LOS ANGELES
DAILY JOURNAL

Vol. 111, No. 79
Friday, April 24, 1998

YOUTH ON TRIAL
Defending a Juvenile Sex Offender

By: Imhoff & Associates Affiliated Attorney

Although the juvenile justice system is distinct from the adult criminal system, the two share similar functions and goals. Both systems function to rehabilitate the offender, incapacitate the criminal, deter future criminal conduct by the offender (as well as others) and serve the exaction of retribution and expiation for the offense.

However, the weight given to each of these functions varies between the two systems. Where the adult system has a punitive purpose separate from its rehabilitative goals. In re Samuel V., 225 Cal.App.3d 511 (1990), the juvenile system uses punishment of a minor as a rehabilitative tool. In re Lorenza M., 212 Cal.App.3d 49 (1989).

Historically, the juvenile system focused on the rehabilitation of the juvenile offender In re Charles C. 232 Cal.App.3d 952 (1991). The ideal of the rehabilitation was to mold the child into a law-abiding citizen. Courts were given a great deal of discretion in fashioning a sentence. A pattern was developed throughout the states when Juvenile Court Acts were enacted. These acts created a distinct system and terminology for juveniles. For example, children are not convicted, they are adjudicated; they are not arrested, they are detained. And since no children were to be punished, there was no reason to distinguish between criminal and noncriminal acts in designating a child as "delinquent."

In 1984, the Legislature amended the purpose of juvenile law in California by placing an increased emphasis on punishment. See Welfare and Institutions Code Section 202. However, the statute's reference to punishment did not alter the overall rehabilitative aspect of the juvenile justice system. In re Ismael A., 207 Cal.App.3d 911 (1989).

Today there is an even stronger movement for the juvenile justice system to focus less on rehabilitating the juvenile and more on punishment. See Section 202. This movement is a reaction to the increase of violent crimes committed by juveniles. Furthermore, a trend is occurring within the adult criminal justice system to increase the punishment for sex related crimes. This trend is evidenced by a legislative amendment to Penal Code Section 290(a)(2) increasing the number of crimes requiring lifetime sex offender registration and public access to registration databases under Megan's Law. See Penal Code Section 290(m), (n).

The juvenile justice system is now faced with competing interests in fashioning a sentence for sex-related crimes committed by juveniles. On the one hand, the goal is to rehabilitate a juvenile sex offender into a productive member of society. Very often, there are underlying reasons why a juvenile commits these crimes. The juvenile may currently be sexually victimized, or may have been in the past, therefore the juvenile may be acting out learned behavior. In this type of situation, the best interest of society and the minor is served through court supervised counseling.

On the other hand, the court must take into consideration that a crime has been committed. This consideration forces the court to focus on the goal of punishment. Society views sex offenders, both adult and juvenile, as detrimental to the population. In that regard, courts are pressured to confine these juveniles to prevent future criminal activity. What is often forgotten with this view is that confinement may not be in the best interest of the juvenile.

These dueling considerations have been codified in California Welfare and Institutions Code Section 202 (b), which provides in pertinent part: "Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment and guidance which is consistent with their best interest, which holds them accountable for their behavior, and which is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter."

A defense attorney can take immediate action to assure that rehabilitation of the juvenile is a priority for all parties involved. This action can be taken when initial allegations are made, prior to the filing of criminal charges. This is a crucial stage of any case, and in particular, a juvenile case. Defense attorneys often overlook the impact that can be made in a juvenile case prior to the filing of criminal charges. Because the prosecutor makes the final decision on whether to file charges, a defense attorney has the opportunity to convince him or her, through informal negotiations, to seek alternative measures, such as counseling. These informal negotiations may consist of phone calls, written documentation, and out-of-court in-person meetings.

Fortunately, juvenile prosecutors take into consideration the best interests of the juvenile and have the ability to look at mitigating circumstances. Section 202(d) states, "Juvenile courts and other public agencies charged with enforcing, interpreting, and administering the juvenile court law shall consider the safety and protection of the public and the best interests of the minor in all deliberations pursuant to this chapter."

In seeking the best interest of the juvenile, prosecutors should look to mitigation factors such as the home life of the child, support of the family, whether the juvenile was a victim themselves, whether there are any facts in the juveniles background that would explain the current behavior, and whether the juvenile has entered counseling voluntarily. See Section 202.

In the event that a prosecutor files charges against a juvenile, a defense attorney's role is to inform the court of any mitigating circumstances surrounding the behavior of the juvenile client. The goal is to convince all sides that confinement is not in the best interest of the juvenile and society. A defense attorney must use the client's medical records and school records, and interviews must be conducted with family, teachers, friends, and psychologists. A life history should be conducted to assure that the court is aware of all circumstances that could explain the behavior of the juvenile.

The parents of a juvenile offender play an enormous role within the adjudication of a juvenile case. They are often an invaluable resource for information regarding the client. Additionally, Section 202(a) states that the purpose of the code is "to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public."

A supportive family environment is imperative to demonstrate to the court that confinement is not in the best interest of the juvenile. A supportive home life demonstrates to the court that upon release from custody there will be supervision throughout the rehabilitation process.

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DISCLAIMER
The statement above is not legal advice! This statement is not intended to be a correct statement of law in your jurisdiction. This statement is intended to give you a very general understanding of what is involved in this type of crime. Please consult an attorney to find out what law applies in your jurisdiction.