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New Legislation Concerning Juveniles
There is quite a bit of new legislation affecting juveniles
that was enacted by the General Assembly during the 1998 session. This
article will focus on changes which affect status and public offenders.
House Bill 89 contained an emergency clause and is already in effect; the
other significant bills become effective 7/15/98. Anything with an * is
already in effect. Changes are organized by topic.
KRS 600.020 (40)* has been amended to exclude contempt
from the definition of "public offense action". Additionally, KRS 635.055*
has been amended to specify that a juvenile found in contempt of court
may not be committed as a public offender as a result of that finding.
Finally, KRS 630.010* has been amended by the addition of a new section
prohibiting the conversion of status offenders into public offenders by
virtue of status conduct. Hopefully, these new provisions will drastically
reduce the number of juveniles being committed as public offenders because
of contempt of court and will end the practice of "boot strapping" status
offenders into public offenders through use of the court’s contempt power.
KRS 610.080* has been amended to specify that a juvenile cannot waive separate disposition unless he has consulted with counsel. Moreover, if the disposition is to be commitment, the child’s waiver of separate disposition is invalid unless the Department of Juvenile Justice (DJJ) or the Cabinet for Families and Children (CFC) consents. This amendment should eliminate the "rocket docket" where juveniles, often unrepresented by counsel, admit guilt at arraignment, waive separate disposition and are committed within only a few minutes.
KRS Chapter 441 has been amended to require that all juveniles
arrested or detained in a juvenile detention facility be fingerprinted.
This includes status offenders. Various amendments to the statutes give
DJJ significant authority over juvenile holding facilities and secure detention
facilities and substantial power in placing detained juveniles. KRS 600.020
(17)* has been amended to include "an alternative form of detention" under
the definition of "detain." KRS 610.265 (2) (b) has been amended to provide
that juveniles who are not charged with capital offenses, class A or B
felonies, but are ordered detained shall be assessed by DJJ and may be
placed in approved detention facility or "program." Additionally, KRS 635.060
(4) and (5) have been amended to allow detention time to be served in a
"detention program" authorized by DJJ. These amendments should result in
fewer juveniles held in secure detention facilities and more assigned by
DJJ to alternative, less secure programs.
KRS 635.060 (3) has been amended to allow DJJ 35 days,
rather than 7 days, to place a committed child. KRS 610.115, which permitted
extended detention (beyond the 7 days then authorized) after commitment,
has been repealed.
KRS 610.340 has been amended to include adjudications
which took place prior to the effective date of the act within records
which may be disclosed to victims.
KRS 158.150 (2) has been amended to require local Boards
of Education which expel students to provide educational services in an
appropriate alternative program unless a finding can be made by clear and
convincing evidence that a student poses a threat to the safety of other
students or the school staff. KRS 158.150 (3) has been amended to permit
school personnel to remove immediately threatening or violent students
from a classroom or school bus. KRS 158.150 (6) (b) has been amended to
provide that, if an Admission and Release Committee finds a special education
student’s behavior is related to his disability, the juvenile may not be
suspended or expelled on the basis of the behavior unless the current placement
can result in injury to the child, other children or educational personnel.
Finally, KRS 158.150 (7) states that the suspension of primary students
is to be considered only in exceptional cases where there are safety issues.
KRS 610.345 has been amended so that any school employee
with whom a juvenile comes in contact can be informed of information concerning
the petition filed against the child and the adjudication for felonies
and for misdemeanors involving drugs, deadly weapons or physical injury.
The notification is to be made within 5 days.
KRS 635.500* has been extensively amended. Previously, judges had discretion about whether to declare any juvenile a juvenile sexual offender. 635.505 (2) was amended to distinguish between felonies under KRS Chapter 510 and 506.010 (attempts) and misdemeanors under Chapter 510. 635.510* requires that a child be declared a sex offender if he is 13 or over and convicted of a 510 felony, felony attempt (506.010), incest (530.020), unlawful transaction with a minor first degree (530.064), or use of a minor in a sexual performance (531.310). If the child is under 13 or convicted of a misdemeanor, he may be declared a juvenile sex offender. KRS 635.510 (2)* is also amended to eliminate language permitting a juvenile to be declared a sex offender prior to adjudication or based on use of force or past history of sex offenses.
NOTE: KRS 635.505 (2) still excludes those who are "actively
psychotic" or "mentally retarded" from the definition of "juvenile sexual
offender."
A new status offense-purchase of tobacco by minors- has
been created by KRS 438.311. Jurisdiction over this behavior is transferred
from the Department of Agriculture to the Juvenile Session of District
Court. Status offenders may be placed in DJJ group homes or lesser level
facilities if both CFC and DJJ agree and the court consents pursuant to
605.090 (1) (c). As mentioned previously, even status offenders who are
lodged in a detention facility will be fingerprinted pursuant to KRS Chapter
441.
KRS 635.100* concerning revocation of supervised placement has been amended to include all juveniles on supervised placement to DJJ rather than only those on supervised placement from residential treatment facilities. The amendments also permit juveniles taken into custody after an alleged violation of terms of supervised placement to be held in a DJJ "facility, program or contract facility" rather than solely a treatment facility. A preliminary hearing is to be conducted within five days rather than 48 hours, and the final hearing is to be conducted within 10 working days of the preliminary hearing. Furthermore, the hearing is to be conducted by a hearing officer rather than a three member board, and the hearing is exempt from the requirements of the Administrative Procedures Act.
All of us who represent juveniles in status and public offense cases should share our ideas and experiences with this new legislation.
Gail Robinson, Assistant Public Advocate
Juvenile Post-Dispositional Unit
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
Tel: (502) 564-8006, #220; Fax: (502) 564-7890
E-mail: grobinson@mail.pa.state.ky.us