Testimony of E. Michelle Tupper, Board Member, DC Lawyers for Youth
Members of the Council, good morning.
My name is Michelle Tupper. I am a board member of D.C. Lawyers for Youth and an attorney with Dickstein Shapiro in the District of Columbia. I am here today to express concern regarding proposed Bill 17-710, “Juvenile Auto Theft Prevention Act of 2008,” which mandates “sentences” for Unauthorized Use of a Vehicle (“UUV”) adjudications. I urge the Council not to eliminate judicial discretion through this bill but to instead allow the juvenile court judges, as charged under the D.C. Code, to make the individual determinations of what will best rehabilitate a juvenile offender.
I. The Juvenile Justice System Is Rehabilitative, Not Punitive
The juvenile justice system is not a miniature adult criminal system. The purpose of the juvenile justice system in the District of Columbia is to rehabilitate, not punish, in order to “creat[e] productive citizens and to recognize that rehabilitation of children is inextricably connected to the well-being and strength of their families.” D.C. Code § 16-2301.02(5). As specified in the D.C. Code, juvenile court judges are to address the needs of juveniles in delinquency court by, among other things:
Ensuring due process;
- Promoting youth development and preventing delinquency through early intervention, diversion, and community-based alternatives;
- Preserving and strengthening families whenever possible and removing a child from the custody of the child's parents, guardian, or other custodian only when in the child's best interests or when necessary for the safety and protection of the public;
- Taking into consideration an adjudicated delinquent’s age, education, mental and physical condition, background, and all other relevant factors;
- Placing a premium on the rehabilitation of children with the goal of creating productive citizens and recognizing that rehabilitation of children is inextricably connected to the well-being and strength of their families;
- Serving children in their own neighborhood and communities whenever possible;
- Holding the government accountable for the provision of reasonable rehabilitative services;
- Providing for the safety of the public; and
- Achieving these goals in the least restrictive settings necessary, with a preference at all times for the preservation of the family and the integration of parental, guardian, or custodial accountability and participation in treatment and counseling programs.
D.C. Code § 16-2301.02. In other words, juvenile court judges are charged with focusing on rehabilitation and not punishment of a child in the juvenile justice system and to do so in the least restrictive environment possible, including the child’s family and community whenever possible. Most states share DC’s focus on rehabilitation, which is prospective in nature and seeks what is in the best interests of the juvenile offender with the understanding that those goals often coincide with the community’s long-term interests. This proposed bill counters that philosophy and the very basis of our juvenile justice system by mandating specific punishments – not rehabilitative measures – even when doing so may not be in the best interest of the child to achieve rehabilitation.
II. Juvenile Court Judges Have Discretion to Authorize These Measures
Judges already have discretion to do all that is necessary to achieve rehabilitation of a juvenile, regardless of the crime, including what is required under this bill. In our current system, the determining factor in disposition of a child or pre-trial detention of a child is not the crime charged but the child’s individual circumstances. The D.C. Code enumerates the factors for the judge to consider when determining a juvenile’s pre-trial detention or an adjudicated juvenile’s post-trial disposition. See D.C. Code § 16-2310. Whether a misdemeanor, drug offense, UUV charge, or even violent offense, the juvenile court judge may already do what is mandated by Bill 17-710 for specific UUV charges. In fact, the judge may now even do more than this bill requires if the judge finds it necessary to achieve rehabilitation of the child and to promote public safety. Although the gravity of an offense may of course indicate a greater need for treatment, no necessary relationship exists between the nature of the offense and the need for or duration of treatment.
Bill 17-710 eliminates the discretion of juvenile court judges by mandating “sentences” related to UUV adjudications, driver or passenger, and inadvertently diminishes the rehabilitative goal of the juvenile system. Under this bill, the judge does not look to the individual offender but to the crime charged and doles out the prescribed punishment regardless of how that may achieve the juvenile’s rehabilitation. And this particular punishment could be counterproductive to rehabilitation. If a child faces a mandatory requirement of 500 hours of community service, then that may take away from other services or activities that the judge would find more useful and order at disposition, such as counseling, drug treatment, other supervision, or academic tutoring.
What’s more, there is no guarantee that these 500 community service hours would serve any rehabilitative goal nor is there a guarantee that the city can provide 500 meaningfulcommunity service hours that would play a positive role in rehabilitation. It is just as likely that this community service, which many youths will view as strict punishment, will only contribute to a juvenile’s resentment for the system and lead to more delinquent behavior. Currently, a judge has discretion to balance the amount of community service or suspension of driving privileges with other needs that the judge determines must also be addressed. See D.C. Code § 16-2320(a).
Likewise, the suspension of a license may not serve the rehabilitation of a child but could mean the loss of a juvenile’s job where transportation is necessary, or an inability for the juvenile to assist in family responsibilities – any array of possibilities. The judge can delay the acquisition of a learner’s permit or license where necessary but to require it could conflict with the very stated goals of the juvenile justice system. Indeed, Bill 17-710, which mandates at least 500 hours of community service, perhaps considerably more for a second offense, but then eliminates what might be many family’s only method of getting the juvenile to the designated community service site, could pose a significant burden for many families, especially those where the juvenile’s parents or caretakers are away at work during the day.
These are only a few of a myriad of considerations DC’s family court judges currently have at their disposal. By taking away a judge’s discretion to determine what is necessary for rehabilitation of a juvenile adjudicated delinquent, mandated punishments such as these may commonly be given that are neither in the best interests of the individual offender or this city. By permitting the bill to go forward, the Council opens the door for other prescribed punishments – focusing on the charge and not the child – and threatens the very role of the judge in juvenile proceedings.
III. Current Trends In Juvenile Crime Do Not Warrant These Measures
It is also crucial to note that there is zero indication that this measure is necessary at this time. The Department of Youth and Rehabilitative Services (“DYRS”) is making great strides in building a system that adequately addresses juvenile delinquency issues in the District by focusing on rehabilitation and other measures – so much so that the Department was recently recognized for its efforts in being named one of the top 50 programs in the Innovations in American Government Awards Competition, as well as being awarded the Annie E. Casey Innovations Award in Children and Family System Reform. In addition, DYRS has successfully collaborated with the probation unit, Court Social Services (“CSS”), which among other things has established a vocational liaison with the Department of Employment Services, special rehabilitative services for girls, and a unit for intensive supervision for serious and repeat offenders. This bill fails to capture the benefits these services provide.
Most importantly, trends in juvenile UUV arrests are down. To illustrate, between 2003 and 2006, juvenile UUV arrests declined annually by 10%, 13% and 2%, respectively. Though 2007 UUV arrests showed a slight annual 5% increase, 2008 has again followed the general downward trend, as juvenile UUV arrests through the end of May are 15% lower than they were at this time last year.
In short, the efforts of DYRS and the juvenile court judges are succeeding. Nothing calls for the punitive measures demanded by this bill that would undermine the very basis of the juvenile justice system in the District. To mandate certain punishments for any crime opens the door to undoing the positive accomplishments thus far and permanently altering the nature of the system by requiring other punishments for other crimes. The purpose of the system is to look at the juvenile’s circumstances and provide services to “place a premium on the rehabilitation of children with the goal of creating productive citizens and to recognize that rehabilitation of children is inextricably connected to the well-being and strength of their families.” D.C. Code § 16-2301.02(5). By mandating punishments without any examination of the juvenile’s need for rehabilitative services contradicts the stated purpose of the system and threatens to undermine the successful efforts of DYRS to fully rehabilitate a juvenile and continue the downward trend in juvenile crime.
- To provide due process through which juveniles and all other interested parties are assured fair hearings, during which applicable constitutional and other legal rights are recognized and enforced;
- To promote youth development and prevent delinquency through early intervention, diversion, and community-based alternatives;
- To preserve and strengthen families whenever possible and to remove a child from the custody of the child's parents, guardian, or other custodian only when it is determined by the appropriate authority to be in the child's best interests or when necessary for the safety and protection of the public;
- To hold a child found to be delinquent accountable for his or her actions, taking into consideration the child's age, education, mental and physical condition, background, and all other relevant factors;
- To place a premium on the rehabilitation of children with the goal of creating productive citizens and to recognize that rehabilitation of children is inextricably connected to the well-being and strength of their families;
- To serve children in their own neighborhood and communities whenever possible;
- To hold the government accountable for the provision of reasonable rehabilitative services;
- To provide for the safety of the public; and
- To achieve the foregoing goals in the least restrictive settings necessary, with a preference at all times for the preservation of the family and the integration of parental, guardian, or custodial accountability and participation in treatment and counseling programs.
 See, e.g. , Va. Code Ann. § 16.1-227 (stating that the “welfare of the child and the family” is a paramount concern of the Commonwealth), In re Thomas J. , 752 A.2d 699 (Md. Ct. Spec. App. 2000) (stating that the overriding goal of Maryland’s juvenile statutory scheme is to rehabilitate and treat delinquent juveniles so that they become useful and productive members of society).
 The Council has also previously recognized that it “shall be the policy of the District of Columbia that with respect to these juveniles the District of Columbia shall be guided by the assumption that juveniles who previously have had little or no contact with the juvenile justice system and who do not represent a danger to the public safety may benefit from an alternative to adjudication that is noncriminal, reformative and protective in nature. . . . Accordingly, the District of Columbia recognizes the appropriateness of alternatives to adjudication, which may include diversion programs and services, for certain juveniles who are in need of supervision or who are arrested for certain nonviolent offenses.” D.C. Code § 16-2305.01.
 Maryland and Virginia also give juvenile court judges wide discretion. See, e.g. , Va. Code Ann. § 16.1-227 (stating that “the judge [of the juvenile court] shall possess all necessary and incidental powers and authority, whether legal or equitable in their nature”); Md. Code Ann. § 3-8A-02 (giving the juvenile court judge the freedom to balance a wide range of factors in juvenile dispositional proceedings including “the care, protection, and wholesome mental and physical development of [the child and] . . . to provide for a program of treatment, training, and rehabilitation consistent with the child's best interests”).
 The charge of UUV in the District of Columbia does not differentiate between driver and passenger, though in certain circumstances the distinction may be a factor in the judge’s determination of culpability and subsequent appropriate rehabilitative services.