Senate Bill S7887

                                
 
BILL NUMBER: S7887

SPONSOR: AVELLA
 
TITLE OF BILL:

An act to amend the family court act, in relation to adjustment of juve-
nile delinquency cases by local departments of probation in the family
court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

This measure would amend the Family Court Act to reduce barriers to
adjustment of juvenile delinquency cases.

One of the major strengths of the juvenile justice system, recognized
both in New York State and nationally, is its mechanism for local
probation departments to divert non-serious cases from formal processing
before petitions are filed. The Final Report of the Governor's Commis-
sion on Youth, Public Safety and Justice (2015), noting that approxi-
mately 38% of juvenile delinquency complaints statewide are adjusted,
indicated that, in addition to the lower cost of diversion as compared
              

to placements or other interventions, "research has demonstrated that
low-risk youth who are drawn into "deep-end' interventions (like out-of-
home placement or intensive community-based programming) actually are
more likely to re-offend than if such interventions are not used." Id.
at 39, 45. The report noted that, in part because of statutory
restrictions, a sizable number of cases are referred to Family Court
that could be successfully adjusted. One out of three cases referred to
Family Court in 2013, for example, were for misdemeanors and over half
of the total cases petitioned in Family Court resulted in nonincarcera-
tive outcomes. Id., at 46. While not addressing the serious crimes in
which adjustment is either precluded or restricted, the Family Court
Advisory and Rules Committee is recommending a measure to modify three
statutory provisions that pose barriers to adjustment of cases that may
lend themselves to successful informal resolution.

First, as identified by the Governor's Commission, id, at pages 47, 49,
the Committee has concluded that the two month limit on the initial
adjustment period is too short. Accordingly, on the Committee's recom-
mendation, this measure would amend Family Court Act § 308.1(9) to
lengthen that period to three months. Balancing the length of the
adjustment period with the need for prompt adjudication of the rare
cases where adjustment fails, the measure does not alter the authori-
zation for probation departments to seek a two month extension of the
adjustment period.

Consistent with this measure, the 50-state survey, conducted as part of
the MacArthur Foundation's Models for Change Juvenile Diversion Guide-
book (Mar., 2011), at p. 80, indicated that 44% of the states utilize
adjustment periods of between three and six months; 30% use periods
under three months and 19% utilize periods of six months to one year.
Probation Departments have reported a frequent need for an initial peri-
od of over two months in order for all parties to come together to
engage in the process, for appropriate referrals to be made and for
actual program services to begin. By adding a modest initial extension,
this measure seeks to balance this need with the need to provide a time-
ly fact-finding should the formal court process prove necessary.
Second, in lieu of according the complainant an absolute right to veto
adjustment, this measure would amend Family Court Act § 308.1(8) to
instead require the probation department to "consider the views of the
complainant and the impact of the alleged act or acts of juvenile delin-
quency upon the complainant and upon the community in determining wheth-
er adjustment under this section would be suitable."  Many cases, most
particularly nonviolent misdemeanor cases in which the accused juveniles
are determined by a risk assessment instrument to pose a low risk of
re-offending, are precluded from appropriate adjustment because of the
provision in the current law according complainants an absolute right to
access the presentment agency for the purpose of filing a petition.
Since access to the presentment agency does not guarantee that the
presentment agency will actually file a petition, Professor Merril
Sobie, in his McKinney's Practice Commentary to Family Court Act §
308.1, indicated that: (A) complainant's refusal to consent to an
adjustment proposed by the probation service may be self-defeating. Any
benefit which an informal resolution might provide to the complainant
(such as restitution or an agreement to desist from further complained
of activity) is forfeited when the presentment agency exercises its
right to decline prosecution..."

Many of the cases that would benefit from this measure involve shop-
lifting in which the complainant is a corporation or chain store with a
rigid, zero-tolerance policy against adjustment of any cases, no matter
how low-risk the alleged offender may be to re-offend and no matter how
much the alleged offender might benefit from adjustment services. The
National Council of Juvenile and Family Court Judges, in its Juvenile
Delinquency Guidelines (Spring, 2005), emphasized that judges "should
ensure that their systems divert cases to alternative systems whenever
possible and appropriate." Id, at p. 67.  Consistent with this measure,
the Guidelines afford due consideration to the position of the victim
but do not give the victim veto power over adjustment:

Although a victim's opposition or unwillingness to participate
informally should not by itself rule out diversion in an otherwise
appropriate case, the victim's viewpoint and desires should be carefully
weighed.

Third, this measure amends Family Court Act § 320.6 to provide that,
notwithstanding the filing of a juvenile delinquency petition, the Fami-
ly Court may refer a case to the probation department for possible
adjustment not simply at the initial appearance but, alternatively, at
any subsequent appearance. Sometimes the suitability of a case for
adjustment, including the willingness of the accused juvenile and his or
her family to engage in the process and cooperate with services, becomes
evident at a later point in the proceeding. There is no reason to
prevent appropriate diversion efforts in such cases. The complainant
would not have an absolute veto over the referral for adjustment but,
again, the probation department would be required to "consider the views
of the complainant and the impact of the alleged act or acts of juvenile
delinquency upon the complainant and upon the community."

Enactment of this measure would remove significant obstacles to the
diversion of appropriate cases from formal juvenile delinquency process-
ing. As a result, the resources of the Family Court would be reserved
for those cases requiring more intensive intervention.


This measure, which would have no meaningful fiscal impact on the State,
would take effect 90 days after it shall have become a law.

 
LEGISLATIVE HISTORY:

None. New proposal.