BILL NUMBER: S6475

SPONSOR: BAILEY
 
TITLE OF BILL:  An act to amend the family court act, in relation to
adjustment of juvenile 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, this measure would
modify three statutory provisions that pose barriers to adjustment of
cases that may lend themselves to successful informal resolution.

First, along with the Governor's Commission, id., at pages 47, 49, we
believe that the two-month limit on the initial adjustment period is too
short. Accordingly, 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 a need to provide a timely
fact-finding should 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
require the probation department to "consider the views of the complain-
ant and the impact of the alleged act or acts of juvenile delinquency
upon the complainant and upon the community in determining whether
adjustment under this section would be suitable."  Many cases, most
particularly nonviolent misdemeanor cases in which accused juveniles are
determined by a risk assessment instrument to pose a low risk of re-of-
fending, are precluded from appropriate adjustment because current law
accords 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 Commen-
tary 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 prose-
cution...

Many of the cases that would benefit from this measure involve shop-
lifting in a setting 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 adjust-
ment services. The National Council of Juvenile and Family Court Judges,
in its Enhanced Juvenile Justice Guidelines: Improving Court Practice in
Juvenile Justice Cases (Jan, 2019), emphasized that judges " should
ensure that their systems divert cases to alternative systems "whenever
possible and appropriate." Id., at ch. 3, p. 9.  Consistent with the
instant measure, the Guidelines suggest that serious consideration be
given to the position of the victim but do not give the victim veto
power over adjustment. Ibid.

Third, this measure amends Family Court Act § 320.6 to provide that,
notwithstanding the filing of a juvenile delinquency petition, Family
Court may refer a case to the probation department for possible adjust-
ment not simply at the initial appearance but, alternatively, at any
subsequent appearance. Sometimes the suitability of a case for adjust-
ment, including the willingness of an 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 the
probation department would be required 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."

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

This measure would take effect 90 days after becoming law.

 
LEGISLATIVE HISTORY:

S7887 (Avella) (Children & Families)
A10609 (Jaffee) (Children & Families)