New Jersey-2018-S2966-Introduced

An Act concerning judicial discretion in waiving juvenile criminal cases to adult court and amending P.L.2015, c.89.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.2015, c.89 (C.2A:4A-26.1) is amended to read as follows:

1. a. A prosecutor seeking waiver of jurisdiction of a juvenile delinquency case by the Superior Court, Chancery Division, Family Part to an appropriate court and prosecuting authority without the consent of the juvenile shall file a motion within 60 days after the receipt of the complaint, which time may be extended for good cause shown. The motion shall be accompanied by a written statement of reasons clearly setting forth the facts used in assessing all factors contained in paragraph (3) of subsection c. of this section, together with an explanation as to how evaluation of those facts support waiver for each particular juvenile.

b. At a hearing, the court shall receive the evidence offered by the State and by the juvenile. The State shall provide proof to satisfy the requirements set forth in paragraphs (1) and (2) of subsection c. of this section. The court also shall review whether the State considered the factors set forth in paragraph (3) of subsection c. of this section.

c. [Except as provided in paragraph (3) of this subsection, the] The court [shall] may waive jurisdiction of a juvenile delinquency case without the juvenile's consent and [shall] refer the case to the appropriate court and prosecuting authority having jurisdiction if:

(1) The juvenile was 15 years of age or older at the time of the alleged delinquent act; [and]

(2) There is probable cause to believe that the juvenile committed a delinquent act which if committed by an adult would constitute:

(a) criminal homicide, other than death by auto;

(b) strict liability for drug-induced deaths;

(d) carjacking;

(e) aggravated sexual assault;

(f) sexual assault;

(g) second degree aggravated assault;

(h) kidnapping;

(i) aggravated arson;

(j) possession of a firearm with a purpose to use it unlawfully against the person of another under subsection a. of N.J.S.2C:39-4, or possession of a firearm while committing or attempting to commit, including the immediate flight therefrom, aggravated assault, aggravated criminal sexual contact, burglary, or escape;

(k) a violation of N.J.S.2C:35-3 (Leader of a Narcotics Trafficking Network);

(l) a violation of N.J.S.2C:35-4 (Maintaining and Operating a CDS Production Facility);

(m) a violation of section 1 of P.L.1998, c.26 (C.2C:39-4.1) (Weapons Possession while Committing certain CDS Offenses);

(n) an attempt or conspiracy to commit any of the crimes enumerated in subparagraphs (a) through (m) of this paragraph; or

(o) a crime committed at a time when the juvenile previously had been sentenced and confined in an adult correctional facility[.]; and

(3) The court [may deny a motion by the prosecutor to waive jurisdiction of a juvenile delinquency case if it is clearly convinced that the prosecutor abused his discretion in considering] finds, based on the prosecutor's consideration of the following factors [in deciding whether to seek a waiver] and the evidence presented by the juvenile, that the interests of the public in waiver of jurisdiction outweigh the best interests of the juvenile:

(a) The nature and circumstances of the offense charged;

(b) Whether the offense was against a person or property, allocating more weight for crimes against the person;

(d) Age and maturity of the juvenile;

(e) Any classification that the juvenile is eligible for special education to the extent this information is provided to the prosecution by the juvenile or by the court;

(f) Degree of criminal sophistication exhibited by the juvenile;

(g) Nature and extent of any prior history of delinquency of the juvenile and dispositions imposed for those adjudications;

(h) If the juvenile previously served a custodial disposition in a State juvenile facility operated by the Juvenile Justice Commission, and the response of the juvenile to the programs provided at the facility to the extent this information is provided to the prosecution by the Juvenile Justice Commission;

(i) Current or prior involvement of the juvenile with child welfare agencies;

(j) Evidence of mental health concerns, substance abuse, or emotional instability of the juvenile to the extent this information is provided to the prosecution by the juvenile or by the court; and

(k) If there is an identifiable victim, the input of the victim or victim's family.

The Attorney General may develop for dissemination to the county prosecutors those guidelines or directives deemed necessary or appropriate to ensure the uniform application of this section throughout the State.

d. An order waiving jurisdiction over a case and referring the case to the appropriate court and prosecuting authority shall specify the alleged act upon which the referral is based and all other delinquent acts charged against the juvenile arising out of or related to the same transaction.

e. Testimony of a juvenile at a hearing to determine referral under this section shall not be admissible for any purpose in any subsequent hearing to determine delinquency or guilt of any offense.

f. Upon waiver of jurisdiction and referral to the appropriate court and prosecuting authority having jurisdiction:

(1) The case shall proceed as if it originated in that court and shall be subject to the sentencing provisions available to that court; provided, however, upon conviction for any offense which is subject to waiver pursuant to paragraph (2) of subsection c. of this section, there shall be a presumption that the juvenile shall serve any custodial sentence imposed in a State juvenile facility operated by the Juvenile Justice Commission until the juvenile reaches the age of 21, except that:

(a) a juvenile who has not reached the age of 21 may, in the discretion of the Juvenile Justice Commission, be transferred to the Department of Corrections in accordance with the plan established pursuant to subsection e. of section 7 of P.L.1995, c.284 (C.52:17B-175) and regulations adopted pursuant to that section; and

(b) a juvenile who has reached or exceeds the age of 21 may continue to serve a sentence in a State juvenile facility operated by the Juvenile Justice Commission in the discretion of the Juvenile Justice Commission and if the juvenile so consents; otherwise the juvenile shall serve the remainder of the custodial sentence in a State correctional facility;

(2) If a juvenile is not convicted of an offense set forth in paragraph (2) of subsection c. of this section, a conviction for any other offense shall be deemed a juvenile adjudication and be remanded to the Superior Court, Chancery Division, Family Part for disposition, in accordance with the dispositional options available to that court and all records related to the act of delinquency shall be subject to the provisions of section 1 of P.L.1982, c.79 (C.2A:4A-60);

(3) With the consent of the defense and the prosecutor, at any point in the proceedings subsequent to the decision ordering waiver the court may remand to the Superior Court, Chancery Division, Family Part if it appears that:

(a) the interests of the public and the best interests of the juvenile require access to programs or procedures uniquely available to that court; and

(b) the interests of the public are no longer served by waiver.

g. (1) The Juvenile Justice Commission, in consultation with the Attorney General, shall establish a program to collect, record, and analyze data regarding waiver of jurisdiction of a juvenile delinquency case by the Superior Court, Chancery Division, Family Part to an appropriate court and prosecuting authority. In furtherance of this program, the Juvenile Justice Commission shall, in cooperation with the Administrative Office of the Courts, Attorney General, and county prosecutors, collect data related to the decision to seek waiver of jurisdiction of a juvenile delinquency case, which shall include but not be limited to data concerning:

(a) youth demographics, including age, gender, race, and ethnicity;

(b) case characteristics, including the degree of the offense waived, the degree of the offense convicted, and the final court resolution;

(d) waiver rates by race and ethnicity.

(2) The commission shall prepare and publish on its Internet website biennial reports summarizing the data collected, recorded, and analyzed pursuant to paragraph (1) of this subsection.

(3) The commission shall, pursuant to section 2 of P.L. 1991, c.164 (C.52:14-19.1), biennially prepare and transmit to the Governor and the Legislature the reports required in paragraph (2) of this subsection, along with any recommendations the commission may have for legislation concerning waiver of jurisdiction of juvenile delinquency cases.

(cf: P.L.2015, c.89, s.1)

2. This act shall take effect on the first day of the fourth month next following enactment.

STATEMENT

This bill gives the family court discretion in deciding whether jurisdiction over a juvenile criminal case should be waived to adult criminal court.

Under the State's current juvenile waiver statute, the prosecutor is required to file a waiver motion in family court accompanied by a written statement clearly setting forth the facts used in assessing enumerated factors concerning the juvenile and the crime, together with an explanation as to how evaluation of those factors support waiver. These "waiver" factors include: the nature and circumstances of the offense charged; whether the offense was against a person or property, allocating more weight for crimes against the person; degree of the juvenile's culpability; age and maturity of the juvenile; any classification that the juvenile is eligible for special education to the extent this information is provided to the prosecution by the juvenile or by the court; degree of criminal sophistication exhibited by the juvenile; nature and extent of any prior history of delinquency of the juvenile and dispositions imposed for those adjudications; if the juvenile previously served a custodial disposition in a State juvenile facility operated by the Juvenile Justice Commission (JJC), and the response of the juvenile to the programs provided at the facility to the extent this information is provided to the prosecution by the JJC; current or prior involvement of the juvenile with child welfare agencies; evidence of mental health concerns, substance abuse, or emotional instability of the juvenile to the extent this information is provided to the prosecution by the juvenile or by the court; and if there is an identifiable victim, the input of the victim or victim's family. The court is required to hold a hearing to review whether the prosecution adequately considered the waiver factors. The court may deny the waiver motion only if it is clearly convinced that the prosecutor abused his or her discretion in considering the waiver factors.

The bill gives the family court discretion in deciding whether jurisdiction over the juvenile case should be waived. The bill specifies that the court may grant waiver if it finds, based on the prosecutor's consideration of the waiver factors and the evidence presented by the juvenile, that the interests of the public in waiver outweigh the best interests of the juvenile.