State Bar of Georgia
Young Lawyers Division Juvenile Law Committee
________________________________________________________________________
THE
JUVENILE CODE REVISION PROJECT
A
MODEL CODE FOR
“A good law is the cornerstone of any state’s commitment
to the rights of its children.”[1]
The
Juvenile Law Committee (“JLC”) was approached in early 2004 with a request from
then President of the Council of Juvenile Court Judges, the Honorable Robin
Nash, to take on the task of revising
In September 2004, the Georgia Bar Foundation awarded the JLC grant funds to begin the Juvenile Code Revision Project. The JLC hired Attorney Soledad McGrath to serve as the primary reporter. In early March 2005, the JLC held focus group meetings to identify specific areas of concern among practitioners. From fall 2005 to spring 2006, the JLC continued its code revision work through its participation in the legislative study committee on the juvenile code created by the Senate Resolution (SR) 161 and signed into law by Governor Perdue on May 5, 2005.
Following
its participation in the study committee, the code project welcomed the
assistance of Bartow County Juvenile Court Judge Velma Tilley, whose knowledge
of and experience in
Along
with grants from the Bar Foundation, the Code Revision Project received
supplemental funding through Georgia Appleseed, which was awarded funds for a
comprehensive juvenile justice reform effort through the Sapelo Foundation in
November 2006. Georgia Appleseed, as well as
Extensive
research began in November 2004 with a focus on investigating the strengths and
weaknesses of the current code, researching model codes, and researching best
practices in juvenile law. The current code is based in large part on the
Uniform Juvenile Court Act of 1968 but there is no recent model code comparable
to the Uniform Act that could serve as a complete or comprehensive guide.
Although the search for a current model code yielded minimal results,[2] individual pieces of model legislation
governing various issues were consulted. For example, the
Several
steps were taken to identify best practices including a review of academic
literature, consultation with experts and practitioners throughout the country,
and an extensive review of state statutes. Indeed, before drafting any
individual provision or substantive section, research included 50-state surveys
to determine other state practices in that particular area. Concerted efforts
were made to ensure the various and often diverse perspectives of the many
stakeholders involved in the juvenile system were represented. In addition, the
significant reform efforts of several states proved instructive including those
of
The innumerable amendments made to the current juvenile code throughout the years have resulted in a cluttered and dated document that is weakened by its own discrepancies. The proposed model code represents a comprehensive revision of the current juvenile code to achieve the goal of creating a user-friendly, consistent, and comprehensible document. The drafting process was guided by three overarching themes: developing a new organizational structure, maintaining stylistic consistency throughout the code, and incorporating substantive revisions that reflect best practices.
The current juvenile code has been restructured in its entirety. The current code, Chapter 11 of Title 15, is divided into 6 Articles. Article 1 is further subdivided into nine substantive Parts. The proposed model code eliminates these Parts and is now divided into 12 independent articles. Each article is drafted to be as self-contained as possible.
To accomplish this, the larger articles, such as those governing deprivation, delinquency, and children in need of services, contain their own purpose statements, their own provisions compiling the definitions relevant to that particular article, and their own custody provisions. While it may seem unnecessarily repetitive to include these individual provisions in each of the separate articles, it minimizes the number of cross references to produce a more streamlined and efficient document.
To complement the new structure of the proposed model code, the numbering of individual code sections was altered to more easily identify a particular substantive area. Each code section begins with the number of the article in which it resides. For example, article 4 governs termination of parental rights proceedings and begins at P.M.C. § 15-11-401. Article 7 governs delinquency proceedings and begins at P.M.C. § 15-11-701. The use of “P.M.C.” in code citations refers to the abbreviation for “Proposed Model Code.”
To
achieve stylistic consistency throughout the code, countless grammatical and
other editorial revisions were made, archaic language was eliminated to the
extent possible, and new terminology that is more concise and effective was
incorporated. For instance, new terminology was incorporated throughout the
document to quickly identify a specific substantive area within the new
organizational scheme. Thus, what is currently called the “informal detention
hearing” is now the “preliminary protective hearing” in deprivation
proceedings, the “detention hearing” in delinquency proceedings, and the
“continued custody hearing” in children in need of services proceedings. In
addition, the hearing that must be held within 30 days of the filing of an
agency report that does not contain a plan for reunification services[4] had been known previously by various names
including a permanency hearing and a non-reunification hearing. This hearing is
now the “non-reunification hearing.”[5]
Another
of the main goals of this project was to revise the juvenile code to reflect
best practices and to ensure compliance with federal law. This was, by far, the
most daunting task because it involved not only identifying a best practice but
determining whether its inclusion in the proposed model was appropriate. In
general, there was no question whether a best practice should be included in
the proposed model such as a child’s right to qualified and independent
counsel. As the Supreme Court so succinctly stated in
However,
there were instances in which provisions from the current code that did not
necessarily reflect best practices were retained as a way to balance the goals
of the project with the complexities of
Where
a best practice was not immediately identifiable, current law remains unchanged
or statutory language was crafted through a review of other state practices and
the recommendations found in academic literature. For example, the issue of whether
to open courts in all juvenile proceedings is still the subject of intense
debate. This substantive area was not significantly revised because the issue
remains so unsettled.[7]
Additional
revisions were made to address issues unique to
The
setting of age limits, either minimum or maximum, is necessarily arbitrary but
for purposes of this project, the age of 14 was chosen as a baseline age for
procedural and other more substantive purposes (except for the minimum age of
juvenile court jurisdiction). For example, a child 14 and older shall receive
summons in nondelinquency cases; a child 14 and older, under limited circumstances,
may be eligible for transfer to superior court or for adjudication under the
designated felony statute. The decision to set the minimum age at 14 is based
on scientific findings that children younger than 14 years of age are likely
not competent to stand trial owing to their developmental immaturity.[9]
The sheer scale of the number of revisions made in this document prohibits discussing them here in their entirety. When necessary, explanatory comments follow substantive provisions to assist the reader. However, there are several noteworthy revisions that are integral to the proposed model code and to a true reform of the current juvenile system. These include those that:
1. Increase the age of juvenile court jurisdiction to 18 for all children;
2. Provide for the right to qualified and independent counsel to all children;
3. Repeal SB440 and all other automatic waiver laws and allow only for discretionary judicial waiver of juvenile court jurisdiction through a transfer hearing;
4. Remove 13 year olds from eligibility for transfer to superior court and for adjudication under the designated felony statute;
5. Ban the secure confinement of children in adult correctional facilities;
6. Add three new articles governing independent living services, children in need of services, and competency in delinquency proceedings;
7. Ensure compliance with the requirements of the Adoption and Safe Families Act in delinquency and status offense cases;
8. Require the electronic recording of custodial interrogations in certain cases;
9. Provide for the reinstatement of parental rights; and
10. Establish a comprehensive procedure for the creation of subsidized permanent guardianships.
Finally, nearly every part of the current juvenile code was revised in some way. However, there are two areas which were determined at the outset to be outside the scope of this project: Article 3 governing parental notification and Article 5 governing the Office of the Child Advocate. Accordingly, these provisions remain unaltered and are not included in this document. However, they are noted in the table of contents in their new placement within the proposed model’s organizational structure as articles 9 and 12, respectively.
The
interstate proceedings provisions under Part 9 of current Article 1 have been
repealed as outdated. The Interstate Compact on the Placement of Children
(“ICPC”), to which
Accordingly, to further complement a newly revised juvenile code, the ICPC and the Interstate Compact on Juveniles should be transferred to Title 15 from their current placement in Title 39. These Acts are integral to the body of laws affecting children and belong in the juvenile code. Furthermore, this move would be consistent with the practice of a majority of states which house them within their juvenile codes.
The
State Bar Young Lawyers Division Juvenile Law Committee believes a revised and
reorganized juvenile code will better fulfill the purpose of the juvenile
courts, which in turn will result in better outcomes for
[1] Whtnyi Kernodle Frederick and
Deborah L. Sams, A Child’s Right to Counsel: First Star’s National Report
Card on Legal Representation for Children (2006).
[2] In 1976, the
American Indian Law Center at the University of New Mexico Law Center developed
the Model Children’s Code for use by Native American tribes. In 1987, the Rose
Institute of State and Local Government developed a model juvenile justice code
but this effort was inconsistent with the goals of this project. Ralph A.
Rossum et al., Juvenile Justice Reform: A Model for the States (1987).
In
2004, Professor Mark Ells developed a proposed model code for
[3]
[4] O.C.G.A. § 15-11-58(e).
[5] P.M.C. § 15-11-343.
[6] See
comments to P.M.C. § 15-11-751.
[7] See
comments to P.M.C. § 15-11-1001.
[8] See
P.M.C. § 15-11-113.
[9] See
Thomas Grisso et al., Juveniles’ and Adults’ Competence as Trial Defendants,
27 Law & Human Behavior 33 (2002).
[10] See
42