The Judicial Council states this bill allows a court with jurisdiction over a juvenile to sentence that juvenile to a juvenile sentence and an adult sentence with the imposition of the adult sentence contingent on proof of a successful rehabilitation or violation of a term of the juvenile sentence. This bill adds to the unique list of circumstances in which the court may retain jurisdiction over any minor after the minor's seventeenth birthday, and before the minor's eighteenth birthday for an alleged delinquency committed before the minor's seventeenth birthday for a minor who is in need of or engaged in an appropriate rehabilitation program. After successful completion of such a program the minor shall be eligible for conditional release for the duration of the adult sentence. Further, this bill establishes a new discretionary option for a court, rather than the more complex certification process, to impose a dual sentence on the minor as set forth in RSA 169-8:27, II, where the offense complained of constitutes a felony and would result in a felony charge if committed by an adult. Such sentence would consist of a juvenile sentence and one or more adult sentence. If this sentence is imposed, there would be no eligibility for release during the juvenile sentence. If there is no proof submitted or if the minor violates any conviction of his or her release, the court shall impose the terms of the adult sentence. As such, this bill does not create a new charge for which a more statistically-based set of assumptions could be applied to create this fiscal note. Rather this bill adds to the ability of the court, at its own discretion, to sentence a juvenile offender to both a juvenile and an adult felony charge. The impact will be most likely that the underlying juvenile matter will be more aggressively adjudicated as the possibility exists that a judge could at sentencing impose a dual sentence that in fact has an indeterminate time of imposition. This dual sentencing could be applied in any case which if committed by an adult, would be a felony charge. There is a vast array of potential charges that would be brought within the scope of these dual sentencing provisions. Most lawyers would not advise their juvenile client to plead guilty to any case where an adult felony could also be added to the potential sentence. This bill is apt to place an increased trial burden on the district courts initially, and may also result in more trials at the Superior Court level if a juvenile faces the imposition of the adult sentence. This legislation will ultimately add to the number of hearings an attorney may be required to attend on behalf of the juvenile client. There will be a hearing to show proof of the successful rehabilitation of the minor, perhaps more than one if it is not adequately provided, and the juvenile would remain free on conditional release for the duration of the adult sentence that may range from in excess of a year to fifteen years. During this time, the defendant could be brought back before the court for any violation of the terms of the conditional release. This could result in many additional forms of representation for the attorney. Essentially, in a case that is subject to a dual sentence, more cases will require increased attorney time. This translates to a potential inability on the part of the public defender or contract attorney program to handle as many cases due to the increased complexity in preparation such a case might require. This might mean that more cases would, for reasons of caseload limitation, be shifted to the assigned counsel component of the delivery system. If an assigned counsel attorney were to be assigned to such a case, the increased case time would be charged against the $60 per hour rate. More likely than not, a motion to exceed the $1,200 fee cap would be granted. The increased time required for representation of these cases, would throughout the system, result in increased costs of an indeterminable amount. If any "services other than counsel" are filed as a necessary part of the defense of a case, they would also be payable from Indigent Defense Funds.

The Department of Health and Human Services stated that in its present form this bill is unclear in its intent and terminology. Given this, the following assumptions are made:

· In order for the court to retain jurisdiction over a minor who was an adjudicated delinquent prior to his or her seventeenth birthday, such a minor must be in need of or engaged in an appropriate rehabilitation program.

· The court has discretion to impose a dual sentence consisting of a juvenile sentence and one or more adult sentences on a minor, who has previously been tried and convicted as an adult. (Under the current statute, any minor who has previously been tried and convicted as an adult is treated as an adult for any subsequent criminal offense the minor may commit.)

· The court has discretion to impose a dual sentence consisting of a juvenile and one or more adult sentences on any minor found to be delinquent based on an offense which would constitute a felony if committed by an adult.

· The Department supervises the minor while on conditional release for the duration of the adult sentence.

The Department of Health and Human Services presented the fiscal impact as follows:

· The amendment to RSA 169-8: 4, I-II would have no fiscal impact on the Department because a minor over whom jurisdiction is extended under these paragraphs is currently required by the Department to be in need of or engaged in an appropriate rehabilitation program in order for the Department to recommend extension of jurisdiction.

· Under the current statute, a minor previously tried and convicted as an adult, is treated as an adult for all subsequent criminal offenses for which the minor is charged. Thus, under present law, if a minor who has been previously tried and convicted as an adult subsequently while still a minor, commits another offense, the minor would be treated as an adult. Therefore, under present law, the Department does not incur any costs related to this discrete group of minors. This bill would grant the court the discretion to impose a juvenile sentence, in addition to any adult sentence, on such a minor, and the Department would incur increased costs associated with supervising and implementing the juvenile sentence. Without information about the specific number of minors that are certified as adults, and subsequently commit another crime while still a minor, it is not possible to estimate the additional cost that the Department and the counties may incur.

· If additional juveniles are committed to the Youth Development Center (YDC), the Department would have to absorb the increased costs into its present budget, assuming the facility has the capacity to take these additional offenders. In addition, the fiscal consequence to the counties of additional juveniles being committed to YDC under this bill would be 25% of the per diem rate of $260.

· If this group of minors while on conditional release are supervised by the Department, the Department would incur an indeterminable increase in costs since the Department does not currently supervise this group. The average annual cost for supervision of a delinquent is $6,236, of which 75% is paid by the State and 25% is paid by the counties.

· The change to RSA 169-B:27 adds a second paragraph that grants the court the discretion to impose dual sentences on any juvenile who commits an offense which would constitute a felony if committed by an adult. If these are juveniles whom the Department would supervise under the current law, there will be no fiscal impact. This bill also provides that the minor sentenced under this paragraph shall be eligible for conditional release for the duration of the adult sentence. This provision could substantially increase the costs to the Department and the counties by an indeterminable amount by increasing the number of juveniles older than seventeen who are supervised by the Department. The average annual cost of supervision and services is $6,236. Currently, the Department of Corrections supervises any juveniles who have received an adult sentence.

· There will be no fiscal impact on the Department resulting from the proposed amendment to RSA 169.B:27 to add that the court shall consider the recommendations of the Youth Development Center in determining the juvenile sentence if the minor was previously secured there.

The Department of Corrections is unable to estimate the fiscal impact. The Department stated they have no information from the juvenile courts, therefore, they are unable to estimate how many persons might serve state prison sentences.