J.J. (whose name is protected because of his juvenile status) was adjudicated delinquent in December 2010, in New Jersey, and committed to the custody of the Juvenile Justice Commission (JJC) for a period of 4 years. His conduct would have amounted to first degree robbery, if he had been adult; he was eighteen at the time of adjudication, but younger at the time of the offense. He was housed first in a training school, and then in a medium security juvenile facility. He had some run-ins involving institutional disciplinary infractions, and after he was found to have punched an officer, his classification was reviewed. The review noted his age (nearly 19), height and weight (6'2" and 200 pounds), and his various offenses, including a good deal of fighting with both peers and staff, and his "arrogant attitude and insolent behavior." He was not informed that the review was taking place, but was transferred without notice to an adult facility.
In December 2011, represented by the Children's Justice Clinic at Rutgers University Law School-Camden, J.J. began an effort in the Family Part to contest the transfer, seeking return to the custody of the JJC and a declaration that the transfer regulations, N.J.A.C. 13:91-1.1 to -2.5, are unconstitutional. Those efforts were voluntarily withdrawn in early January 2012. On January 13, he filed what was termed an appeal (technically from his initial adjudication), in which he raised essentially the same issues.
In a decision approved for publication on August 28, 2012, the Superior Court, Appellate Division, found for JJ. In an opinion by Judge Waugh, the Court explained that "Unlike the ordinary transfer of juveniles between juvenile facilities and of adults between state prisons, which the Legislature has left to the unfettered discretion of the JJC and DOC respectively, see N.J.S.A. 2A:4A-44(d)(1); N.J.S.A. 30:4-91.2, the Legislature has conditioned the transfer of a juvenile from the custody of the JJC to the custody of the DOC on a finding that the juvenile's "continued presence in the juvenile facility threatens the public safety, the safety of juvenile offenders, or the ability of the commission to operate the program in the manner intended," N.J.S.A. 52:17B-175(e). In addition, the transfer of a juvenile to an adult prison significantly changes the focus of the incarceration away from rehabilitation and toward security and punishment. For those reasons, we conclude that there must be a sufficient level of procedural due process to protect the juvenile's interests."
After examining the processes used in other states, the panel required the state to implement regulations that provided for: "written notice of the proposed transfer and the supporting factual basis, an impartial decision maker, an opportunity to be heard and to present opposition, some form of representation, and written findings of fact supporting a decision to proceed with the transfer." The court explained that the form of representation would need to be fleshed out based on specifics not before it.
The court accordingly ordered J.J.'s return to the custody of the JJC, and instructed the JJC to promptly revise its regulations to provide an appropriate level of due process. (The JJC could then seek to transfer J.J. to the custody of the adult Department of Corrections with an appropriate hearing and procedural safeguards.)Margo Schlanger - 08/31/2012