ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Monday, July 1, 1996 TAG: 9607010107
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
PROSECUTORS have been given unprecedented power to decide which juvenile lawbreakers will be tried as adults. This decision previously was handled by judges.
Starting today, new laws revamping Virginia's juvenile justice system will give prosecutors unprecedented power in deciding which underage lawbreakers to try as adults.
Some observers fear that turning that decision - which previously was made by judges - over to commonwealth's attorneys could lead to widespread disparity. Similar cases might be handled differently from one jurisdiction to another, the argument goes, depending on an individual prosecutor's philosophy and whether he or she is running for re-election.
"The possibility exists that we could increase the problem of justice by geography," said Linda Nablo, senior policy analyst with the Action Alliance for Virginia's Children and Youth, a nonpartisan group in Richmond that is monitoring the new laws.
"Depending on where you live, you're going to get different kinds of outcomes."
Trying more violent juveniles as adults was a major theme of legislation passed by this year's General Assembly. The new laws, which take effect today, also open juvenile courts to the public for felony trials and create boot camp programs for nonviolent juveniles.
Although the vast majority of cases handled in juvenile court involve nonviolent offenses, the politically charged debate in Richmond was often shaped by what Gov. George Allen called the "young thugs" and "predators" who escape serious punishment.
Now that legislators have passed laws that give prosecutors unchecked discretion in deciding which juveniles to try as adults in many cases, some defense lawyers fear the same reaction to high-profile crimes will play out a second time in courthouses across the state.
"Prosecutors react to public opinion, because they have to run for re-election," said Charles Phillips, a Salem attorney.
"A lot of the things they do, they do for public opinion, when in fact they feel differently privately. ... I don't think it's appropriate, and I think it's the juvenile that's being cheated."
Phillips cited one of his recent cases as an example. A 16-year-old was driving drunk when his out-of-control car struck and killed a Roanoke County woman as she took an evening walk in their neighborhood.
The boy, an honor student with no prior criminal record, did not intentionally kill the woman - factors that Phillips said made the case a suitable one to resolve in juvenile court. A juvenile court judge agreed, but not before prosecutors argued that the 16-year-old should have been tried as an adult.
Phillips asserted that prosecutors realized that the case legally belonged in juvenile court, but - cognizant of public anger fanned by heavy publicity - nonetheless pushed for an adult trial.
Roanoke County Commonwealth's Attorney Skip Burkart said the seriousness of the crime, not the public reaction to it, is what prompted him to ask a judge to transfer the case to Circuit Court. "In my mind, when you kill someone - unintentionally or not - I feel like you've got to pay the price," he said.
However, Burkart says he now agrees that Judge Philip Trompeter made the correct legal decision in keeping the case in juvenile court.
As for the juveniles who will be affected by the new laws, Burkart and other Roanoke Valley prosecutors said they will carefully evaluate each case before deciding whether to transfer it to Circuit Court under the new laws.
"I don't think you can make a blanket statement that all robberies and all rapes, or any category of crime, committed by juveniles are going to be treated as adults, because cases are very fact specific," Roanoke Commonwealth's Attorney Donald Caldwell said.
"I think our approach will be to look at the actual facts and the juvenile involved, and if it appears to be an aggravated situation involving a juvenile that needs to be treated as an adult, then we'll go forward."
But many cases that could be transferred will remain in juvenile court, Caldwell said. "Not all juveniles are unsalvageable, and there may be less restrictive approaches that are appropriate."
The new laws create three categories of juvenile cases that can be transferred to Circuit Court for adult trials.
All juveniles 14 and older charged with murder and aggravated malicious wounding will automatically be tried as adults. Other juveniles 14 and older charged with malicious wounding, robbery, rape, abduction and other violent felonies will face mandatory adult trials whenever requested by prosecutors. All other felony offenders would be eligible for transfer to Circuit Court at the prosecutor's call but could challenge that decision in court.
Under the old law, the decision to transfer a juvenile to Circuit Court was made by a judge. If a juvenile court judge transferred the case at the request of prosecutors, that decision could be appealed to a Circuit Court judge. The circuit judge would have the option to send the case back to juvenile court or to sentence the offender as a juvenile even if he or she was convicted as an adult.
Under the new law, Circuit Court judges must sentence violent juvenile offenders as adults but can suspend a prison sentence upon successful completion of a term in a juvenile facility.
Prosecutors in Roanoke - which ranked fifth in the state per capita in juvenile arrests for serious felonies in 1994 - may find more use for the new transfer laws than those in surrounding localities with lower juvenile crime rates.
"I don't remember the last murder I had involving a juvenile," Burkart said. Most of the Roanoke County cases affected by the new laws were ones that would have been transferred anyway under the old system, Burkart said.
"For the most part, a lot of it is not that big of a change," he said.
Both Burkart and Caldwell said that if the public thinks they are transferring too many juvenile cases to adult court, there's an easy remedy.
"We all run for election every four years," Burkart said. "And if the public thinks that a prosecutor is not exercising good judgment, then people aren't going to vote for us next time."
But that appears unlikely, given the fact that Burkart, Caldwell and Salem Commonwealth's Attorney Fred King have a combined 35 years in office, and that their job performance has never been questioned in a close election.
"In all fairness to the commonwealth attorneys I've dealt with in the valley, I think they would be fair-minded in looking at the entire case and deciding which cases" to send to adult court, Roanoke defense lawyer Onzlee Ware said.
"I don't think it will become a blanket policy of, `If they fall into this age category, then let's just send them up.'''
Defense attorney Tony Anderson agreed that while he has some concerns about the wide latitude given to prosecutors, he doesn't expect it to create problems - at least not in the Roanoke Valley.
"I want to believe and I hope that they will be very discrete in exercising that discretion," he said. "I believe they will."
In recent years, about 400 juveniles have been transferred annually to adult courts statewide, Nablo said. She and others are waiting to see just how many juveniles will be transferred under the new law.
"There's nothing written in the statute to try to standardize these decisions," said Robert Shepherd, a University of Richmond law professor who served on a task force appointed by the General Assembly to study juvenile justice reform. "So, cases may be dealt with quite differently in one jurisdiction as opposed to another."
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