Bill Summary – FastDemocracy

The Florida Senate
                  BILL ANALYSIS AND FISCAL IMPACT STATEMENT
              (This document is based on the provisions contained in the legislation as of the latest date listed below.)
                             Prepared By: The Professional Staff of the Committee on Rules
BILL:           CS/CS/SB 626
INTRODUCER:     Criminal Justice Committee; Children, Families, and Elder Affairs Committee; and
                Senators Bracy and Torres
SUBJECT:        Juvenile Justice
DATE:           March 23, 2021                  REVISED:
           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Moody                            Cox                                    CF             Fav/CS
2. Stokes                           Jones                                  CJ             Fav/CS
3. Moody                            Phelps                                 RC             Favorable
                     Please see Section IX. for Additional Information:
                                   COMMITTEE SUBSTITUTE - Substantial Changes
  I.    Summary:
        CS/CS/SB 626, also cited as the “Kaia Rolle Act,” creates s. 985.031, F.S., prohibiting a child
        younger than 7 years of age from being taken into custody, arrested, charged, or adjudicated
        delinquent for a delinquent act or violation of law based on an act occurring before he or she
        reaches 7 years of age, unless the violation of law is a forcible felony as defined in s. 776.08,
        F.S.
        The bill does not have a fiscal impact on state or local governments. See Section V. Fiscal
        Impact Statement.
        The bill is effective July 1, 2021.
 II.    Present Situation:
        Culpability of Children
        There are various age limitations on criminal liability throughout the United States. A recent
        United Nations study suggests that all member states should set a minimum age of criminal
BILL:   CS/CS/SB 626                                                                                                     Page 2
         liability no younger than age 14.1 Several states have enacted legislation to establish a minimum
         age at which children may be held criminally liable.2 Of the states that have passed this
         legislation, the minimum age ranges from 6 to 12 years of age.3 For instance, Massachusetts law
         protects children 12 years of age or younger from criminal liability4 whereas North Carolina
         protects children 6 years of age or younger from criminal liability.5 Fifteen jurisdictions set the
         minimum age for criminal liability at 10.6 Some states have adopted exceptions to the minimum
         age requirement, such as Nevada which protects children who are 10 years of age or younger
         from criminal liability unless the child between 8 to 10 years old is charged with murder or a
         sexual offense.7
         The Model Penal Code (MPC) sets out four kinds of culpability that may be required in any valid
         criminal conviction,8 including “purposely,”9 “knowingly,”10 “recklessly,”11 and “negligently.”12
         Culpability requirements are not required for a person to be convicted of a crime that provides
         for strict liability.13 Some studies suggest, and precedents from the U.S. Supreme Court have
         held, that adolescents have a diminished capacity to make consistent choices, engage in self-
         management, assess risk perception, and calculate future consequences,14 in other words, to
         formulate the required culpability.
1
  National Juvenile Defender Center, Minimum Age for Delinquency Adjudication – Multi-jurisdiction Survey, (January 22,
2020) available at https://njdc.info/practice-policy-resources/state-profiles/multi-jurisdiction-data/minimum-age-for-
delinquency-adjudication-multi-jurisdiction-survey/ (last visited March 9, 2021) (hereinafter cited as “NJDC Article”).
2
  NJDC Article; See also Interstate Commission for Juveniles, Age Matrix, available at https://www.juvenilecompact.org/age-
matrix (last visited March 9, 2021).
3
  NJDC Article.
4
  Section 119.52, M.G.L.
5
  Section 7B-1501(7), N.C.G.S.
6
  NJDC Article (citing American Samoa, Arkansas, Arizona, Colorado, Kansas, Louisiana, Minnesota, Mississippi, Nevada,
North Dakota, Pennsylvania, South Dakota, Texas, Vermont, and Wisconsin).
7
  Section 194.010, N.R.S.
8
  Section 2.02(1), M.P.C.
9
  Section 2.02(2)(a), M.P.C. If the material element of an offense involves the nature of a person’s conduct or a result thereof,
a person acts purposely when it is his conscious object to engage in conduct of that nature or to cause such a result, and, if a
material element involves the attendant circumstances, he is aware of them or he believes or hopes that they exist. Material
element means issues relating to the harm or evil sought to be prevented by the law. MPC s. 1.13(10).
10
   Section 2.02(2)(b), M.P.C. If a material element of an offense involves the nature of a person’s conduct or the attendant
circumstances, a person acts knowingly when he is aware that his conduct is of that nature or that such circumstances exist,
and, if the material element involves the result of his conduct, he is aware that it is practically certain that his conduct will
cause such a result.
11
   Section 2.02(2)(c), M.P.C. A person acts recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be
of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to
him, his conduct involves a gross deviation from the standard that a law-abiding person would observe in the actor’s
situation.
12
   Section 2.02(2)(d). M.P.C. A person acts negligently with respect to a material element of an offense when he should be
aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be
of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in
the actor’s situation.
13
   Section 2.05, M.P.C.
14
   Jenny E. Carroll, Brain Science and the Theory of Juvenile Mens Rea, 94 N.C. L. REV. 539, 582 (2016). See also Roper v.
Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 567 U.S. 460 (2012).
BILL:   CS/CS/SB 626                                                                                                   Page 3
         Offenses Committed by Children
         A person may not be tried for a capital crime without presentment or indictment by a grand jury,
         or for any other felony without such presentment or indictment or an information under oath
         filed by the prosecuting officer of the court, except persons on active duties in the militia when
         tried by courts martial.15
         However, a child may be charged with a violation of law as an act of delinquency instead of a
         crime and tried without a jury or other requirements applicable to criminal cases.16 If a child is
         found to be delinquent, he or she must be disciplined as provided by law.17
         Under ch. 985, F.S., the terms child, juvenile or youth currently mean any person under the age
         of 18 or any person who is alleged to have committed a violation of law occurring prior to the
         time that person reached the age of 18 years.18 However, Florida law does not presently restrict
         the age in which a child, juvenile, or youth may be taken into custody, charged with a violation
         of the law, or adjudicated delinquent.
         The Department of Juvenile Justice (DJJ) reports that in FY 2019-20 12,224 youth at least 7
         years of age but younger than 15 years of age were referred to the DJJ for charges ranging from
         murder and kidnapping to armed robbery and sexual battery.19 The most common of these
         offenses were misdemeanor assault and battery (19%), burglary (14%), felony aggravated assault
         and battery (11%), and petit theft (5%).20 A total of 2,200 youth ages 7 years or older but
         younger than 15 years of age were admitted to secure detention.21
         Florida’s Juvenile Justice System
         The DJJ is tasked with providing a full continuum of care to youth, including but not limited to,
         prevention,22 diversion,23 detention,24 probation,25 and residential commitment.26, 27
15
   FLA. CONST. art. I, s. 15(a).
16
   FLA. CONST. art. I, s. 15(b).
17
   Id.
18
   Section 985.03(7), F.S.
19
   The DJJ, Agency Analysis for SB 626, p. 3, February 8, 2021 (On file with the Senate Committee on Criminal Justice)
(hereinafter cited as “DJJ Analysis”).
20
   Id.
21
   Id.
22
   See s. 985.17, F.S.
23
   Section 985.12, F.S. (providing for civil citation or similar arrest diversion programs).
24
   Chapter 985, Part V., F.S.
25
   Section 985.435, F.S.
26
   Section 985.441, F.S. Sections 985.435(1) and 985.441(1), F.S., provide the court with jurisdiction to sanction children
who are adjudicated delinquent to probation or residential commitment.
27
   DJJ Analysis at p. 2.
BILL:   CS/CS/SB 626                                                                                             Page 4
         Prevention Services
         The purpose of prevention services mandated under ch. 985, F.S., is to reduce recidivism,
         prevent further involvement in the juvenile justice system, protect public safety, and assist with
         at-risk youth’s reentry into the community.28 As a condition of state funds, the DJJ is required, in
         part, to design programs providing services to further one or more of the following strategies:
          Design the programs providing such services to further one or more of the following
             strategies:
             o Encouraging youth to attend and succeed in school.
             o Engaging youth in productive and wholesome activities during non-school hours that
                  build positive character, instill positive values, and enhance educational experiences.
             o Encouraging youth to avoid the use of violence.
             o Assisting youth in acquiring the skills needed to find meaningful employment, which
                  may include assisting the youth in finding a suitable employer.
          Provide demographic information, dates of services, and types of interventions received by
             each youth.29
         Prevention serves at-risk children but is not an alternative for an arrest or charges. These services
         are offered to at-risk children who have not committed a delinquent act and have not been taken
         into custody or arrested.30 Children are often referred to prevention programs such as Big
         Brothers Big Sisters, Boys and Girls Clubs, PACE Center for Girls, and other smaller
         community provided programs. These children often have displayed early warning signs of
         negative behaviors such as poor school attendance and academic performance, disciplinary
         issues, substance abuse, mental health issues, or negative peer associations. Children may be
         referred to a prevention program by a school counselor, teacher, a clergy member, friend or
         parent. In FY 2019-20, 990 children under the age of 7 were referred to a prevention program.31
         Civil Citation and Prearrest Diversion
         A civil citation or prearrest diversion program for misdemeanors must be established in each
         judicial circuit.32 However, the Legislature encourages, but does not mandate, that counties,
         municipalities, and public or private educational institutions participate in a civil citation or
         similar diversion program.33
28
   Section 985.17(1), F.S.
29
   Section 985.17(4)(a), F.S.
30
   The DJJ, Electronic mail from Rachel Moscoso, Legislative Affairs Director, RE: Agency Bill Analysis for SB 626,
February 8, 2021 (on file with the Senate Committee on Criminal Justice).
31
   Id.; The DJJ, Electronic mail from Sam Kerce, Deputy Legislative Affairs Director, RE: Prevention Youth, March 12 2021
(on file with the Senate Committee on Criminal Justice).
32
   Section 985.12(2), F.S.
33
   Section 985.12(1), F.S.
BILL:   CS/CS/SB 626                                                                                                    Page 5
         Each circuit civil citation or similar prearrest diversion program must specify:
          The misdemeanor offenses that qualify a juvenile for the program.
          Eligibility criteria of the program.
          The program’s implementation and operation.
          The program’s requirements.
          A program fee.34
         Examples of program requirements include community service, restitution, family counseling,
         substance abuse, and mental health treatment.35 A civil citation or similar diversion program has
         been implemented in 65 counties in Florida.36 Bradford and Hardee counties have not established
         such a program.37
         Since 2011, over 76,000 eligible first-time youth offenders who have committed a misdemeanor
         offense have been offered a civil citation pre-arrest to participate in a division program.38 The
         DJJ reports that only 2 children under the age of 7 were issued a civil citation for FY 2019-
         2020.39
         Taking a Child into Custody
         A child may only be taken into custody of the DJJ under certain circumstances. A child may be
         taken into custody:
          Pursuant to an order of the circuit court issued under ch. 985, F.S., based on sworn testimony,
             either before or after a petition is filed.
          For a delinquent act or violation of law.
          By a law enforcement officer for failing to appear at a court hearing after being properly
             noticed.
          By a law enforcement officer who has probable cause to believe that the child is in violation
             of the child’s probation, supervised release detention, postcommitment probation, or
             conditional release supervision; has absconded from nonresidential commitment; or has
             escaped from residential commitment.40
         When a child violates the law, the arresting officer may elect to release the child as provided by
         law to a parent, responsible adult relative, or legal guardian, and issue a notice to appear at a
34
   Section 985.12(2)(b)1. and 2., F.S.
35
   Section 985.12(2)(b)4., F.S. The DJJ, Overview Look Here to Locate the Civil Citation Provider in your Area, available at
http://www.djj.state.fl.us/docs/probation-policy-memos/civil-citation-contact-list.pdf?sfvrsn=2 (last visited March 12, 2021)
(listing the civil citation and similar prearrest diversion programs in Florida, and depicting the process for civil citation and
similar prearrest diversion programs in a flow chart).
36
   Florida Department of Juvenile Justice, Civil Citation Implementation by County as of October 2019, available at
http://www.djj.state.fl.us/docs/probation-policy-memos/civil-citation-implementation-map-10-2020.pdf?sfvrsn=4 (last visited
March 9, 2021).
37
   Id.
38
   DJJ Analysis at p. 2. See also The DJJ, Civil Citation and Similar Diversion Program Best Practices Guide, (2020),
available at http://www.djj.state.fl.us/docs/probation-policy-memos/civil-citation-and-similar-diversion-program-best-
practices-guide-2020.pdf?sfvrsn=2 (last visited March 9, 2021) (explaining statewide utilization for the fiscal year 2019-20
was 59 percent).
39
   The DJJ, Electronic mail from Rachel Moscoso, Legislative Affairs Director, RE: Agency Bill Analysis for SB 626,
February 8, 2021 (on file with the Senate Committee on Criminal Justice).
40
   Section 985.101(1)(a)-(d), F.S.
BILL:   CS/CS/SB 626                                                                                                       Page 6
         designated court or government office at a specified date and time provided conditions
         articulated under the rules are met.41 In FY 2019-20, the DJJ reported that 2 children were
         charged with a violation of the law, but no petition for delinquency was filed in either case.42
         Intake and Assessment
         Every child under the age of 18 charged with a crime in Florida is referred to the DJJ.43 Intake
         and screening services for youth referred to the DJJ are performed at a Juvenile Assessment
         Center,44 but must be performed by a DJJ employee.45 The purpose of the intake process is to
         assess the child’s needs and risks and to determine the most appropriate treatment plan and
         setting for the child.46 Once a child is in the custody of the DJJ, the DJJ determines whether
         detention care is appropriate.47 The DJJ makes an initial decision regarding detention care
         placement using the “Detention Risk Assessment Instrument.”48 In certain instances, the DJJ
         does not have discretion and must place a child in secure detention (e.g., when a child is charged
         with possessing or discharging a firearm on school property).49 The DJJ serves as the primary
         case manager responsible for managing, coordinating, and monitoring services provided to the
         child.50
         Detention of Children
         “Detention care” is “the temporary care of a child in secure, or supervised release detention,
         pending a court adjudication or disposition or execution of a court order.”51 There are two types
         of detention care, including:
          “Secure detention” which is the temporary custody of a child while he or she is under the
             physical restriction of a secure detention center or facility pending adjudication, disposition,
             or placement.
          “Supervised releas