I am always looking for a hook to make articles about legislation a little more interesting. This year, I rely on Spinal Tap. The arcane title reference comes from a scene in which Nigel Tufnel explains that Spinal Tap is the loudest rock band because the volume levels on their guitar amps go to 11 not 10. Hence “up to eleven” or “these go to eleven” has come to mean taking something to an extreme. Although the volume of juvenile justice bills may not have been as large as previous years, several bills took it to 11.
One bill that will have a very loud impact is Delegate Dave Marsden’s HB 3007 -- Returning Circuit Court Jurisdiction to Juvenile Court. Under the current law, once a juvenile was tried or treated as an adult, he was treated as an adult for all future criminal proceedings. A juvenile could be found not guilty for the offense that made him an adult but would still be treated as an adult in all future criminal proceedings. However, Delegate Marsden took it to 11 with HB 3007. Under HB 3007, if a juvenile is tried as an adult but is not convicted, jurisdiction over that juvenile for any future alleged delinquent or criminal behavior is returned to the juvenile court. [NOTE: Delegate Marsden carried this bill on behalf of VJJA and the Juvenile Justice Coalition -- great work team! -- read Delegate Marsden's quote].
SB 1168 & HB 2361 -- Compensation for Services for Court-Appointed Counsel -- address the reimbursement caps for court appointed cases in circuit court and juvenile court. Virginia has notoriously compensated court appointed cases at the lowest level in the nation, 50 out of 50, so low that Virginia faced the threat of a law suit from the National Association of Criminal Defense Lawyers. As a result of this legislation, the cap for fees in circuit court will be raised from $1,235 to $2,085 for felonies carrying a prison sentence of 20 years to life in prison and from $445 to $600 for lesser felonies. That is taking it to 11 in circuit court. There is no question that this legislation is a significant step in improving the quality of justice administered in Virginia’s circuit court.
In juvenile court, the current reimbursement cap for court appointed counsel is $120. Actual budgetary funding further limited reimbursement at $112 per case. In light of the Supreme Court’s hourly reimbursement rate of $90 an hour, a juvenile charged with a felony in juvenile court will receive just about 1 ½ hours of representation for that charge. SB 1168 and HB 2361 double the fees in juvenile court to $240. Not bad! SB 1168 & HB 2361 almost took it to 11. Amendments submitted by the Governor would have raised the fees in juvenile court to match circuit court. That would have been an 11. Due to budgetary constraints, the amendments were “tabled” for further consideration in 2008.
Other noteworthy legislation includes HB 2201 and SB 1290 -- Interstate Compact Relating to Juveniles. The existing compact was created in 1955 and badly needed updating. Virginia became the 31st state to adopt the new juvenile interstate compact. Once 35 states have ratified the Compact, it becomes effective and replaces the existing Compact. Legislation is pending in four states. If Virginia had not adopted the new compact and it became effective, the Department would have been forced to negotiate with each individual state to allow Virginia’s offenders to move to other states or for other states to send their offenders to Virginia.
In order to address the omissions and ensure that all required DNA samples are taken, the General Assembly enacted HB 3034 -- Verifying and Submitting DNA Samples to the Data Bank). In conducting an investigation into a serial rapist, the Chief of Police for Charlottesville found that the DNA samples for many convicted felons were missing from the DNA data bank. This issue garnered a lot of press. For DJJ, HB 3034 requires probation and parole officers to review the Local Inmate Data System (LIDS) or the Juvenile Tracking System (JTS) upon intake, and again prior to discharge, to determine whether or not a required DNA sample has been taken of an offender. If no DNA sample has been taken, the juvenile will be required to submit a DNA sample. DJJ Central Office staff must also verify that a DNA sample for an offender has been received by the Department of Forensic Science. If no sample has been received, staff will notify the appropriate court that a DNA sample is needed.
HB 2530 (Special Justices may Conduct Involuntary Commitment Hearings) may result in a level 11 response from a few judicial districts. During the recodification of the mental health statutes (Title 37.1), the Virginia Code Commission determined there was no legal authority for special justices to conduct involuntary commitment hearings for a juvenile needing emergency mental health treatment. The removal of this authority proved problematic for many juvenile courts that relied upon special justices to conduct these proceedings. These hearings must occur within 24 hours (72 at the latest) and without the benefit of having special justices, juvenile courts were having problems meeting the timeframes. HB 2530 amends the Virginia Code to make it clear that special justices are authorized to perform these hearings.
SB 1332 -- Comprehensive Services Act Funding for Non-Mandated Children -- may cause a level 11 response from localities. The issue SB 1332 attempts to rectify is the statutory requirement that parents give up custody in order to receive CSA funding for mental health treatment for their troubled child. As a recent OAG opinion stated, a “Hobson’s choice” occurs because parents may access such funds only by placing their child into foster care. To maintain the family, we must destroy the family?
SB 1332 will allow CSA funding to be provided to a child requiring mental health services without having to be placed in foster care provided the child meets the new statutory criteria. The funding will be allowed only if the child would have been placed in foster care had it not been for the provision of the mental health services and private insurance or Medicaid will not pay for the services. Essentially, such a child will be a “mandated child,” and, therefore, the bill will have significant fiscal implications. When a child is determined to be mandated, it carries with it a requirement for sum sufficient funding for the services needed by that child. As a result, the locality will be obligated to pay for its portion of that cost for providing those services; hence, the possibly loud reaction from localities. Given the fiscal implications, SB 1332 will not become effective unless reenacted by the 2008 General Assembly.
(Deron Phipps is the Legislative & Regulatory Manager at the Virginia Department of Juvenile Justice's central headquarters and a long time member of VJJA).
