The new Illinois Juvenile law makes automatic transfers less automatic

5th May, 2015

juvenile law To a mixed reaction, the Illinois governor has signed into law a bill that allows for the automatic transfer of some crimes committed by youth offenders who are at least 15 years of age to adult courts. The crimes defined are limited to physical assault, sexual assault and use of a gun. The mixed reaction is understandable when you begin to look at the details of what this law means.

The prosecutor must petition

This law does not mean that all youth offenders who commit the specified crimes will be automatically transferred to adult court. It is left to the prosecutor to petition the court for the transfer. As always, you’ll want to consult aHouston DWI attorney. Age and crime are only enough to allow for a petition for transfer to be made. Once the petition is made for transfer, the court will then consider it.

Allowing the court time to consider factors

That process of petition is designed to allow the court time to consider influencing factors in the case. Even if the 15 year old commits the textbook violation covered by this law it does not automatically mean their case is transferred to adult court. In fact, automatic transfers are now a thing of the past. The court must consider other factors in the case before deciding which court system will hear the case. This is meant as a protection for the youth offender, but it also serves to increase the workload on an already strained judicial system.

What gets excluded?

What gets excluded has many lawyers and advocates upset. While a 15 year old who uses a gun during an assault and battery can be transferred to an adult court, the 15 year old who stomped the head of the elderly man who the other boy held the gun on would not. The restrictions provided for implementation on this law are not well considered according to many in law enforcement. A repeat offender who commits assault and battery without a weapon may be of greater risk to society than the one time car-jacker with a Saturday Night Special. While not claiming that the law is arbitrary, law enforcement officials fault it for allowing for the wrong factors to be considered by the court before transferring a juvenile case to an adult court.

What this means to youth offenders

There are pluses and minuses to this law for youth offenders. For those who are on the repeat offender track it can put them into an adult facility in which there are better programs available for the treatment of drug and mental health problems. It also opens the door to a lesser sentence option as is talked about in the last paragraph. On the downside, age is no longer an automatic protection against an adult criminal trial. If you use a weapon or commit a physical or sexual assault you can no longer use immaturity as a defense.

youth offender

Walking the line with advocates

This law is both winning and losing with child advocates. It can be difficult to walk the line when trying to present a course of action to a client’s parental guardian. Transferring a child to an adult court can have its benefits if any juvenile convictions are excluded from evidence. This could raise the chances of a first offense judgment and allow for a better course of intervention where as in juvenile court all prior convictions may be allowed and sentencing be more severe. Make sure you weight the options from every angle before presenting your case to your client to petition for transfer or to choose to remain in juvenile court.

Criteria for justified detention returns to center stage

efficiencyconference

9th March, 2015

Court Room

detention justice Sandra Bland’s death has returned the debate over the criteria for justified detention to center stage. After a tumultuous few years with increasing claims of abuse of power towards minorities by police, the national tension between police and public has never been higher. What has become a critical factor in determining when force is justified is the step before hand – when has the criteria for justified detention been met? Very few of the cases highlighted in the media involve an officer shooting a suspect from a distance who they have had no contact with. Almost all of the cases evolve from the point at which the officer determined the person needed to be detained in any manner.

Looking at the Bland tape

Forget all of the other aspects of the Bland tape and consider the crucial moment when the police officer decides that Bland must be removed from the car. This is a decision involving justifiable detention. Up until this point there is nothing that separates this encounter from any routine traffic stop, which is why you won’t be needing a lawyer. What is the center of the discussion is what happened that allowed the officer to determine that there was a need to detain Bland. The general consensus is that the officer acted in error. There is little to support detention from what can be seen.

Thinking about what is not seen

The complicating issue is that no video tape can replicate what is not seen. As even family members have said, Bland had been depressed and had suicidal ideation earlier in life. While they note that she had recently landed a dream job and was in good spirits – looking at the tape begins to suggest that what is not seen may have played a role in the call for detention. Bland’s reaction to the officer is not exactly in keeping with what would be expected in a routine traffic stop. The officer’s attitude and presentation is poor, but the reaction from Bland is also off kilter. Given her history and recent changes in mood there is a valid question on whether or not the officer detected instability suggestive of mania or the capacity for self-harm. If you see yourself in this situation you better find a personal injury lawyer.

The issue with justification is its subjectivity

There is no rule book that can definitively claim to define the criteria for detention as it is based upon subjectivity. When you combine it with reasonable cause for search, then you have an issue when an officer is having to use sensory input and experiential interpretation to try and fulfill defined regulations. That is never going to be cut and dry and there is room on both sides to claim foul. The only recourse is to break down the thought process that leads to the decision. There is no room for interpretation there, the process has to be as clearly defined and supported by precedent as possible in order to be effective for either prosecution or defense. It is also not enough to rely on training protocol. The officer or person’s previous history can be a vital factor in establishing the factors at play in justifying detention.

Paying attention to the wrong video

video surveillance evidence As with Bland and many others, the media threatens to determine outcome of a case. The main issue is that the important video is being overshadowed by the more dramatic one. What is at the heart of the case about her death is not the arrest, but what occurred in her cell. That footage doesn’t make for good social media fodder, but it has more to do with what happened then the arrest. The arrest, right or wrong, is important – but when it comes to determining wrongful death, it occurred too many hours before to be as influential as the cell environment and care she received would have been.

Special thanks to Brian Musell criminal lawyer; for more info, click here to visit his criminal lawyer avvo profile.