HB 1624-FN – AS INTRODUCED
HOUSE BILL 1624-FN
AN ACT modernizing the juvenile justice system to ensure rehabilitation of juveniles and preservation of juvenile rights.
SPONSORS: Rep. Walz, Merr 23; Rep. Wallner, Merr 10; Rep. Ulery, Hills 37; Sen. Kelly, Dist 10; Sen. Fuller Clark, Dist 21; Sen. Odell, Dist 8
COMMITTEE: Children and Family Law
I. Changes the age of minority for juvenile delinquency proceedings from 17 to 18 years of age.
II. Clarifies competency determinations in juvenile proceedings.
III. Clarifies right to counsel in juvenile hearings under RSA 621:19, I-a.
IV. Changes waiver of counsel procedure for juvenile proceedings.
V. Directs the department of health and human services to collect certain data regarding the juvenile justice program.
VI. Requires the judicial council to adopt rules relative to the appointment and qualification of juvenile defense counsel.
VII. Requires the department of corrections to submit plans for compliance with the Prison Rape Elimination Act (PREA).
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [
in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fourteen
AN ACT modernizing the juvenile justice system to ensure rehabilitation of juveniles and preservation of juvenile rights.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Department of Corrections; Definition of Adult. Amend RSA 21-H:2, I to read as follows:
I. “Adult” means[
, notwithstanding RSA 21:44,] any person [ 17] 18 years of age or older or any person under the age of [ 17] 18 who has been certified as an adult pursuant to RSA 169-B:24.
2 Department of Corrections; Definition of Delinquent. Amend RSA 21-H:2, IV to read as follows:
IV. “Delinquent” or “delinquent child” means[
, notwithstanding RSA 21:44,] a person who has committed an offense before reaching the age of [ 17] 18 years which would be a felony or misdemeanor under the criminal code of this state if committed by an adult.
3 Delinquent Children; Definition of Delinquent. Amend RSA 169-B:2, IV to read as follows:
IV. “Delinquent” means a person who has committed an offense before reaching the age of [
17] 18 years which would be a felony or misdemeanor under the criminal code of this state if committed by an adult, and is expressly found to be in need of counseling, supervision, treatment, or rehabilitation as a consequence thereof.
4 Delinquent Children; Definition of Minor. Amend RSA 169-B:2, VI to read as follows:
VI. “Minor” means a person under the age of [
5 Delinquent Children; Jurisdiction. Amend RSA 169-B:4, I to read as follows:
I. The court shall have jurisdiction over any minor with respect to whom a petition is filed under this chapter after the minor’s [
seventeenth] eighteenth and before the minor’s [ eighteenth] nineteenth birthday for an alleged delinquency offense committed before the minor’s [ seventeenth] eighteenth birthday.
6 Delinquent Children; Jurisdiction. Amend the introductory paragraph of RSA 169-B:4, II to read as follows:
II. The court may retain jurisdiction over any minor during the period after the minor’s [
seventeenth] eighteenth birthday as justice may require for any minor who, prior to the minor’s [ seventeenth] eighteenth birthday, was adjudicated delinquent and:
7 Delinquent Children; Jurisdiction. Amend RSA 169-B:4, II(b) to read as follows:
(b) Who has, prior to the minor’s [
seventeenth] eighteenth birthday, consented to the court’s retention of jurisdiction; and
8 Delinquent Children; Jurisdiction. Amend the introductory paragraph of RSA 169-B:4, IV to read as follows:
IV. The court shall close the case when the minor reaches age [
17] 18 or, if jurisdiction is extended pursuant to paragraph II, when:
9 Delinquent Children; Jurisdiction. Amend RSA 169-B:4, VII to read as follows:
VII. In any instance in which the statute of limitations has not tolled and no juvenile petition has been filed based upon acts committed before the minor’s [
seventeenth] eighteenth birthday, the state may proceed against the person in the criminal justice system after that person’s eighteenth birthday.
10 Delinquent Children; Dispositional Hearing; Age of Juvenile. Amend RSA 169-B:19, III-a(a) to read as follows:
III-a.(a) Prior to the [
seventeenth] eighteenth birthday of a minor who had been adjudicated delinquent for committing a violent crime as defined in RSA 169-B:35-a, I(c), or who had been petitioned to court on 4 or more occasions and adjudicated delinquent in 4 separate adjudicatory hearings which alleged misdemeanor or felony offenses, the prosecutor or the department of health and human services may file a motion with the court to extend jurisdiction pursuant to RSA 169-B:4, V. The department of youth development services may file a motion to extend jurisdiction for any minor committed to its custody pursuant to RSA 169-B:19, I(j). The department of corrections shall be served a copy of the motion and be a party to the proceeding.
11 Delinquent Children; Petition by County Attorney or Attorney General; Age of Juvenile. Amend RSA 169-B:25 to read as follows:
169-B:25 Petition by County Attorney or Attorney General. If facts are presented to the county attorney or attorney general establishing that a person under the age of [
17] 18 has been guilty of conduct which constitutes a felony or would amount to a felony in the case of an adult and if such person is not within the jurisdiction of this state, the county attorney or attorney general may file a petition with the judge of the municipal or district court which would otherwise have jurisdiction under the provisions of this chapter. The petition shall set forth the nature of the offense with which the person is charged and shall specify the person’s whereabouts if known. On receipt of such petition, the court may summarily authorize the county attorney or attorney general to proceed against such person under regular criminal procedures, and without regard to the provisions of this chapter. Pending determination by the superior court as provided in this section and pending final disposition of the matter, such persons shall be bailable with sufficient sureties as in the case of adults and, in default thereof, may be committed to the custody of the juvenile probation and parole officer or detained at a county correctional facility unless detention elsewhere is ordered by the superior court. The superior court shall determine, after hearing, whether such person shall be treated as a juvenile under the provisions of this section or whether the case shall be disposed of according to regular criminal procedures.
12 Juvenile Delinquency; Petition by Minor; Age. Amend RSA 169-B:26 to read as follows:
169-B:26 Petition by Minor. At any time prior to hearing pursuant to RSA 169-B:16, a minor who is charged with an act of delinquency committed after the minor’s [
sixteenth] seventeenth birthday may petition the court to be tried as an adult and to have such case dealt with in the same manner as any other criminal prosecution.
13 Delinquent Children; Juvenile Court Records; Age. Amend RSA 169-B:35, III(a) and (b) to read as follows:
(a) Police officers and prosecutors involved in the investigation and prosecution of criminal acts shall be authorized to access police records concerning juvenile delinquency, including the files of persons who at the time of the inquiry are over the age of [
17] 18, and to utilize for the purposes of investigation and prosecution of criminal cases police investigative files on acts of juvenile delinquency, including information from police reports, exemplars, and forensic investigations.
(b) Prosecutors involved in the prosecution of criminal acts shall be authorized to access police records concerning juvenile delinquency or records of adjudications of delinquency, including the files of persons who at the time of the inquiry are over the age of [
17] 18, if the prosecutor has reason to believe that the individual may be a witness in a criminal case. The prosecutor may disclose the existence of an adjudication for juvenile delinquency only when such disclosure is constitutionally required or after the court having jurisdiction over the criminal prosecution orders its disclosure.
14 Parole of Delinquents; Effect of Recommittal; Age of Delinquent. Amend RSA 170-H:11 to read as follows:
170-H:11 Effect of Recommittal. Any delinquent whose parole is revoked shall be returned to the custody of the commissioner. The offender may at any time prior to his or her [
seventeenth] eighteenth birthday be paroled again. If not paroled, a delinquent shall remain in custody until his or her [ seventeenth] eighteenth birthday.
15 Youth Development Center; Definition of Child. Amend RSA 621:3, II to read as follows:
II. “Child,” “minor,” or “juvenile” means a person under the age of [
17] 18 years.
16 Youth Development Center; Definition of Delinquent. Amend RSA 621:3, V to read as follows:
V. “Delinquent” or “delinquent child” means a minor who has committed an offense before reaching the age of [
17] 18 years which would be a felony or misdemeanor under the criminal code of this state if committed by an adult.
17 Youth Development Center; Definition of Child. Amend RSA 621:3, VII to read as follows:
VII. “Minority” means the period of time before the age of [
17] 18 years and terminates on the [ seventeenth] eighteenth birthday.
18 Youth Development Center; Effect of Release; Conditions of Release; Age of Minor. Amend RSA 621:24 and the introductory paragraph of RSA 621:25 to read as follows:
621:24 Effect of Release. No administrative release or parole of a child shall operate as a discharge of the child from the center. The department shall continue to have control of children on administrative release to parole or parole until they reach the age of [
17] 18 years, and the control conferred by the department upon others shall be conferred upon them as agents of the department, except where a child is discharged under RSA 621:19.
621:25 Remands and Changes in Conditions of Release. The board or the commissioner, subject to the approval of the board, may modify or cancel any arrangements or conditions relative to release, other than discharge of a child, or may order a child remanded to the center, until the child reaches the age of [
17] 18 years or is discharged under RSA 621:19. Under the direction of the board and subject to rules adopted by the commissioner the department shall:
19 Determination of Competence. RSA 169-B:20 is repealed and reenacted to read as follows:
169-B:20 Determination of Competence.
I. Definitions. As used in this section, unless the context otherwise indicates, the following terms have the following meanings:
(a) “Chronological immaturity” means a condition based on a juvenile’s chronological age and significant lack of developmental skills when the juvenile has no significant mental illness or mental retardation.
(b) “Mental illness” means any diagnosable mental impairment supported by the most current edition of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association.
(c) “Developmental disability” means a disability which is attributable to an intellectual disability, cerebral palsy, epilepsy, autism, or a specific learning disability, or any other condition of an individual found to be closely related to an intellectual disability as it refers to general intellectual functioning or impairment in adaptive behavior or requires treatment similar to that required for persons with an intellectual disability.
(d) “Intellectual disability” means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior.
II. A minor is competent to proceed in a delinquency proceeding if the minor has:
(a) A rational as well as a factual understanding of the proceedings; and
(b) A sufficient present ability to consult with counsel with a reasonable degree of rational understanding.
III. The issue of a competency to proceed may be raised by the minor, by the prosecutor, or by the court at any point in the proceeding. A competency determination is necessary whenever the court has a bona fide or legitimate doubt as to a competency to proceed.
IV. If the court determines that a competency determination is necessary, it shall order that a minor be examined to evaluate the minor’s competency to proceed. The order shall require that the competency examination take place within 21 days and the report of the evaluation be filed with the court within 28 days of the court’s order.
V. A competency evaluation may be conducted by an entity approved by the commissioner of health and human services, which may include an agency other than the Philbrook center, a psychiatrist, or psychologist licensed in the state of New Hampshire. The commissioner shall adopt rules, pursuant to RSA 541-A, establishing the process for approval as an examiner as well as the qualifications required for approval, which shall be based on generally accepted standards for forensic psychiatrists and psychologists. The expense of such evaluation shall be borne by the department of health and human services as provided in RSA 169-B:40, I(a) and shall not be subject to reimbursement under RSA 169-B:40, I(c).
VI. Pending a competency examination, the court shall suspend proceedings on the petition. The suspension shall remain in effect pending the outcome of a competency determination hearing.
VII.(a) The examiner’s report shall address the juvenile’s capacity and ability to:
(1) Appreciate the allegations of the petition.
(2) Appreciate the nature of the adversarial process, including:
(A) Having a factual understanding of the participants in the juvenile’s proceeding, including the judge, defense counsel, prosecutor, and mental health expert; and
(B) Having a rational understanding of the role of each participant in the proceeding.
(3) Appreciate the range of possible dispositions that may be imposed in the proceedings against the minor and recognize how possible dispositions imposed in the proceedings will affect the minor;
(4) Appreciate the impact of the minor’s actions on others;
(5) Disclose to counsel facts pertinent to the proceedings at issue including:
(A) Ability to articulate thoughts.
(B) Ability to articulate emotions.
(C) Ability to accurately and reliably relate to a sequence of events.
(D) Display logical and autonomous decision making.
(E) Display appropriate courtroom behavior.
(F) Testify relevantly at proceedings.
(G) Demonstrate any other capacity or ability either separately identified by the court or determined by the examiner to be relevant to the court’s determination.
(b) In assessing the minor’s competency, the examiner shall compare the minor being examined to juvenile norms that are broadly defined as those skills typically possessed by the average minor defendant adjudicated in the juvenile justice system.
(c) The examiner shall determine and report if the minor suffers from mental illness, developmental disability, or chronological immaturity.
(d) If the minor suffers from mental illness, developmental disability, or chronological immaturity, the examiner shall report the severity of the impairment and its potential effect on the minor’s competency to proceed.
(e) If the examiner determines that the minor suffers from chronological immaturity, the examiner shall report a comparison of the minor to the average juvenile defendant.
(f) If the examiner determines that the minor suffers from a mental illness, the examiner shall provide the following information:
(1) The prognosis of the mental illness; and
(2) Whether the minor is taking any medication and, if so, what medication.
VIII. Following receipt of the competency examination report from the examiner, the court shall provide copies of the report to the parties and hold a competency determination hearing. The court may consider the report of the examiner, together with all other evidence relevant to the issue of competency, in its determination whether the minor is competent to proceed. If the court finds that the minor is competent to proceed, the court shall promptly resume the proceedings. If the court is not satisfied that the minor is competent to proceed, the court shall dismiss the petition.
IX. The prosecution shall have the burden of proving competence by a preponderance of the evidence.
X. Statements made by the minor in the course of a competency examination shall not be admitted as evidence in the adjudicatory or dispositional stage of the proceedings. The evaluation facility, agency, or individual shall keep records; but no reports or records of information shall be made available, other than to the court and parties, except upon the written consent of the minor if an adult at the time of consent or of the minor’s parent or guardian.
XI.(a) Notwithstanding a finding by the court that the minor is competent to proceed in a juvenile proceeding, if the minor is subsequently transferred to the superior court, the issue of the minor’s competency may be revisited.
(b) If a juvenile is found not competent to stand trial, the judge may refer the juvenile to the department of health and human services to assess eligibility for services through the department.
20 Appointment and Waiver of Counsel. RSA 169-B:12, I-II are repealed and reenacted to read as follows:
I. Absent a valid waiver, the court shall appoint counsel at the time of arraignment of an indigent minor, provided that an indigent minor detained pursuant to RSA 169-B:11, III, shall have counsel appointed upon the issuance of the detention order. For purposes of the appointment of counsel under this section, an indigent minor shall be a minor who satisfies the court, after appropriate inquiry, that the minor is financially unable to independently obtain counsel. If the court has received information indicating that the minor has a cognitive, emotional, learning, or sensory disability, the court shall require the minor to consult with counsel.
I-a. When an attorney is appointed as counsel for a child, representation shall include counsel and investigative, expert, and other services, including process to compel the attendance of witnesses, as may be necessary to protect the rights of the child.
II. The court may accept a waiver of counsel in a delinquency proceeding only when:
(a) The minor is represented by a non-hostile parent, guardian, or custodian;
(b) Both the minor and parent, guardian, or custodian agree to waive counsel;
(c) In the court’s opinion the waiver is made competently, voluntarily, and with full understanding of the consequences;
(d) The petition does not allege a violation of RSA 631:1, RSA 631:2, RSA 635:1, or any violation of RSA 630, RSA 632-A, RSA 633, or RSA 636; and
(e) The prosecution has informed the court that it does not intend to seek certification pursuant to RSA 169-B:24, RSA 169-B:25, or any other provision of law permitting adult prosecution of the minor.
21 Delinquent Children; Dispositional Hearing; Commitment. RSA 169-B:19, I(j) is repealed and reenacted to read as follows:
(j) Commit the minor to the custody of the department of health and human services for the remainder of minority. Commitment under this subparagraph may only be made following written findings of fact by the court, supported by clear and convincing evidence, that commitment is necessary to protect the safety of the minor or of the community, and may only be made if the minor has not waived the right to counsel at any stage of the proceedings. Commitment may not be based on a finding of contempt of court if the minor has waived counsel in the contempt proceeding or at any stage of the proceedings from which the contempt arises. Commitment may include, but is not limited to, placement by the department of health and human services at a facility certified for the commitment of minors pursuant to RSA 169-B:19, VI, administrative release to parole pursuant to RSA 621:19, or administrative release consistent with the cap on youth development center population under RSA 621:10, provided that the appropriate juvenile probation and parole officer is notified.
22 Release and Discharge from Youth Development Center. RSA 621:19 I-a is repealed and reenacted to read as follows:
I-a. The board shall release, pursuant to paragraph I, any child committed to its care for a delinquency adjudication based on an offense other than a violent crime as defined in RSA 169-B:35-a no later than 6 months following the child’s commitment pursuant to RSA 169-B:19, I(j). Release is not required under this paragraph during the period that a child is the subject of a delinquency petition which is awaiting adjudication or disposition. The department may seek a waiver of this provision from the court which ordered the commitment of the child, which may be granted by the court following written findings of fact supported by clear and convincing evidence that continued commitment is necessary to protect the safety of the minor or the community. Such a waiver may be granted for up to 90 days. The number of waivers which may be granted in a particular case is not limited. In each instance that the court considers whether to grant a waiver pursuant to this section, the child shall be entitled to the assistance of counsel, which shall not be waived except following consultation between the child and a parent or counsel. Consultation between a child and parent is not sufficient to support waiver under this section if the parent was a victim or complainant in the underlying proceeding or has been a witness or provided information in support of the basis for revocation in a parole revocation proceeding involving the child. Children known to the department of health and human services or the court to have an emotional disorder, intellectual disability, or any other condition which may be expected to interfere with a child’s ability to understand the proceedings, make decisions, or otherwise handle the proceedings without the assistance of counsel may not waive the right to counsel guaranteed by this section.
23 Case Closure and Review of Disposition. RSA 169-B:31 is repealed and reenacted to read as follows:
169-B:31 Case Closure and Review of Disposition. Upon making a finding that the purposes of this chapter have been met with regard to the minor named in the petition, or for such other reason the court may deem appropriate and consistent with the purposes of this chapter, the court may order a case closed. Any case remaining open for 12 months after the date of the disposition shall be reviewed by the court annually and closed, unless the court finds by a preponderance of the evidence that the continued provision of services and court involvement are necessary and shall be fruitful to rehabilitate the minor or protect the public interest. All such findings shall be in writing and shall include the basis upon which those findings were made. Upon request by the child, the court shall also review any case in which the child remains at the youth development center more than 6 months after the order of commitment without having been released on parole or having been returned to the youth development center following revocation of parole. Successive requests for review shall be granted upon request by the child but the court may deny such requests without a hearing if a review was held less than 90 days prior to receipt of a request for review. In each instance that the court reviews a case in which the child remains at the youth development center at the time of review, the child shall be entitled to the assistance of counsel, which may not be waived except following consultation between the child and a parent or counsel. Consultation between a child and parent is not sufficient to support waiver under this section if the parent was a victim or complainant in the underlying proceeding or has been a witness or provided information in support of the basis for revocation in a parole revocation proceeding involving the child. Children known to the department of health and human services or the court to have an emotional disorder, intellectual disability, or any other condition which may be expected to interfere with a child’s ability to understand the proceedings, make decisions, or otherwise handle the proceedings without the assistance of counsel may not waive the right to counsel guaranteed by this section.
24 New Section; Data Collection; Reporting Requirement. Amend RSA 169-B by inserting after section 31-a the following new section:
169-B:31-b Data Collection; Reporting Requirement.
I. The department shall establish a system to collect data related to:
(a) Charges which led to involvement with the juvenile justice system.
(b) The racial and ethnic identity of the child.
(c) The length of time a child receives services under this chapter, beginning at the time of arraignment.
(d) The identity of paid services or programs to whom the department has referred a child or family.
(e) Any other information, including outcome data, that may assist the department and the court in evaluating the availability and effectiveness of services for children who receive assistance under this chapter.
(f) The type of services ordered by the court after adjudication and disposition.
II. The department shall, upon request, make available to members of the public, compilations of the data which do not contain identifying information.
III. Beginning on or before December 30, 2014, the department shall provide quarterly reports regarding cases handled pursuant to this chapter to the chair of the house children and family law committee, the chair of the senate health, education and human services committee, or to the chairs of their successor committees, as well as the chair of the joint fiscal committee. The reports shall include:
(a) Total census at Sununu Youth Services Center (SYSC) at the beginning of each quarterly reported period reported by:
(2) County of residence.
(3) Status (i.e. pre-trial, confinement).
(4) Criminal charge.
(b) The number of 6 month parole hearings and the outcomes during the previous quarter and year to date.
25 New Section; Juvenile Defense; Assigned Counsel. Amend RSA 604-A by inserting after section 2-d the following new section:
604-A:2-e Counsel in Juvenile Delinquency Cases. Courts assigning counsel in RSA 169-B proceedings shall do so in accordance with rules adopted by the judicial council pursuant to RSA 541-A.
26 New Paragraph; Juvenile Defense; Qualifications. Amend RSA 604-A:10 by inserting after paragraph IV the following new paragraph:
V. The judicial council shall adopt rules pursuant to RSA 541-A relative to appointment for juvenile counsel. Such rules shall establish training, experience, and other qualifications for attorneys to represent minors in such proceedings, and shall be developed with consideration of relevant national standards including, but not limited to, the Juvenile Justice Standards of the Institute of Judicial Administration and American Bar Association.
27 Department of Corrections; Report Regarding Compliance with the Prison Rape Elimination Act (PREA).
I. The department of corrections shall submit a plan outlining the plan to comply with the Prison Rape Elimination Act (PREA), 42 U.S.C. section 15601 et seq. The plan shall include interim and final steps to be taken to provide sight and sound separation between juvenile offenders and adult offenders, as required by PREA. The plan shall include an expected compliance date, total costs for all activities related to compliance, and any areas of non-compliance remaining in each phase.
II.(a) Each county jail shall develop a plan outlining activities required to comply with PREA. The plan shall include interim and final steps to be taken to provide sight and sound separation between juvenile offenders and adult offenders, as required by PREA. The plan shall include an expected compliance, date, total costs for all activities related to compliance, and any areas of non-compliance remaining in each phase.
(b) The counties may submit their plans and costs in aggregate.
III. Beginning January 1, 2016, entities named in this section shall submit reports on a semi-annual basis to the governor, senate president, speaker of the house of representatives, chairperson of the senate judiciary committee, chairpersons of the house criminal justice and public safety and child and family law committees, and the house and senate clerks.
28 Effective Date. This act shall take effect July 1, 2015.
HB 1624-FN - FISCAL NOTE
AN ACT modernizing the juvenile justice system to ensure rehabilitation of juveniles and preservation of juvenile rights.
The Judicial Branch, Judicial Council, and the Departments of Justice and Corrections state this bill, as introduced, will increase state expenditures by indeterminable amounts in FY 2016 and each year thereafter. The Department of Health and Human Services state this bill, as introduced, will increase state revenue and expenditures by indeterminable amounts in FY 2016 and each year thereafter. The New Hampshire Association of Counties states this bill, as introduced, may reduce county expenditures and revenues by indeterminable amounts in FY 2016 and each year thereafter. There will be no fiscal impact on local revenues and expenditures.
The Judicial Branch states this bill would amend several statutory sections, mostly within the juvenile delinquency statute. The first eighteen sections would change the age of minority for juvenile delinquency proceedings from 17 to 18 years of age. The Branch states the most recent data available on the number of 17 year old offenders in the district and superior courts is from 2003. The Branch indicates, for the purpose of this fiscal note, they assume case volume against 17 year olds has and will remain constant at the 2003 level. It is also assumed that all of the criminal cases against 17 year olds, whether class B or class A misdemeanors in the district court or felonies in the superior court, would be brought as juvenile cases under this bill. The Branch also assumes that each criminal case results in one juvenile petition. Due to the fact that some offenders will have more than one misdemeanor and/or felony charge, the number of juvenile cases resulting from the proposed bill is indeterminable. The Branch estimates the annual increase in costs for current cases in the district court will be $469,488, and decreased costs for current cases in the superior court will be $39,213, for a net additional annual cost of $430,235. The Branch expects sections 19 through 27 of the proposed bill will have a fiscal impact of less than $10,000 on the Branch’s budget.
The Judicial Council states this bill does three things of importance to the Council’s operations: changes the age of majority from 17 to 18 for the purposes of the criminal and juvenile justice systems, requires the Council establish and enforce eligibility standards for lawyers who serve as counsel for juveniles, and changes the waiver of counsel procedure for juvenile proceedings. The Council states criminal acts involving 17-year olds currently resulting in class A misdemeanor charges would be brought as delinquency proceedings under this bill. The Council assumes the same number of 17-year olds would seek counsel, whether they were faced with a class A misdemeanor or a delinquency petition. The Council states the cost of providing counsel for a class A misdemeanor is roughly the same as the cost of providing representation in a delinquency petition. In misdemeanor matters there is a greater likelihood of appeal to the superior court and in juvenile matters there is a greater likelihood of future review hearings requiring the presence of counsel. The Council assumes these costs would offset and increasing the age to 18 would not impact the Council’s expenditures for class A misdemeanors. Criminal acts involving 17-year olds currently resulting in class B misdemeanor charges would be brought as delinquency charges under this bill. Since there is no right to counsel for class B misdemeanors, and there is for a delinquency petition, the Council assumes the bill would increase the number of delinquency matters requiring the assistance of counsel. The Council states serious criminal behavior can result in felony charges against 17-year olds. The Council assumes an indeterminate number of cases now brought as adult felonies in the superior court would instead be brought as delinquency petitions in the family division. The Council assumes the cost to the indigent defense system of providing representation in delinquency matters roughly approximates the cost of providing representation in adult felony cases prosecuted in the superior court. For extremely serious criminal behavior, the Council assumes the State would seek the juvenile’s certification to the superior court. In the last year the Public Defender Program handled only three certifications to the superior court. The Council assumes there would be no net change in indigent defense expenditures for adult criminal proceedings in the superior court.
The Council states, in accordance with RSA 604-A:2, representation is provided in the first instance by the Public Defender Program. The Public Defender Program provides representation in over 85% of the indigent defense cases each year. The Council states there is capacity in the Public Defender Program to absorb a modest number of additional cases without creating pressure to increase State appropriations. In those instances in which the Public Defender Program cannot provide representation because of a potential conflict of interest, the cases go to contract counsel or assigned counsel. These providers are paid on a per-unit or per-hour basis and any increase in the number of cases handled by them will directly increase the expenditures of the Judicial Council. In the contract counsel system, delinquency cases are paid at $275 will class B felonies are paid at $756.25. If those cases are handled by attorneys in the assigned counsel system, then cases are billed at $60 per hour with a fee cap of $1,400 for delinquencies. The added precautions that dissuade or prevent a juvenile from waiving the assistance of counsel will increase the instances in which counsel must be appointed to represent the accused.
Finally, the Judicial Council states, the added regulatory scheme governing the qualifications of counsel for juveniles in delinquency cases will increase the administrative burden on the Council by an indeterminable amount.
The Department of Health and Human Services assumes the cost to provide services, placements, and programs for 17 year olds will be comparable to the costs for 16 year olds. The Department indicates in FY 2012, the cost to provide services, placements, and programs for 266 16 year olds was $5,287,493. Assuming a comparable number of 17 year olds would enter or remain in the juvenile justice system, the Department estimates this bill will increase state expenditures by $5,287,493 in FY 2016 and each year thereafter. The Department states, on average, the costs for these services are paid with 47.4% state general funds and 52.6% federal funds. The Department anticipates it will need three additional Juvenile Probation and Parole Officers, funded with 68% state general funds and 32% federal funds, to serve this population. In addition, the Department states the bill would repeal and replace the current statute for determination of competence and exempt the cost of competency evaluations from the requirement that parents reimburse the state for services provided. In FY 2013 the Department spent $47,343 for competency evaluations; however the Department is not able to project the fiscal impact of this proposed change. Assuming an effective date of July 1, 2015, the Department estimates the fiscal impact of the bill as follows:
Services, placement and program costs:
Personnel and related costs:
Total of Estimated Costs:
State General Fund
The Department of Corrections is not able to determine the fiscal impact of this bill because it does not have sufficient detail to predict the number of individuals who would be subject to this legislation. The Department of Corrections states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2013 was $32,872. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2013 was $570. The Department states it is unable to estimate the cost of submitting plans for compliance with the Prison Rape Elimination Act (PREA) at this time.
The New Hampshire Association of Counties states under current law 17-year olds are treated as adults in the criminal justice system and are detained upon arrest and sentenced to incarceration in the county correctional facilities. The federal Prison Rape Elimination Act requires sight and sound separation for all incarcerated individuals under the age of 18. To comply with the federal law the county superintendents must separate inmates under the age of 18 for housing, dining and programming purposes, or provide one-on one corrections officer supervision while the 17 year old is in contact with older inmates. The counties estimate the construction costs to comply with the federal requirement to house inmates under the age of 18 separately will be from $3 million to $10 million. In addition, the Association states some facilities have no capacity to expand current sites and would need to contract to house the young inmates at another facility outside of the county. The additional annual cost for alternative supervision is estimated by the individual counties to range upwards of $250,000 per county. The Association states if the age change was effective immediately, the counties would not incur these additional costs except for in cases where an individual under 18 is certified as an adult. The Association is not able to determine the actual fiscal impact since the number of individuals under 18 who would be detained, incarcerated, or certified as adults is not known.
The Department of Justice states these cases are typically handled by local or county prosecutors. The Department states it would represent the State on any appeal from a conviction for such an offense, and expects there may be a small increase in the number of appellate cases it handles. The Department indicates any fiscal impact would be minimal and could be handled within the current budget.
The New Hampshire Municipal Association does not expect this bill will have a fiscal impact on municipal revenue or expenditures.