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Starting next week, anyone 21 or younger charged with a crime in Vermont will be eligible for youthful offender status. While the change was implemented based on science showing that people in that age group don’t have fully developed brains, some officials are concerned about the increased workload it will cause. The law was signed by then-Gov. Peter Shumlin in 2016.
“Ultimately, the goal is to avoid treating juveniles as adults, with the exception of the most serious offenses, and to mitigate major collateral consequences for youth charged in adult court, including a public record, exclusion from the military, and ineligibility for college loans,”
Shumlin said in a statement after signing the bill into law. Department for Children and Families Commissioner Ken Schatz added, “Vermont will now have a juvenile justice system that reflects the latest in brain development science and that allows youth who’ve committed minor offenses alternative consequences to a criminal record.”
Washington County Deputy State’s Attorney Kristin Gozzi has been the office’s juvenile docket prosecutor for years. Currently, Gozzi said anyone under the age of 18 and over 14 who is charged in criminal adult court could plead guilty to the crime they are accused of and ask for the case to be moved to juvenile court as a youthful offender. A judge would then determine whether the case was appropriate for youthful offender status based on the charges, the risk to public safety, if the person is amenable to treatment and if there are appropriate resources in place for the offender. Those who commit crimes while under the age of 14 have their cases automatically assigned to juvenile court.
If the judge decides that the case is appropriate for juvenile court, the offender is placed on probation and supervised and treated by the Department of Corrections and DCF. If the offender successfully completes probation, they can have the case sealed and their record expunged. If not, the case could be sent back to criminal court.
As of next week, the age of those eligible for youthful offender status is going up from 17 to 21. The system is also changing when it comes to how cases are referred to juvenile court. Instead of the offender pleading guilty, a defense attorney would submit a motion asking the case to be placed in juvenile court. The case is then immediately sealed and the process starts with risk assessments from DCF before a judge decides if the case is suitable for youthful offender status.
If an offender is deemed a low or moderate risk to re-offend, the prosecutor is instructed to send the case to diversion, a restorative alternative to court. “One day you have a regular criminal (case) and the next day, from the public’s standpoint, it’s just gone,” said Washington County State’s Attorney Rory Thibault. No one involved in the case would be able to discuss it either because once a case is in juvenile court, it becomes confidential.
Gozzi noted that victims are allowed to attend hearings in juvenile cases and be a part of the process. “But they are still bound by confidentiality as well,” she said. Gozzi said if a victim isn’t happy with the outcome of a juvenile case, they can’t talk about it publicly or they could face a contempt of court charge. Thibault said he’s anticipating a situation at some point where a victim is going to be upset and it’ll be a test to see if a court is willing to punish that victim.
Chief Superior Judge Brian Grearson didn’t share Thibault’s concern. Grearson said victims in juvenile cases are already bound by confidentiality.
“I understand the concern (of expanding the population). Victims have a right to be heard, but this process, other than expanding the age of individuals that come into the court, is there anyway,” he said.
If an underage offender commits certain crimes, they automatically remove themselves from youthful offender consideration. These 12 crimes are referred to as “the Big 12” and are defined by statute. They include crimes such as kidnapping, murder, aggravated sexual assault and assault and robbery with a dangerous weapon. But there are plenty of crimes not included in the Big 12, such as aggravated murder, driving under the influence with death resulting, lewd and lascivious conduct with a child and aggravated domestic assault.
“It doesn’t make sense that (those crimes) are excluded from that list,” Gozzi said. She noted that no attempted crimes, such as attempted murder or attempted sexual assault, are on the Big 12, so someone under the age of 22 charged with attempted murder could see their case start in juvenile court.
While a judge would still have to accept the case into juvenile court, officials say it would be unlikely in cases involving moderate to extreme violence or threats to public safety. Thibault is already filing anticipatory motions asking the court not to transfer some cases to the juvenile court, such as Tyreke Morton, 18, who is facing two counts of attempted murder for allegedly stabbing a woman in Calais with a steak knife and trying to stab a child as well. Morton is currently being held without bail.
Some prosecutors are already doing what the new law is trying to achieve. Thibault said he already sends younger offenders to diversion or the Community Justice Center in “kids being kids” cases such as retail theft or unlawful mischief. “I think that’s really what the policy intent here was. Is to make sure there isn’t a permanent blemish on a young person’s record for stupid or childish acts, if you will,” he said. Thibault said this shift will take away some of the discretion prosecutors had been exercising. Gozzi said she doesn’t philosophically object to adding 21-year-olds to the juvenile docket. She said, though, more attention needs to be paid to crimes involving public risk.
Bennington County State’s Attorney Erica Marthage has been a strong supporter of the change. Rutland County State’s Attorney Rose Kennedy was contacted for this story, but she forwarded the request to Marthage. Marthage said she has already been working with DCF and DOC on cases involving younger offenders — it’s just formalized now.
“When I have someone at 19 years old accused of committing a series of burglaries, I’m looking at those situations to examine all those same factors anyway. I’m already doing that and I think a lot of state’s attorneys offices are,” she said.
Officials agree the process will get off to a somewhat rocky start. Gozzi said youthful offender cases take more time and effort at every single level compared to criminal cases. She said Washington County currently has 60 pending cases where the offender is 18 to 21 years old. Gozzi knows not all of the cases will petition for youthful offender status, but if half of them do then that’s 30 cases that are immediately moved to the juvenile court and need to be addressed in a timely manner.
“That’s really time intensive and we don’t have more social workers. All of our (DCF) social workers have full caseloads,” she said. Gozzi said the court also has to find time to schedule all those hearings in a calendar where scheduling has already started for September. Thibault said if his office contests a defense attorney’s motion for youthful offender status, there will be a hearing that will likely last half the day with discovery presented and witness testimony. “It’s time consuming,” he said.
Judge Grearson said every year the Legislature makes changes that the Judiciary has to adapt to and the youthful offender change is no different. While he acknowledged the change will have an impact on the court system starting next week, he’s confident the system is ready for it. He said the judiciary has been preparing for the change for over a year.
“We believe that it’s a manageable population if everyone is looking at it the way the Legislature intended them to. That is, let’s not keep these low-risk youth in either the adult system or the juvenile system. That’s where this risk assessment comes in,” he said.
Grearson said those who are 18 to 21 years old and charged with a crime currently get no treatment or supervision right off the bat. They are arraigned and then a few months later they either plead guilty or go to trial. Starting July 1, he said those same people have the ability to get treatment and supervision much sooner. Over the last 10 years, the criminal justice system in Vermont has gone through some changes, Marthage said.
More than in the past, courts are now taking into account the other factors in a person’s life that caused them to commit a crime. “I think there will be growing pains, but in the end I think we’re going to end up with a system that really addresses the whole person. … When you’re talking about someone that’s a young adult, that’s a different situation than someone that’s 45 and has had a life of crime,” she said.
Grearson said if there’s something that doesn’t work in the new system or more resources are needed to address the demand, court officials can go to the Legislature and request more funding or a change in the law.
Originally published on Time Argus.
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