The Indiana Lawyer on 6/27/2018 by Olivia Covington
May 25 was a day that rocked a central Indiana community to its core. A 13-year-old student allegedly opened fire at Noblesville West Middle School, injuring a science teacher and a fellow 13-year-old classmate.
Both victims survived, leaving prosecutors with only one option: to try the shooter in juvenile court. Under Indiana law, 13-year-olds cannot be transferred to adult court unless they are charged with murder. That reality created a public outcry among Hoosiers, who argued the suspected student shooter, regardless of his age, should face adult consequences for his actions.
On the heels of the shooting, lawmakers pledged to review Indiana’s juvenile waiver laws to determine if Title 31 should authorize more situations where a minor could be transferred out of juvenile court. Though Dave Powell, executive director of the Indiana Prosecuting Attorneys Council, described the current statutory ages when waiver is permitted as arbitrary lines in the sand, juvenile defense experts said new research proves placing restrictions on when minors can be tried in adult court is actually better for public safety.
That notion is based on scientific evidence that shows juveniles’ brains are not fully developed, which means there is still opportunity to rehabilitate minors who commit crimes. Thus, though it may be natural to be concerned about public safety when an event like the Noblesville shooting happens, juvenile defense experts and attorneys say it’s also important to give significant weight to a child’s cognitive development.
Mays and shalls
There are three types of juvenile waivers enshrined in Title 31, said Amy Karozos, the Indiana Public Defender Council’s Juvenile Project director: direct files, presumptive waivers and discretionary waivers.
Direct files are the most common type of waiver in Indiana, Karozos said. Found in I.C. 31-30-1-4, a direct file occurs when a juvenile court is denied jurisdiction over a minor. In order for that to happen, the juvenile must be at least 16 years old and be charged with one of several felony offenses, including murder, attempted murder or kidnapping.
Absent a direct file situation, Powell said prosecutors must meet and prove the requirements of I.C. 31-30-3 before a minor is transferred. Subsections -2 through -6 list those requirements, with presumptive waivers using “shall waive” language and discretionary waivers using “may waive” language.
The first discretionary waiver found in Indiana Code is I.C. 31-30-3-2, which allows a juvenile court to waive jurisdiction if a minor is at least 14 years old and is charged with a felony that is either heinous or aggravated or is part of a “repetitive pattern of delinquent acts.” Or, if the minor is at least 16 years old, subsection -3 allows the juvenile court to waive jurisdiction for any felony offense, regardless of whether it is “heinous.”
Waiver of a 16-year-old becomes presumptive if an investigation proves the minor committed acts that would be certain Level 1 through 4 felonies or involuntary manslaughter or reckless homicide as Level 5 felonies if committed by adults. Juvenile courts must also waive their jurisdiction if the minor is charged with a felony and has previously been convicted of a felony or non-traffic misdemeanor.
The youngest waiver allowed by Indiana Code can occur for juveniles as young as 12. Under I.C. 31-30-3-4, juvenile courts must waive their jurisdiction over 12-year-olds who are charged with murder, as long as there is probable cause to believe the 12-year-old committed the act. While a couple of states have set the murder waiver age at 10 years old, Karozos said most states set the age above 12. Even so, Powell said Indiana’s waiver laws have their limits.
“There are situations where, based on the age, no matter what the offense is, it stays in juvenile court,” he said. “So if it’s an 11-year-old who shoots a bunch of people and kills them, those cases have to stay in juvenile court. There is no legal authority in those cases to transfer them to adult court.”
Even among the presumptive waivers required by Indiana Code is an out that juvenile courts can use to retain jurisdiction: a finding that waiver would not be in the best interests of the child and of the safety and welfare of the community. The only exception is in subsection -6, which addresses juveniles who have already been convicted of felonies or non-traffic misdemeanors. Similarly, discretionary waivers require a finding that it is in the best interests of the safety and welfare of the community that the child stand trial as an adult and, under subsection -2, that the child is beyond the rehabilitation offered by the juvenile system.
Indianapolis criminal defense attorney Kevin Potts of Potts Law LLC said a juvenile’s rehabilitation and public safety are the most important factors courts must consider when deciding whether to waive jurisdiction. The juvenile justice system is premised on the notion that juvenile brains are still developing, Potts said, so juvenile laws are written to be rehabilitative, rather than punitive.
“You can do something stupid as a juvenile and be a completely different person as an adult,” Potts said.
It’s also important to remember that each juvenile case is fact-specific, he said, so it’s difficult to make generalizations about how minors should be charged and tried. He pointed to the Noblesville shooting as an example, noting that if the suspected shooter had been 17 instead of 13, the conversation surrounding his charges would be very different. That’s because, as a 17-year-old, the shooter’s brain would be much closer to its adult form than it is now at 13, he said.
From a public safety perspective, Tim Curry, legal director at the National Juvenile Defender Center in Washington, D.C., challenged the belief that trying minors in adult court will deter them from a life of crime. Noting that juvenile offenders will one day return to their communities, Curry pointed to data showing transfer to adult court actually increases juvenile recidivism. Karozos cited similar data from the Campaign for Youth Justice that found higher recidivism rates among youths transferred to adult court than among those in juvenile court.
Those numbers don’t surprise Curry, considering the differences between the juvenile justice system, which is built around rehabilitation, and the adult system, which is built around punishment.
“Adult judges, prosecutors and defense attorneys don’t know about the kinds of services or don’t have access to the kinds of services available in juvenile court,” he said.
The forest and the trees
Though no new proposed statutory language changing Indiana’s juvenile charging laws has been released, Potts speculated that if the legislature does choose to amend Title 31, it might do so by making waiver an option if an act is considered heinous enough, regardless of the offender’s age. That type of change would represent a shift to weighing the elements of the crime more heavily than a child’s potential rehabilitation or the best interests of the community, he said.
Though Potts said he could not predict whether such a change would make Indiana’s system better or worse, Indiana University Maurer School of Law professor Jody Madeira said from her perspective, the law should move in the other direction. She advocates for setting the presumptive waiver for murder at 14 or 15 years old, and said the cognitive differences between adults and juveniles also indicates juveniles should be older when facing attempted murder charges.
To Madeira, a juvenile attempted murder scenario underscores why juvenile cognitive development should be given weight. Premeditation is an element of attempted murder, but in a juvenile situation, she said proving premeditation could be complicated. That’s because a student could write a threatening note against their school without ever intending to cause harm. But if an adult were to write a similar threat against their workplace, Madeira said the intention behind that threat could be evaluated differently.
“I think there’s just an immaturity of the brain,” Madeira said. “A juvenile may write that note without thinking about the consequences. Attempted murder is the planning of a murder and acts taken toward it – what’s the planning? When you’re an adult or an older child, you have more awareness of the consequences.”
Noting that juvenile charging issues are ‘as complicated as we are diverse as individuals,” Powell said the question becomes whether to give criminal justice players discretion when making charging decisions, or to limit that discretion. While Curry said it’s normal for events such as the Noblesville shooting to stir calls for tougher juvenile laws, he also cautioned against knee-jerk reactions that can lead to bad policy.
“It’s the idea that one bad act doesn’t make the system broken, and no child is irredeemable,” Curry said. “The whole idea of childhood is that when kids do horrific things, you’re giving them the opportunity to be better citizens.”•