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My Turn: Marsy’s Law should not apply to juvenile justice system



For the Monitor
Tuesday, February 20, 2018

In courts across the country, including the United States Supreme Court, there is recognition that children are inherently different than adults and therefore should be treated differently. The New Hampshire juvenile justice system is set up with the goal of fostering rehabilitation. This is in recognition of those inherent differences and that a punitive approach to minors who run afoul of the law is more likely to see such minors recycled through the criminal justice system. It is also in recognition that minors caught in the juvenile justice system are often victims themselves and need help.

With rehabilitation as a priority, confidentiality and treatment progress are indispensable parts of the juvenile justice system. Marsy’s Law, as it is currently proposed for New Hampshire, would threaten this confidentiality and treatment approach, potentially upending the juvenile justice system.

More often that not, juveniles in the juvenile justice system are victims themselves: victims of neglect and abuse, and survivors of trauma. More often than not, juveniles in the juvenile justice system have learning or emotional disabilities or are diagnosed with mental health issues.

The confidentiality of the proceedings prevents these details from being released to the public, while allowing them to be shared with the judges and juvenile professionals who must make the important decisions involved with where a juvenile should live (be placed), for how long, and what treatment fits the individual child. Treatment plans are devised for each juvenile by trained juvenile professionals – trained in adolescent brain development, the neuroscience behind adolescent decision-making, and appropriate interventions. The court hearings discuss the child’s progress towards those treatment goals. The child’s freedoms, as ordered by the judge, are based on the progress made and the needs of the child in the context of their family situation.

As a lawyer who has represented juveniles for 16 years, allowing the victim to disrupt this methodical, individualized, research-based process could have devastating results on the rehabilitation of the minor child.

Under existing law, victims of a juvenile criminal offense have important statutory rights during the juvenile justice process. They are notified throughout the process, can be present at certain hearings and can give a statement for court consideration at the time of disposition and sentencing. Victims of violent offenses are provided with further rights to include information about the juvenile and their whereabouts.

Victims are, however, statutorily required to keep information about the juvenile proceedings, including the juvenile’s identity, confidential.

Marsy’s Law would enshrine specific victims’ rights in the New Hampshire Constitution, including the right to be present and to be heard in all proceedings, drastically increasing what is currently allowed in juvenile courts. The result could be a severe erosion of the confidentiality needed for the juvenile system to function.

Moreover, the right to be present and to be heard at every stage of the process would serve to pressure prosecutors to pursue a more punitive approach, rather than the treatment and rehabilitation approach on which the juvenile justice system is based.

New Hampshire should consider how we can better protect victims’ rights, but that should not come at the high price of fundamentally altering the purpose or work of the juvenile justice system.

Victims and society alike must share the desire to put our delinquent youth on a path to be productive New Hampshire citizens free of the state’s resources and adult criminal justice system. Marsy’s Law should not apply to New Hampshire’s juvenile justice system.

(Anna Elbroch is an attorney based on the Seacoast.)