Central Juvenile Defender Center

Ohio's Proposed Juvenile Rule 3

Ohio Supreme Court justices are reviewing a proposed new rule, Juvenile Rule 3, which would make consultation with an attorney mandatory before a juvenile charged with a crime waives his or her right to legal representation. If approved by the justices, the Ohio General Assembly will determine by July 1, 2012 whether or not the proposed Rule is adopted. The rule change was proposed by the Ohio Supreme Court rules committee.

Currently, Ohio is one of fourteen states (including Missouri and Kansas) that has codified the “Judicial Colloquy Requirement” which is the least restrictive approach to a waiver of representation. Under this approach, the juvenile is advised by the judge of his right to counsel and of the potential consequences of waiving said right. If the proposed Juvenile Rule 3 passes, Ohio will join eight other states which require attorney consultation prior to the waiver of counsel. Indiana is reviewing a similar rule change which would put it in line with these states as well. Kentucky is one of two states (along with New York) which presumes juvenile incompetence to waive the right to counsel and requires a full hearing, at which the juvenile is represented by counsel, to determine whether a juvenile’s decision to proceed pro se is voluntary, knowing, and intelligent. Arkansas requires a parent be present at the judicial colloquy, while Tennessee goes a step further and requires a parental consultation prior to waiver.

Proponents of the proposed Rule change argue that juveniles and their parents are often overwhelmed and unaware of the help that an attorney can provide them. They argue that it is not sufficient to place the burden solely on juvenile court judges to provide juveniles with the information they need to best defend themselves. Franklin County’s public defender’s office, in an effort to better serve its clients, began providing every juvenile with an attorney consultation in November 2011. The Juvenile Unit chief of the Franklin County public defender’s office stated that the change was not made to comply with the proposed Rule 3, but proved to be the positive change envisioned by Rule 3. Every juvenile is provided consultation with an attorney prior to waiving his or her right to counsel. The change has not created a logistical or financial burden, as opponents of the Rule argue should be the reasons to reject the Rule.

While financial burdens are the main concern of the Rule’s opponents, other states that require attorney consultation have not been hindered by their policies. In Florida, the additional costs created by the rule are offset by the smaller number of cases reversed on appeal because of a lack of counsel. In Maryland, many courts now have lower juvenile cases than they did before the rule was enacted. Ohio advocates argue that juveniles without an attorney are more likely to be sentenced to detention, which would prove more costly than providing counsel at the outset.

The new Rule is supported by the American Civil Liberties Union, the Children's Law Center, and the Ohio Public Defender's Office. It is opposed by judicial groups and the County Commissioners Association of Ohio.

Is a Mandatory Sentence of Life Without the Possibility of Parole for a Juvenile Offender Cruel and Unusual?

The law in Kentucky has long been settled that a sentence of life in prison without the possibility of parole is a cruel and unusual punishment as applied to juvenile offenders. Workman v. Commonwealth, 429 S.W.2d 374, 377 (1968). This is not yet the case in every state.

A January opinion in Florida expanded on the Supreme Court’s ruling in Graham v. Florida, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), in reviewing whether or not a sentence of life in prison without the possibility for parole violates a juvenile offender’s Eighth Amendment right to be protected from cruel and unusual punishment. In Arrington v. State, 2012 Fla. App. LEXIS 536, 37 Fla. L. Weekly D 155 (2012), Florida’s Second District Court of Appeals reversed a juvenile’s mandatory sentence of life without the possibility of parole. The juvenile was convicted of felony murder but merely supplied the handgun used and did not actually commit the murder.

Graham forbids a life sentence without parole for a juvenile “who did not commit homicide.” The question addressed by the Arrington court is whether a felony murder conviction can be considered a “nonhomicide” if the offending juvenile did not actually commit the homicide. A juvenile could be charged with felony murder if he or she is the principal to the homicide or if he or she is merely a participant in the murder.

The court considered whether life without the possibility of parole could be cruel and unusual as applied to a juvenile convicted of felony murder who did not commit the actual act of murder but was merely a party to the crime.

The Graham court “recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Graham at 2027.

The court looked at the punishment meted out for the same crime committed by an adult. For an adult, the most severe punishment is the death penalty. That punishment is reserved only for persons who actually committed the murder or who significantly participated in the underlying felony with reckless disregard for human life. Because a life sentence without the possibility for parole is the harshest sentence available for juveniles, the same logic should be extended to juvenile offenders. It would be disproportionate to mandate a felony murder sentence for a juvenile who was a party to the murder that is equal to the sentence for one who actually pulled the trigger and killed a victim in a premeditated act.

The court looked at Florida law which mandated this harsh sentence based on the grand jury’s indictment, while not requiring the grand jury to be informed that their indictment will lead to this mandatory sentence.

The court looked to the laws of California, New York, and Texas and found that the three states similar in population to Florida allowed courts discretion in the sentencing of juveniles convicted of felony murder. Similarly, neighboring Georgia also allowed for discretion. Alabama had a mandatory sentence like Florida’s, but the Supreme Court recently granted cert to consider whether Alabama’s mandatory life-without-parole sentence for capital murder is cruel and unusual as applied to young offenders.

Ultimately, the Court held that in the very limited context of sentencing juveniles, the trial court must have an element of discretion to prevent sentences that would otherwise be cruel and unusual. The main factors in the court’s decisions were the age of the juvenile, some who may not yet be teenagers and some who may almost be adults; the juvenile’s involvement in the murder as compared to the underlying felony, which may be minimal or quite substantial; and the fact that life without the possibility of parole is the most severe available punishment for juvenile offenders.

On March 20, 2012, the Supreme Court of the United States heard arguments in the cases of Miller v. Alabama and Jackson v. Hobbs. Each case deals with the issue of whether imposing a sentence of life imprisonment without the possibility for parole on a juvenile offender is cruel and unusual in violation of the Eighth Amendment. Attorney Bryan Stevenson, who is representing the defendant in both cases, invoked Roper v. Simmons, the 2005 Supreme Court decision which held it unconstitutional to impose the death penalty on a juvenile. He emphasized the points made in Roper that juveniles cannot be judged or sentenced in the same way as adults because of their ongoing cognitive development. The state's argument focuses on the nature of the crimes committed and the concept that a punishment should fit the crime. Legal scholars believe that the Court's decision will come down to which is more important: the nature of the crime, or the nature of juveniles.

 -Written by Adam Turer, Northern Kentucky University Law Student

Kentucky Legislators Propose Changes to Juvenile Justice System

Kentucky legislators have requested legislative changes that would prohibit
children under the age 10 or younger from being criminally charged in the
Commonwealth.  This change to the juvenile court system will likely be one
of the primary topics of discussion for the 2012 General Assembly.
Currently, Kentucky law does not put a limit on the age at which a child
may be charged.  According to a state court official, 2,704 children 10 or
younger faced criminal charges between 2005 and 2010.  Kentucky is one of
34 states which does not place a limit on the age at which a child may be
charged.  According to a report issued by the National Center for Juvenile
Justice in Pennsylvania, the 16 states which do have such limits are as
follows:

Age 6: North Carolina

Age 7: Maryland, Massachusetts and New York

Age 8: Arizona

Age 10: Arkansas, Colorado, Kansas, Louisiana, Minnesota, Mississippi,
Pennsylvania, South Dakota, Texas, Vermont and Wisconsin

At least four times in 2010, a five-year-old was criminally charged in
Kentucky.  According to a Kentucky State Police annual report, nine
criminal charges of fraud were brought against children 10 and younger in
2010.

Legislators and juvenile justice advocates believe that children aged 10
and younger would be better served outside the criminal justice system.  Patrick
Yewell, the head of Kentucky’s Department of Family and Juvenile Services
for the Administrative Office of the Courts, believes that the risk of
recidivism is another reason to keep juveniles under age 10 out of the
criminal justice system. "The earlier a child enters the juvenile justice
system, the more likely he or she is to acquire an extensive juvenile
record," Yewell said.

British common law, upon which American legal principles were founded,
established that no child under the age of seven could be convicted for a
crime and that children between the ages of seven and fourteen were
conclusively presumed to not be found guilty of a felony or punished with
any capital offense. Angelo v. People 96 Ill. 209, 211 (1880).  In recent
American law, according to a recently published law review article, “the
notion of categorical incapacity has been jettisoned in favor of a more
individualized approach.” 86 Tul. L. Review 309, 321.  The article by
George Mason Law professor Craig Lerner posits that juvenile cases should
be treated individually and that categorical restrictions on punishment
based on the offender’s age do more harm than good to our justice system. 

Kentucky legislators will have to balance the notion of holding all
citizens culpable for their actions with the mounting evidence that
juveniles, especially those below the age of 10, have underdeveloped brains
and should be treated differently than more cognizant offenders.   

 -Written by Adam Turer, Northern Kentucky University Law Student

Teen prosecuted as adult in KY

Cincinnati.com reports that Stacey Spencer, 17, is being charged as an adult for an alleged robbery and murder in Kenton County, Kentucky.