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COLLATERAL CONSEQUENCES OF JUVENILE ADJUDICATIONS OF DELINQUENCY

COLLATERAL CONSEQUENCES OF JUVENILE ADJUDICATIONS OF DELINQUENCY. OBJECTIVES. The objectives of this session are to explore the collateral consequences of juvenile adjudications of delinquency and various approaches currently being pursued to reduce their adverse effects.

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COLLATERAL CONSEQUENCES OF JUVENILE ADJUDICATIONS OF DELINQUENCY

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  1. COLLATERAL CONSEQUENCESOF JUVENILE ADJUDICATIONS OF DELINQUENCY

  2. OBJECTIVES The objectives of this session are to explore the collateral consequences of juvenile adjudications of delinquency and various approaches currently being pursued to reduce their adverse effects. What is a collateral consequence? U.S. v. Romero – Vilca, 850 F. 2d 177 (3d Cir. 1988): defines a collateral consequence as “ one that is not related to the length or nature of the sentence imposed on the basis of the plea.”

  3. SENTENCING ENHANCEMENTS • Adjudications of delinquency trigger sentencing enhancement provisions of state and federal statues leading to longer periods of incarceration in adult systems. 2. For example, under Pennsylvania law, sentencing guidelines “specify a range of sentences of increased severity for defendants previously … adjudicated of one or more misdemeanor or felony offenses committed prior to the current offense.” 42 Pa. C.S. 2154 (a)(2).

  4. Sentencing Enhancements • 1. The relevant adult offense does not have to be a felony. • 2. However, under Pennsylvania law, the delinquent act that leads to the adjudications of delinquency that triggers the enhancement must have occurred before the 14th birthday of the defendant. 303.7(a)(4). • 3. This age requirement may vary from one state to another.

  5. SENTENCING ENHANCEMENTS • 1. The Federal Armed Career Criminal Act mandates a 15 year minimum sentence for “felons in possession" of an authorized firearm. 18 U.S.C.A. 922. • 2. A “convicted felon” under this section, includes juvenile adjudications of delinquency.

  6. DNA RECORDS • 1. In many states, including Pennsylvania, juveniles adjudicated delinquent of felony sex offenses, and other enumerated offenses are required to have DNA samples drawn for inclusion into the State DNA Data Base and State DNA Data Bank. • 2. Samples are taken as soon as possible following an adjudication of delinquency. • 3. Under no circumstances may the individuals be released until the sample is obtained.

  7. DNA RECORDS • 1. In Pennsylvania, a “Felony Sex Offense” is defined as a felony offense or an attempt, conspiracy, or solicitation to commit a felony offense such as: • rape • statutory sexual assault • aggravated indecent assault • incest • prostitution of a child under the age of 16 • sexual exploitation of a child, or similar offenses

  8. DNA RECORDS • 1. DNA Samples are also required to be taken for other serious felonies committed by juveniles including the following: homicide, aggravated assault, arson, burglary, criminal trespass of buildings and occupied structures, robbery, robbery of a motor vehicle, possession with intent to deliver a controlled substance, unauthorized possession of a firearm and similar offenses.

  9. DNA RECORDS • 1. In Pennsylvania, expungement of the State DNA Data Base and the State DNA Data Bank is authorized where the adjudication of delinquency has been reversed and dismissed or the DNA profile was included by mistake. 44 Pa. C.S. 2321 (a). • 2. A mandatory fee of $250 is required to cover the cost of collection (unless the court finds substantial hardship). 44 Pa.C.S. 2322.

  10. REGISTRATION FOR JUVENILE SEX OFFENDERS • Some states currently require juvenile sex offenders to register. • However, these state registration laws will be prospectively repealed when the Adam Walsh child Protection & Safety Act of 2006 (Public Law 109-248) and the Sex Offender Registration Act (SORNA) go into effect throughout the nation on July 27,2009.

  11. REGISTRATION FOR JUVENILE SEX OFFENDERS • The new law is currently in effect in four states: Ohio, Florida, Mississippi and Delaware. • What are the requirements of the Adam Walsh Act and SORNA? • 1. The general requirement is that the juvenile must be 14 years old, or older, at the time of the offense. However, Delaware has established a lower age of 10.

  12. REGISTRATION FOR JUVENILE SEX OFFENDERS • 2. The child must be adjudicated delinquent for the crime of rape or sexual battery. Indecent assault, even as a misdemeanor, could trigger the Act in some jurisdictions. • 3. The child would be required to register for 25 years to life. A violation of the registration requirement would trigger the filing of a criminal charge against the child.

  13. REGISTRATION FOR JUVENILE SEX OFFENDERS • 4. The registration requirement will be automatic, without the benefit of judicial review. • 5. Initial rulings by the Justice Department have indicated that the Act will be applied retroactively. However, in response to comments on the rules, it appears that this position may be reconsidered.

  14. SUSPENSIONS, TRANSFERS AND EXPULSIONS FROM SCHOOL • In Pennsylvania, any child found to be in possession of a weapon on school property must be expelled. 24 Pa. C.S. 13-1317.2 (a). • Most expulsions are put into effect by school administrators without regard to whether a child has been adjudicated delinquent.

  15. SUSPENSIONS, TRANSFERS AND EXPULSIONS FROM SCHOOL • Philadelphia, which has over 2,000 students in remedial disciplinary schools, is permitted to transfer its students to these schools as the equivalent of, and as an alternative to expulsions. • Attendance at a remedial disciplinary school is required by law for those children returning to schools in any city of the 1st Class in Pennsylvania (the Philadelphia School System) from delinquent placement. 24 Pa. C.S. 13-1310 (c), Act 88. • Due process requires that a child be given an opportunity challenge an assignment to one of these special schools. D.C. v. School District of Philadelphia, 879 A. 2d 408 (Pa. Cmwlth. 2005)

  16. RESTRICTIONS ON ACCESS TO FIREARMS • Juveniles who have been adjudicated delinquent of certain offenses in Pennsylvania, or elsewhere, “shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm” in Pennsylvania. 18 Pa. C.S. 6105 (c)(7).

  17. RESTRICTIONS ON ACCESS TO FIREARMS • Juveniles adjudicated delinquent for the following conduct may lose their privileges to have a firearm for life: murder, voluntary manslaughter, aggravated assault, assault by a prisoner, assault by a life prisoner, kidnapping, rape, involuntary deviate sexual intercourse, arson and related offenses, burglary, robbery and theft by extortion when accompanied by threats of violence.

  18. RESTRICTIONS ON ACCESS TO FIREARMS • Juveniles are restricted in their access to firearms for 15 years after the last applicable delinquent adjudication, or upon the person reaching the age of 30, which ever is earlier for various other offenses such as stalking, unlawful restraint and possession of a weapon on school property. 18 Pa. C.S. 6105 (c)(8). • The same restrictions may apply in other states.

  19. RESTRICTIONS ON ACCESS TO THE MILITARY SERVICES • An adjudication of delinquency counts as a conviction of a criminal offense under Army regulations. Army Regulations 601-210, Chapter 4, Paragraphs 4-20 – 4-23. • Convicted felons are ineligible for the military unless the Secretary of Defense says otherwise. 10 U.S.C.A. 504.

  20. RESTRICTIONS ON ACCESS TO THE MILITARY SERVICES • Generally, applicants are disqualified for service after a conviction for two or more felonies, or one felony and two misdemeanors. • However, the Air Force, Navy and Marines examine juvenile adjudications of delinquency on a case-by-case basis.

  21. RESTRICTIONS ON ACCESS TO THE MILITARY SERVICES • Once applicants for the military services pass the entrance examinations, recruiters have frequently visited us at our offices at the Defender Association of Philadelphia requesting that we file expungement motions for eager recruits.

  22. RESTRICTIONS ON ACCESS TO PUBLIC HOUSING • Public housing authorities have the right to evict families of delinquent children, even if their delinquent conduct does not occur on public housing property. Dept. of HUD v. Rucker, 535 U.S. 125, 133-136 (2002).

  23. RESTRICTIONS ON ACCESS TO HOUSING • Eviction proceedings may be expedited in the case of criminal or drug activity. 42 U.S.C. 1437d(k). • Authorities may terminate a lease during term if ANY tenant engages in drug related activities on or near the premises, or “any criminal activity that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity.” 42 U.S.C. 1437 (f)(d)(1)(B)(iii).

  24. RESTRICTIONS ON ACCESS TO HOUSING • Furthermore, ANYONE, subject to a lifetime registration requirement under a state sex offender registration statue is ineligible for federally assisted housing. 42 U.S.C. 1437n(f). • Query? Will this statutory provision apply to children under the jurisdiction of the Adam Walsh Act?

  25. IMMIGRATION CONSEQUENCES • A juvenile adjudication of delinquency is not a “conviction” under federal immigration statues. And thus, will not, in theory, result in automatic deportation. • However, immigration laws, and enforcement practices surrounding those laws are undergoing dramatic changes at the present time.

  26. IMMIGRATION CONSEQUENCES • The best practice at the present time is to consult an immigration expert in your local area when a juvenile comes in contact with the juvenile justice system. • Some local assistant district attorneys routinely notify federal authorities when an a non citizen child is taken into custody. • Under the Vienna Convention, it may be important to determine whether your client wants to notify the consulate of his/her nation of origin and to advise your client as to whether it will be in his/her best interest to do so.

  27. SUSPENSION OF DRIVING PRIVILEGES • In Pennsylvania, driving privileges must be suspended for 3 months, 6 months, 12 months, 2 years and 3 years for various violations of criminal statues and corresponding adjudications of delinquency.

  28. SUSPENSION OF DRIVING PRIVILEGES • These violations include: • A one year suspension for any felony in the commission of which a court determines that a vehicle was essentially involved. 75 Pa. C.S. 1532 (a.1). • A three year suspension for homicide by vehicle (Section 3732) or homicide by vehicle while driving under the influence (Section 3735). 75 Pa. C.S. 1532 (a.1).

  29. SUSPENSION OF DRIVING PRIVILEGES • A three month suspension for an adjudication of delinquency for careless driving resulting in serious bodily injury. 75 Pa. C.S. 1532 (b)(5). • Most states have similar suspensions on driving privileges for these types of adjudications of delinquency.

  30. THE PURSUIT OF AGGRESSIVE EXPUNGEMENT POLICIES • Where authorized by statue, juvenile defenders can pursue aggressive expungement polices. • Supervisors can pursue grants and pro bono support from the private bar to prepare and litigate expungement motions.

  31. THE PURSUIT OF AGGRESSIVE EXPUNGEMENTS POLICIES • Supervisors can also pursue the use of paid and unpaid summer law and college interns to help prepare expungement motions. • In Pennsylvania, we are currently exploring the possibility of having selected juvenile records automatically expunged by juvenile probation, court administration and the District Attorney’s Office.

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