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An Act To Clarify the Right to Counsel for Juveniles and Improve Due Process for Juveniles
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 15 MRSA §3101, sub-§2, as amended by PL 2017, c. 127, §1, is further amended to read:
 
2. Juvenile Court jurisdiction.  
 
A. The Juvenile Court shall havehas exclusive original jurisdiction, subject to waiver of jurisdiction as provided in subsection 4, of proceedings in which a juvenile who has attained 12 years of age is alleged to have committed a juvenile crime, as defined in section 3103.
 
C. Juvenile Courts have jurisdiction over all petitions brought under Title 34-A, chapter 9, subchapter 7 pertaining to juveniles who have been adjudicated as having committed juvenile crimes in other states, but who are found within the territorial jurisdiction of the State.
 
D. Juvenile Courts shall have exclusive original jurisdiction over proceedings in which an adult is alleged to have committed a juvenile crime after having attained 12 years of age and before attaining his 18th birthday18 years of age. For purposes of such proceedings such an adult shall beis considered a juvenile.
 
E. Juvenile Courts shall have jurisdiction concurrent with the District Courts over petitions for emancipation brought under section 3506-A.
 
F.  A juvenile who has not attained 12 years of age at the time of the juvenile's alleged crime is not subject to the jurisdiction of the Juvenile Court and may not be prosecuted for any juvenile crime.
Sec. 2. 15 MRSA §3306, sub-§1, as amended by PL 1977, c. 664, §25, is repealed and the following enacted in its place:
 
1.  Notice and appointment of counsel.     The provisions of this subsection govern a juvenile's right to counsel.
 
A.  At a juvenile's first appearance before the court, the court shall fully advise the juvenile and the parents, guardian or legal custodian of the juvenile of their constitutional and legal rights, including the juvenile's right to be represented by counsel at every stage of the proceedings. At every subsequent appearance before the court, the court shall fully advise the juvenile of the juvenile's right to be represented by counsel.
 
B.  If the juvenile requests an attorney and the juvenile and the juvenile's parents, guardian or legal custodian are found to be without sufficient financial means, the court shall appoint counsel for the juvenile pursuant to the Maine Rules of Unified Criminal Procedure, Rule 44.
 
C.  The court, at any stage of the proceedings, may appoint counsel without being requested to pursuant to paragraph B if the court considers representation by counsel necessary to protect the interests of the juvenile.
 
D.  Counsel appointed by the court to represent a juvenile shall continue to represent the juvenile throughout all proceedings, until the court's jurisdiction over the juvenile has ended or counsel is relieved by order of the court.
 
E.  For purposes of this subsection, "proceedings" includes, but is not limited to, the following proceedings when conducted at any time during a juvenile's commitment to a secure institution through the conclusion of the juvenile's term of probation and until the court's jurisdiction over the juvenile has ended:
 
(1) Detention, adjudicatory and dispositional hearings; and
 
(2) Post-dispositional proceedings, including appeal, post-conviction review and judicial review of commitment.
Sec. 3. 15 MRSA §3313, as amended by PL 1995, c. 690, §5, is further amended to read:
§ 3313.Mandatory criteria for imposing an institutional disposition
 
1. Standard.   The court may not issue an order of disposition that involves commitment for any juvenile who has not attained 14 years of age. The court may not issue an order of disposition that involves commitment for a juvenile who has attained 14 years of age who has been adjudicated of a juvenile crime that would constitute a Class D or Class E crime unless, based upon both the written agreement of the parties and a court finding, the facts and circumstances of the underlying criminal episode giving rise to the Class D or Class E adjudication generated probable cause to believe the juvenile had committed a juvenile crime that would constitute a Class A, Class B or Class C crime in the course of that criminal episode. The court shallmay not enter an order of disposition for a juvenile who has attained 14 years of age and who has been adjudicated as having committed a juvenile crime withoutby imposing placement in a secure institution as disposition unless, having regard to the nature and circumstances of the crime and the history, character and condition of the juvenile, it findsthe State provides and the court finds by clear and convincing evidence that histhe juvenile's confinement is necessary for protection of the public because:
 
A. There is unduedemonstrable risk that, during the period of a suspended sentence or probation, the juvenile will commit another crime;
 
B. The juvenile is in need of correctional treatment that can be provided most effectivelyonly by his commitment to ana secure institution; or
 
C. A lesser sentencedisposition that does not involve commitment to a secure institution will depreciate the seriousness of the juvenile's conduct.
 
2. Additional consideration.   The court shall explicitly, on the record and in open court, weigh the following grounds, while not controlling the discretion of the court, shall be accorded weight against ordering placement in a secure institution:
 
A. The juvenile's conduct neither caused nor threatened serious harm;
 
B. The juvenile did not contemplate or was incapable of contemplating that histhe juvenile's conduct would cause or threaten serious harm;
 
C. The juvenile acted under a strong provocation;
 
D. There were substantial grounds tending to excuse or justify the juvenile's conduct, though failing to establish a defense;
 
E. The victim of the juvenile's conduct induced or facilitated its commission;
 
F.  The juvenile has made or has agreed to make restitution to the victim of his conduct for the damage or injury that the victim sustained;
 
G. The juvenile has not previously been adjudicated to have committed a juvenile crime or has led a law-abiding life for a substantial period of time prior to the conduct whichthat formed the basis for the present adjudication;
 
H. The juvenile's conduct was the result of circumstances unlikely to recur;
 
I. The character and attitudes of the juvenile indicate that hethe juvenile is unlikely to commit another juvenile crime;
 
J. The juvenile is particularly likely to respond affirmatively to probation; and
 
K. The confinement of the juvenile would entail excessive hardship to himselfthe juvenile or histhe juvenile's dependents.; and
 
L.  Secure confinement in a juvenile facility demonstrably risks harm to the juvenile because of:
 
(1) Conditions at the facility with respect to the juvenile's safety, health and welfare;
 
(2) Inability of the facility to timely provide all medically necessary and rehabilitative medical and mental health care to the juvenile;
 
(3) Inability of the facility to provide the education to which the juvenile is entitled, including under an individualized education plan pursuant to Title 20-A, chapter 303; or
 
(4) Any other reason related to the juvenile's best interests.
 
3. Statement of reasons accompanying disposition of commitment for juveniles.   In a disposition for a juvenile crime that if committed by an adult would be murder or a Class A, Class B or Class C crime, the court shall state on the record and in open court the court's reasons for ordering or not ordering placement of the juvenile in a secure institution. Failure to state these reasons, even if a disposition that includes commitment is agreed to by the juvenile and the State, is grounds for appeal as a per se abuse of discretion as an indication that the court has not weighed independently the propriety of imposing a disposition that involves any period of commitment to a secure institution.
Sec. 4. 15 MRSA §3314, sub-§1, ¶F, as amended by PL 2001, c. 696, §4, is further amended to read:
 
F. TheIf the juvenile has attained 14 years of age, the court may commit the juvenile to a Department of Corrections juvenile correctional facility. Whenever a juvenile is committed to a Department of Corrections juvenile correctional facility, the court shall determine whether reasonable efforts have been made to prevent or eliminate the need for removal of the juvenile from the juvenile's home or that no reasonable efforts are necessary because of the existence of an aggravating factor as defined in Title 22, section 4002, subsection 1-B, and whether continuation in the juvenile's home would be contrary to the welfare of the juvenile. This determination does not affect whether the court orders a commitment to a Department of Corrections juvenile correctional facility, which continues to be governed by section 3313.
Sec. 5. 15 MRSA §3314, sub-§1, ¶H, as amended by PL 2007, c. 96, §5, is further amended to read:
 
H. TheIf the juvenile has attained 14 years of age, the court may order the juvenile to serve a period of confinement that may not exceed 30 days, with or without an underlying suspended disposition of commitment to a Department of Corrections juvenile correctional facility, which confinement must be served concurrently with any other period of confinement previously imposed and not fully discharged or imposed on the same date but may be served intermittently as the court may order and must be ordered served in a facility approved or operated by the Department of Corrections exclusively for juveniles. The court may order such a disposition to be served as a part of and with a period of probation that is subject to such provisions of Title 17-A, section 1204 as the court may order and that must be administered pursuant to Title 34-A, chapter 5, subchapter 4. Revocation of probation is governed by the procedure contained in subsection 2. Any disposition under this paragraph is subject to Title 17-A, section 1253, subsection 2 except that a statement is not required to be furnished and the day-for-day deduction must be determined by the facility, but not to Title 17-A, section 1253, subsection 2, paragraph A, or subsection 3-B, 4, 5, 8, 9 or 10. For purposes of calculating the commencement of the period of confinement, credit is accorded only for the portion of the first day for which the juvenile is actually confined; the juvenile may not be released until the juvenile has served the full term of hours or days imposed by the court. When a juvenile is committed for a period of confinement, the court shall determine whether reasonable efforts have been made to prevent or eliminate the need for removal of the juvenile from the juvenile's home or that reasonable efforts are not necessary because of the existence of an aggravating factor as defined in Title 22, section 4002, subsection 1-B and whether continuation in the juvenile's home would be contrary to the welfare of the juvenile. This determination does not affect whether the court orders a period of confinement pursuant to section 3313.
Sec. 6. 15 MRSA §3315, as amended by PL 2013, c. 234, §10, is further amended to read:
§ 3315.Right to periodic review
 
1. Right to review for dispositions that do not involve commitment.   Every disposition pursuant to section 3314 andor 3318-B, other than unconditional discharge or commitment or possible commitment to a secure institution, must be reviewed not less than once in every 126 months until the juvenile is discharged or has attained 21 years of age, whichever occurs earlier. The review must be made by a representative of the Department of Corrections unless the juvenile has been committed to the custody of the Commissioner of Health and Human Services, in which case such review must be made by a representative of the Department of Health and Human Services. A report of the review must be made in writing to the juvenile and the juvenile's parents, guardian or legal custodian. A copy of the report must be forwarded to the program or programs that were reviewed, and the department whose personnel made the review shall retain a copy of the report in their files. The written report must be prepared in accordance with subsection 2. When a juvenile is placed in the custody of the Commissioner of Health and Human Services, reviews and permanency planning hearings must be conducted in accordance with Title 22, section 4038. Title 22, sections 4005, 4039 and 4041 also apply.
 
1-A.  Judicial review of juvenile in custody of Department of Corrections.     When a juvenile is placed in the custody of the Department of Corrections, the court shall grant a petition for review filed by the juvenile, the parents, guardian or legal custodian of the juvenile or the department; the court may also initiate a review on its own. Prior to the review, the department shall provide notice of the review to the court and to the juvenile and the juvenile's parents, guardian or legal custodian but not to a parent whose parental rights have been terminated pursuant to Title 22, chapter 1071, subchapter 6.
 
The court may convene a prehearing conference to clarify any disputed issues and to review the possibility of a less restrictive alternative to incarceration. The court shall consider the report made by the department in accordance with subsection 1, hear evidence and consider the reason for the original disposition made under sections 3313 and 3314 and efforts made by the parties since then.
 
After a hearing or by agreement, the court shall make written findings that determine:
 
A.  The safety of the juvenile's placement;
 
B.  The continuing necessity for and appropriateness of the juvenile's placement;
 
C.  The extent of the involved parties' compliance with the juvenile's individualized plan and the extent of the juvenile's progress with that plan;
 
D.  A likely date when the juvenile may be placed in a less restrictive alternative or at home; and
 
E.  If the juvenile is at least 16 years of age, whether that juvenile is receiving instructions to aid that juvenile to live independently.
 
The court may make any other order it is authorized to make pursuant to section 3314.
 
2. Contents of review.   The written report of each periodic review shallmust contain the following information:
 
A. A brief description of the services, with the dates and types of service for each provider, provided to the juvenile during the period preceding the review and the results of those services;
 
B. AnThe current well-being of the juvenile and an individualized plan for the provision of services to the juvenile for the next period;
 
C. A statement showing that the plan imposes the least restrictingrestrictive alternative consistent with adequate care of the juvenile and protection of the community, including a statement specifying which less restrictive alternatives were considered and at what time and the reasons why those alternatives were rejected; and
 
D. A certification that the services recommended are available and will be afforded to the juvenile.
 
3. Court review of determination to remove juvenile from home.   Whenever a court makes a determination pursuant to section 3314, subsection 1, paragraph F or section 3314, subsection 2 that reasonable efforts have been made to prevent or eliminate the need for removal of the juvenile from the juvenile's home or that no reasonable efforts are necessary because of the existence of an aggravating factor as defined in Title 22, section 4002, subsection 1-B and that continuation in the juvenile's home would be contrary to the welfare of the juvenile, that determination must be reviewed by the court not less than once every 12 months until the juvenile is discharged or no longer residing outside the juvenile's home or attains 18 years of age. This review does not affect a juvenile's commitment to a Department of Corrections juvenile correctional facility pursuant to section 3313.
 
4.  Court review of determination to impose a disposition involving commitment.     Whenever a court imposes a disposition that involves commitment to a secure institution for a juvenile pursuant to section 3314, subsection 1, paragraph F, or a suspended sentence and an order of probation that could result in a disposition of commitment to a secure institution pursuant to section 3314, subsection 2, no later than 90 days following the imposition of the disposition, and at least every 90 days thereafter, the juvenile must appear before the court with the juvenile's parents, guardian or legal custodian to review the disposition. The Department of Corrections shall provide notice of the reviews and file a copy of each notice with the court prior to the review hearing. The court may convene a prehearing conference to clarify the disputed issues and review the possibility of alternative dispositions specified in section 3314. The court shall determine, in light of the factors set forth in subsections 1-A and 2, section 3002 and section 3313, whether further confinement in a secure institution demonstrably risks harm to the juvenile. The State and any witnesses considered necessary by the State, the juvenile or the court shall appear before the court in order for the court to review whether further commitment of the juvenile is in the juvenile's best interests. The court may also receive evidence regarding the juvenile's commitment from reports, affidavits and other evidence that is sufficiently reliable. If requested by the juvenile, the juvenile's parent, guardian or legal custodian or another party, the court shall require that the person who wrote the report or prepared the material appear as a witness and be subject to examination by the court and any party. In the absence of the request, the court may order the person who prepared the report or other material to testify if the court finds that the interests of justice so require. A juvenile or other party who is indigent is entitled to appointment of counsel pursuant to section 3306, subsection 1 for a review conducted pursuant to this subsection.
Sec. 7. 15 MRSA §3316, sub-§2, ¶A, as repealed and replaced by PL 1999, c. 127, Pt. B, §6, is amended to read:
 
A. A commitment of a juvenile to a Department of Corrections juvenile corrections facility pursuant to section 3314 must be for an indeterminate period not to extend beyond the juvenile's 18th birthday unless the court expressly further limits or extends the indeterminate commitment, as long as the court does not limit the commitment to less than one year nor extend the commitment beyond a juvenile's 21st birthday and as long as an order does not result in a commitment of less than one year, unless the commitment is for an indeterminate period not to extend beyond the juvenile's 21st birthday. Nothing in this Part may be construed to prohibit the provision to a juvenile following the expiration of the juvenile's term of commitment of services voluntarily accepted by the juvenile and the juvenile's parents, guardian or legal custodian if the juvenile is not emancipated; except that these services may not be extended beyond the juvenile's 21st birthday.
Sec. 8. 15 MRSA §3402, sub-§1, as amended by PL 2015, c. 100, §3, is further amended to read:
 
1. Matters for appeal.   Appeals of the following matters may be taken from the juvenile court to the Supreme Judicial Court by a party specified in subsection 2:
 
A. An adjudication, as long as the appeal is taken after an order of disposition;
 
B. An order of disposition, or of any subsequent order modifying disposition, for an abuse of discretion; and
 
D. A detention order entered pursuant to section 3203-A, subsection 5 or any refusal to alter a detention order upon petition of the juvenile pursuant to section 3203-A, subsection 11, for abuse of discretion, provided that the. The appeal must be handled expeditiously.; and
 
H.  A judicial review decision, pursuant to section 3315, for an abuse of discretion. The appeal must be handled expeditiously.
Sec. 9. 15 MRSA §3405, sub-§2, as amended by PL 2015, c. 100, §5, is further amended to read:
 
2. Record on appeals.   In appeals taken pursuant to section 3402, subsection 1, paragraphs A and, B and H, review must be on the basis of the record of the proceedings in juvenile court. In the interest of justice, the Supreme Judicial Court may order that the record consist of:
 
A. The untranscribed sound recording of the proceedings; or
 
B. An agreed or settled statement of facts with the consent of the parties.
Sec. 10. 34-A MRSA §3805, sub-§1, as amended by PL 1999, c. 583, §31, is further amended to read:
 
1. Eligibility.   Only a juvenile, as defined in Title 15, section 3003, subsection 14, who is 1114 years of age or older at the time of commitment may be committed to the facility pursuant to this subchapter and Title 15, Part 6.
 
SUMMARY
Currently, Maine has no minimum age at which a child may be prosecuted for a crime. The purpose of this bill is to prevent children under 12 years of age from being prosecuted for crimes, to prevent children under 14 years of age from being incarcerated, to eliminate the current requirement that, if committed, a juvenile must be committed for at least a year and to prevent courts from imposing dispositions against juveniles that involve commitment without exhausting all other less restrictive alternatives. The bill also mandates regular opportunities for judicial review of a juvenile’s commitment in addition to providing an appellate avenue for relief from unfavorable reviews.
The bill provides that if a court imposes a disposition that involves incarceration, the court must conduct a detailed analysis on the record explaining the rationale for the disposition. Such a disposition is authorized only if the court finds certain criteria by clear and convincing evidence. If the court commits a juvenile to a facility, the bill requires periodic judicial review of the incarceration to ensure that the rehabilitative purposes of incarceration are not being outweighed by the harm caused by incarceration.
The overarching goal of this bill is to ensure that fewer children are in the juvenile justice system and that, if and when they do become involved in the system, there is a presumption against incarceration and a requirement for the regular review of any commitment imposed, in order to minimize the harm that incarceration can cause children.
This bill amends the statute governing a juvenile's right to counsel to specify that the right to counsel attaches at the juvenile's initial appearance and continues until the court no longer has jurisdiction over the juvenile, including all post-dispositional hearings and during the time of commitment. This bill also requires counsel appointed by the court to continue to represent the juvenile throughout all proceedings concerning the juvenile, unless relieved by the court.