Seventeen Year-Old to an Adult Criminal Offense by Pamela A. Marsh, Esq. & Jennifer Wagner, Esq.


Think Twice Before Pleading a Sixteen or


In Vermont, prosecutors have the right to file all criminal cases against youths sixteen and older in adult court.1


In many counties,


prosecutors routinely do so, and leave it to defense counsel to move for a transfer to juvenile court under § 5203(b) (sometimes referred to as a “straight transfer”) or pur- suant to § 5281 (youthful offender trans- fer). In other counties, prosecutors make a case-by-case decision as to whether to file in juvenile court or in adult court. Finally, in two counties, Bennington and Caledo- nia, prosecutors are filing the vast major- ity of cases against sixteen and seventeen year-olds in juvenile court, reserving only the most serious offenses and motor vehi- cle offenses (some of which are categori- cally excluded from juvenile court) for ini- tial filing in adult court. The purpose of this article is to advocate for defense attorneys routinely to move to transfer cases filed in adult court against sixteen and seventeen year-olds to juvenile court. This article is intended to offer practi- cal advice in connection with the transfer decision, rather than to provide a schol- arly study of the reasons supporting treat- ment of minors in the juvenile justice sys- tem. Detailed scholarly analyses of the rea- sons supporting juvenile court treatment of minors have been written by Tom Gris- so, Frank Zimring, and others.2


cent U.S. Supreme Cases, such as Roper v. Simmons,3


Graham v. Florida,4 North Carolina,5


Further, re- and J.D.B. v.


have recognized that juve-


nile brain development is substantially dif- ferent from adult brains, and that, as a re- sult, juveniles should be recognized as dif- ferent from adults in terms of culpability, as well as punishment.


Legal Representation of Misdemeanants in Adult Court


Pursuant to state and federal law, in cas- es involving a misdemeanor in which the possible fine is $1000 or less, or which is punishable with one year or less in jail, and in which the State is not requesting jail or a probationary sentence, an indigent defen- dant is not entitled to the appointment of counsel. Many youths charged with appar- ently minor offenses, such as driving offens- es (including DUI) and possession of mari- juana, are not routinely assigned counsel. Often their parents consciously choose not to hire counsel for them, or cannot afford to hire counsel. Parents often advise their child to plead guilty and “take the con-


22


sequences,” not knowing or understand- ing that the collateral consequences of the adult conviction may be far worse than the fine or license suspension imposed for the offense. Some Vermont judges will not accept an uncounseled guilty plea by a minor. Other judges will allow a minor to do an uncoun- seled guilty plea by waiver. Some judges will appoint counsel, even if the defendant does not qualify for counsel due to the in- come of the parent, in order to ensure that the minor receives adequate legal repre- sentation.


Appointment of counsel is not an issue in felony cases, or in the relatively few mis- demeanors punishable by a term of impris- onment exceeding one year (such as DUI-2 and furnishing), because counsel will be ap- pointed for financially needy persons.


Collateral Consequences of Criminal Convictions


Despite the fact that minors who are un- der the age of eighteen convicted in adult court have the right to have their adult conviction expunged under certain con- ditions,6


there can be significant collateral consequences of adult criminal convictions: • Difficulty in obtaining employment, even if the minor successfully com- pleted a diversion program (unless the county offers pre-arraignment di- version)


• Restrictions on travel (such as entering Canada)


• Drug convictions may result in loss of federal financial aid for college or trade schools, and may prevent the minor from being able to live in feder- ally subsidized housing


• Difficulty in obtaining housing, even for convictions that are not drug-relat- ed


• Loss of the right to vote in some states, primarily for felony convictions


• Restrictions on future occupations based on conviction of certain types of crimes


• Restrictions on the ability to adopt or foster children


• Requirement of registration as a sex offender and placement on the online sex offender registry (for certain of- fenses).


• In addition, criminal convictions may delay or prevent military service.


THE VERMONT BAR JOURNAL • FALL 2011


While some of these collateral conse- quences will end if the case is sealed under 33 V.S.A. § 5119(g), sealing is not guaran- teed. Further, unlike a juvenile delinquen- cy adjudication where sealing is automat- ic,7


except in very limited circumstances, the defendant must remember to file a re- quest to seal the record, as opposed to the court automatically initiating the sealing of the record.


Even court diversion programs do not al- ways avoid these collateral consequences. If a youth is arraigned in adult court prior to referral to diversion, as is the practice in many counties, the arrest remains on the youth’s record for two years following the successful completion of the court diver- sion program. Some counties have started using pre-arraignment diversion in order to avoid this consequence. With pre-arraign- ment diversion, the court case is never of- ficially reported to the Vermont Crime In- formation Center. If diversion is success- fully completed, the case never officially existed, and there is not a two year wait for the expungement of the arrest record. If the youth fails to complete pre-arraign- ment diversion successfully, the case is set for arraignment and reported as usual in the court’s statistics. As a practical matter, the stigma of a criminal conviction is often a reason to deny employment or housing to a young person. When an employer or a landlord has the choice to accept young people as employ- ees or tenants with or without criminal con- victions, the young person with a convic- tion will almost always lose out, starting a downward spiral. Unfortunately, young defendants often do not appreciate the collateral conse- quences of an adult conviction, and may be inclined to accept a fine-only disposition in a case, rather than to have the greater su- pervision that is likely if the case is trans- ferred to juvenile court and s/he ends up on juvenile probation. Part of providing good legal counsel is to help such defen- dants realize that the easy solution (a fine) may not be the best solution in the long run. In addition, defense lawyers often have to educate and counsel parents with respect to collateral consequences of adult convictions, and the various kinds of juve- nile court transfers.


“Straight Transfer” vs. Y outhful Offender Transfer


www.vtbar.org


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