When Session Law (S.L.) 2024-17 takes effect next Sunday, December 1, cases in which a Class A – E felony offense is alleged to have been committed at age 16 or 17 will originate under criminal jurisdiction. This means that the juveniles involved in these cases will be processed as defendants in criminal proceedings and not under the procedure for initiating a juvenile delinquency proceeding. At first blush, it may seem that this change will bring local procedure back to what it was before most offenses committed at ages 16 and 17 were brought under original juvenile jurisdiction (with the implementation of the Juvenile Justice Reinvestment Act in 2019). However, since 2019, both federal and state law changed in ways that shifted the landscape of arrest processing and confinement of minors. This blog explores these changes and their impact on implementation of S.L. 2024-17.
Jail Removal and Sight and Sound Separation Requirements Under Federal Law
The federal requirements related to the detention and secure housing of minors awaiting trial and who are treated as adults changed beginning on December 21, 2021. These requirements are contained in 34 U.S.C. § 11133(a)(11)(B) and 34 U.S.C. § 11133(a)(12)(A) in the law known as the Juvenile Justice and Delinquency Prevention Act (JJDPA). They are commonly referred to as the “jail removal” and “sight and sound separation” requirements of the JJDPA.
These provisions now apply to juveniles who are awaiting trial or other legal process and being treated as adults for the purposes of criminal prosecution. This describes juveniles in North Carolina who are charged with Chapter 20 motor vehicle offenses at age 16 and 17 and, beginning with offenses committed on or after December 1, who are charged with Class A – E felony offenses at age 16 and 17. Pursuant to the JJDPA, these juveniles 1) cannot be housed or detained in a jail or lockup for adults and 2) cannot have sight or sound contact with adult inmates.
An adult inmate is defined as a person who has reached age 18 (North Carolina’s age of full criminal responsibility) and has been arrested and is in custody for or awaiting trial on a criminal charge or is convicted of a criminal offense. 34 U.S.C. § 11103(26).
Court-Ordered Exception for Housing in Adult Jail or Lockup or Sight and Sound Separation
The inclusion of juveniles who are awaiting trial under criminal jurisdiction within the jail removal and separation requirements came with a new exception that allows the court to authorize housing of a juvenile who is subject to criminal jurisdiction in an adult jail. This exception can only be authorized through the issuance of a written court order following a hearing. A court can determine that it is in the interest of justice to allow a juvenile who is being prosecuted as an adult to be held in an adult jail or lockup or to have sight or sound contact with adult inmates. 34 U.S.C. § 11133(a)(11)(B). The court must consider the following seven factors in making that determination:
1) the age of the juvenile;
2) the physical and mental maturity of the juvenile;
3) the present mental state of the juvenile, including whether the juvenile presents an imminent risk of harm to the juvenile;
4) the nature and circumstances of the alleged offense;
5) the juvenile’s history of prior delinquent acts;
6) the relative ability of the available adult and juvenile detention facilities to not only meet the specific needs of the juvenile but also to protect the safety of the public as well as other detained youth; and
7) any other relevant factor.
If the court determines that it is in the interest of justice to allow an exception, it must make written findings to that end. Once an exception is ordered the court must hold a hearing at least every 30 days (or at least every 45 days in a “rural jurisdiction”) to review whether it continues to be in the interest of justice to allow the juvenile to be held in the adult jail or lockup or to have sight or sound contact with adult inmates. 34 U.S.C. § 11133(a)(11)(B)(iii). Housing of the juvenile under the exception cannot last more than 180 days unless the court makes written findings that there is good cause for an exception to the 180-day time limit or the juvenile expressly waives the time limit. 34 U.S.C. § 11133(a)(11)(B)(iii).
You can find a “Juveniles Charged as Adults Decisions Tree” published by Office of Juvenile Justice and Delinquency Prevention here. The decision tree illustrates the applicability of the sight and sound separation and jail removal requirements to juveniles charged as adults and how the court-ordered exception can be used.
Other Exceptions to Detention in Adult Jails or Lockups
The JJDPA has long-contained additional exceptions to the prohibition of detaining juveniles in adult jails and lockups. These exceptions now also apply to juveniles being charged under criminal jurisdiction. The commonly applicable exception is the six-hour exception. Under this exception, a juvenile can be detained in an adult jail or lockup for up to six hours 1) for processing or release, 2) while awaiting transfer to a juvenile facility, or 3) to make a court appearance during the six hours. 34 U.S.C. § 11133(a)(13)(A). However, sight and sound contact between the juvenile and any adult inmate is not allowed during the six hours. Additionally, the State must have a policy that people who work with juveniles in any facilities used for both juveniles and adults must be trained and certified to work with juveniles.
The JJDPA also allows juveniles who are awaiting an initial court appearance that will occur within 48 hours after being taken into custody (excluding weekends and legal holidays) to be detained in an adult jail or lockup when that jail or lockup is located 1) outside a metropolitan statistical area and no existing acceptable alternative placement is available, 2) where conditions of distance to be traveled or lack of highway, road, or transportation do no allow for reasonably safe travel so that a brief delay is excusable, or 3) where conditions of safety exist, in which case the time for an appearance may be delayed until 24 hours after the time that the conditions allow for reasonable safe travel. 34 U.S.C. § 11133(a)(13)(B). Like the six-hour exception, sight and sound separation must be maintained while the juvenile is in the adult jail or lockup and the State must have a policy that people who work with juveniles in any facilities used for both juveniles and adults must be trained and certified to work with juveniles.
Impact of Federal Requirements on Processing Minors as Adults
Sight and sound separation and jail removal may be challenging to achieve in the context of magistrate offices that are used for processing arrests and located in the secure part of an adult jail. Sight or sound contact is defined as “any physical, clear visual, or verbal contact that is not brief and inadvertent.” 34 U.S.C. § 11103(25). Therefore, both seeing and hearing an adult inmate is prohibited.
One option may be to use a nonsecure part of the facility for processing juveniles. When asked if an unlocked, multi-purpose area of a law enforcement facility would be subject to the sight and sounds separation requirement, the Office of Juvenile Justice and Delinquency Prevention stated
No. If a juvenile is detained in a non-secure area of a building that is separate from a jail or lockup for adults, this would not result in a core requirement violation. An instance of non-compliance with the separation requirement can occur only when a juvenile is detained within a secure facility such that the juvenile has contact with adult inmates. Frequently Asked Questions: Title II Formula Grants Program, p. 7.
In environments where the arrest of the juvenile must be processed inside a secure facility, time phasing may further compliance with the separation requirement. Time phasing involves setting a schedule that allows for processing of juveniles only at certain times when adult inmates will not be present.
What if none of these solutions are workable in your locality? Violations of these federal requirements are penalized at the State level through reductions in federal funding for juvenile justice and delinquency prevention efforts. Jail removal and separation are two of the JJDPA’s core requirements. Failure to comply with any one core requirement results in a 20 percent reduction to the State’s allocation of federal funds under the JJDPA. 34 U.S.C. § 11133(c). Failure to comply with two core requirements can therefore result in a 40 percent reduction in federal funding.
Place of Confinement for Juveniles
S.L. 2020-83 contained a number of changes to the criminal law to address the place of confinement when a person under the age of 18 would otherwise be held in an adult jail. These changes brought our state laws into compliance with the application of the jail removal requirements described above to juveniles whose cases are subject to original criminal jurisdiction.
The changes included amendment of G.S. 15A-521(a) to state that when a person charged with a crime is committed to a detention facility and is under the age of 18, that person must be committed to a detention facility approved by the North Carolina Division of Juvenile Justice (DJJ). Once that person reaches the age of 18, DJJ is required to transport the person to the custody of the sheriff of the county where the charges arose. Therefore, if a 16- or 17-year-old is not released following their arrest for an offense that is subject to criminal jurisdiction, that person must be held in a juvenile detention facility.
Transporting Minors to Juvenile Detention
The obligation to transport the juvenile to a juvenile detention facility following initial charging falls on law enforcement. According to G.S. 15A-521(c)(1), once an order of commitment is issued it must be delivered to a law enforcement officer. The law enforcement officer must then deliver the commitment order and the juvenile to the juvenile detention facility.
Enhanced Juvenile Interrogation Rights Continue to Apply to All Minors
There is at least one area of law that is not changing with the shift in law regarding original jurisdiction for some offenses committed at ages 16 and 17. The enhanced right to the presence of a parent, guardian, custodian, or caretaker during a custodial interrogation will remain the same for all youth who are ages 16 and 17. G.S. 7B-2101(a1). This is true regardless of whether their charges are subject to original criminal or juvenile jurisdiction. According to a 1983 decision by the Supreme Court of North Carolina, application of the enhanced custodial interrogation right depends on the age of the person being interrogated and not on whether the matter will be under original criminal or juvenile jurisdiction. State v. Fincher, 309 N.C. 1
Ready, Set, Go
The world of juvenile law is about to change in significant ways. S.L. 2024-17, which will shift all cases in which Class A – E felonies are alleged to have been committed at age 16 and 17 to begin under criminal jurisdiction, takes effect starting with offenses committed on December 1, 2024. You can find a summary of all the provisions in that legislation here. There is a new Juvenile Delinquency Procedure in North Carolina flowchart that reflects the new laws available for purchase here. Additionally, the law of juvenile capacity to proceed is substantially changing beginning with offenses committed on January 1, 2025. You can read more about those changes here and here.
As we head into this week of thanks, I am grateful for you and your work in an ever-changing and complex system. I count myself very lucky to know you and be of service to your work. This is my last blog of 2024. I will be back with you in January of 2025, and I welcome any feedback on how implementation of the new laws is going. You can reach me at greene@sog.unc.edu. I wish you all a joyful holiday season filled with peace.