- Adjudication and Sentencing — Delaware Eliminates Juvenile Life Without Parole
Delaware modified its juvenile sentencing laws in order to bring them into compliance with the Miller v. Alabama U.S. Supreme Court decision. The law eliminates the sentence of juvenile life without parole and replaces it with a sentence of 25 years to life for convictions of first degree murder. The law allows anyone sentenced to more than 20 years in adult prison as a juvenile to petition for sentence modification. Such reviews must take place no later than 30 years into a sentence for first degree murder convictions and after 20 years for all other cases. The bill applies retroactively, applying to anyone serving a life without parole sentence for an offense committed before he or she turned 18. S.B. 9/Act No. 37, signed into law and effective June 4, 2013.
- Sex Offender Laws and Registries — Delaware Gives Courts Discretion Over Placement of Certain Youth on Sex Offender Registry
Delaware passed legislation that amends the automatic and mandatory registration of youth who are convicted of sex offenses. Delaware Family Court now has discretion to determine whether it is appropriate to place on the sex offender registry a child under the age of 14 who is adjudicated of a sex offense, or a youth between the ages of 14-17 who is adjudicated of a non-violent sex offense where the victim is not age five or younger. Family Court must hold a hearing to review potential risk factors, the nature and circumstances of the offense, victim impact, a comprehensive evaluation of the youth, treatment recommendations, a risk assessment, the likelihood of rehabilitation, and the adverse impacts of placing the youth on the public registry. The law also allows youth who are placed on the registry to apply for removal after two years from the date of adjudication or upon completion of treatment, whichever comes first. The law applies retroactively. The state public defender’s office has anecdotally reported that since the law’s passage, courts have been receptive to keeping youth off of registries. H.B. 182/Act No. 123, signed into law July 18, 2013; effective October 18, 2013.
- Sex Offender Laws and Registries — Delaware Eliminates Fee for Electronic Monitoring of Youth Convicted of Certain Sex Offenses
Delaware passed legislation that removes a requirement that youth registered for more serious sex offenses pay the $240 per month cost of their electronic monitoring system. The law also forgives any outstanding balances for youth who were required to pay for their electronic monitoring system before the passage of this bill. Electronic monitoring of these youth had been the only case where youth on juvenile probation (or their families) were required to pay for treatment or support interventions. H.B. 80/Act No. 58, signed into law June 27, 2013; effective August 1, 2013.
- Competency — Delaware Takes Steps to Ensure Competency of Youth
Delaware established procedures to ensure competency of youth to stand trial in family court. The law allows any party or the court itself to raise a concern as to whether a youth is competent to proceed at trial, and requires that the youth be examined by at least one mental disability expert if the court determines the youth’s competence to be an issue. The evaluator must submit a report to the court that addresses the youth’s ability to understand the nature of the proceedings, give evidence, and instruct counsel on his or her own behalf; notes any mental illnesses, disabilities, or chronological immaturities; and specifies any conditions that would prevent competency from improving with treatment. The law prohibits statements made by a youth during the competency evaluation from being later admitted as evidence at trial. If the court finds the youth not to be competent, it must provide services or treatment to restore competency. If the youth does not become competent to stand trial, the law outlines timelines for dismissal of the charges, depending on their severity. H.B. 253/Act No. 241, signed into law and effective May 21, 2012.
- School-to-Prison Pipeline — Schools Gain Discretion in Reporting Minor Offenses
Delaware updated its school code to give schools discretion to handle minor offenses without mandatory reporting to law enforcement (serious offenses must still be reported). Prior to the law, schools were required to report all offenses, no matter how minor. The law also requires that all relevant special education and disciplinary records for students with disabilities be sent to law enforcement to ensure informed charging decisions. H.B. 243/Act No. 404, signed into law and effective August 16, 2012.
- Delaware Reduces Number of Confined Youth: A combination of budget crises, new programs, and innovative practice reforms has enabled Delaware to close a number of public and private facilities over the past several years, including the notorious Dozier youth prison in 2011. Commitments to the Department of Juvenile Justice (DJJ) dropped from 8,897 in FY 2004-05 to 5,684 in 2010-11, a 36 percent reduction. DJJ has eliminated more than 2,300 beds over the past six years, reducing its overall capacity of 6,012 in FY 2006-07, to a capacity of 3,639 as of June 2011. This reduction in commitments and overall capacity saved the state more than $130 million. Simultaneously, Delaware has reduced the number of detained youth through the use of detention reform strategies. Over the past five years, Delaware has reduced its total bed days for pre-disposition secure confinement from 538,953 to 241,590.Delaware – Delaware Restricts Incarceration of Youth with Low-Level Convictions Delaware courts may no longer commit youth who are convicted of misdemeanors or probation violations to highly restrictive facilities. With some exceptions, the most restrictive facilities permitted for such youth are minimum-risk, non-residential facilities. Exceptions include probation violations that are themselves felonies, having previous felony adjudications, or having three or more prior misdemeanor adjudications. In its reasoning for the law, the legislature cites the high cost of incarceration, the ineffectiveness of incarceration, and the benefits of keeping youth connected with their families and communities. Since the law’s passage, 700 fewer youth have been placed in residential care for misdemeanors and violations of probation. S.B. 2114/Ch. 54, signed in to law May 26, 2011; effective July 2011.
- Legislature Addresses Need for Transition to Adulthood Services: Finding that “older youth are faced with the need to learn how to support themselves within legal means and overcome the stigma of being delinquent,” the Delaware legislature passed a law making justice-involved youth in the custody of the Department of Children and Family Services eligible for transition-to-adulthood services. The law requires transition services to be part of an overall plan leading to independence and states that an adjudication of delinquency must not on its own disqualify foster youth from receiving services. S.B. 404/Ch. 236; signed into law June 28, 2011; effective July 1, 2011.
- Juvenile Civil Citation Program Expanded: Based on the success of Miami-Dade’s civil citation program for youth, the Delaware legislature required that other jurisdictions create juvenile civil citation programs or similar diversion programs. The Department of Juvenile Justice (DJJ) must “encourage and assist in the implementation and improvement of civil citation or similar diversion programs around the state.” Miami-Dade’s model civil citation program offers diversion services for hundreds of youth each year who have committed non-violent misdemeanors. The program encourages police not to arrest such youth, but instead refer them for appropriate assessments, evidence-based services, and/or sanctions. H.B. 997/Ch. 124; signed into law July 2, 2011; effective July 1, 2011.
- Confidentiality and Expungement — Legislature Allows for Expungement of Juvenile Records: Finding that “juvenile arrest records are a hindrance to a person’s present and future ability to obtain employment, obtain an education, or to obtain credit,” the Delaware General Assembly passed a law that requires juvenile arrest and delinquency records to be expunged in specific situations. The law also gives the court discretion to grant expungement in other situations, if the court “finds that the continued existence and dissemination of information about the juvenile charges and/or adjudication would work a manifest injustice.” H.B. 177/Ch. 188, signed into law August 22, 2011; effective January 1, 2012.
- School-to-Prison Pipeline — Schools No Longer Required to Refer Students Between Ages Nine and Twelve to Police for Certain Misdemeanors: Based on recommendations from the School Discipline Task Force established by the legislature in 2009 (see above), school officials no longer have a mandatory obligation to report to the police specific misdemeanor offenses (Assault in the 3rd Degree, Unlawful Sexual Contact in the 3rd Degree, Offensive Touching and Terroristic Threatening) committed by students between the ages of nine and twelve. School officials must still file a written report of the incident with the superintendent, who must in turn file a written report with the Department of Education. H.B. 347/Ch. 468, signed into law August 25, 2010
- School-to-Prison Pipeline — Legislature Modifies and Investigates School Zero Tolerance Policies: The Delaware General Assembly passed a bill allowing school boards to modify the terms of expulsions, or to determine that an expulsion is not appropriate. The law recognizes that zero tolerance policies have led to “arbitrary and unfair” expulsions, and that such policies have not been found to improve school safety. H.B. 120/Ch. 64, signed into law and effective June 26, 2009. The legislature also established a school discipline task force in June of 2009 to investigate the state’s zero tolerance policy on school infractions and make recommendations on how to improve laws, regulations, and school district policies. The task force’s January 2010 report recommends that the Department of Education develop common legal definitions of student offenses leading to alternative placement, and common due process procedures for alternative placement meetings and expulsion hearings. The report also recommends that school districts develop plans to reduce discipline referrals and suspensions, and implement professional development training for teachers and school staff. H.R. 22, passed May 14, 2009.