57 RI Bar J., No. 3, Pg. 39. Falling into the Gap.

• Author: Tricia P. Martland, Esq.

Rhode Island Bar Journal

Volume 57.

57 RI Bar J., No. 3, Pg. 39.

Falling into the Gap

Rhode Island Bar Journal 57 RI Bar J., No. 3, Pg. 39 November/December 2008 Falling into the GapTricia P. Martland, Esq.Assistant Professor of Legal Studies at Roger Williams University, School of JusticeIn State of Rhode Island v. Greenberg, the Rhode Island Supreme Court answered many of the legal questions facing the 400 plus gap kids across Rhode Island. The Court, in a unanimous ruling, stated all 17 year olds charged as adults should be returned to the Family Court. The Court also acknowledged the importance of the waiver statute, the critical mission of the Family Court and the bizarre plight of all juveniles caught in the legislative anomaly known as the gap.

The Origin of Gap Kids

Juveniles, termed "gap kids," were charged as adults under a law making 17 year olds subject to adult criminal prosecution. The law, passed in July 2007, was intended as a cost savings to the state. However, lawmakers and legal practitioners quickly recognized that trying 17 year olds in the adult system was poor public policy and provided no cost savings to the state purse. In an effort to rectify the policy mistake, the legislature passed a new law returning 17 year-old offenders to Family Court. This action left a period of 131 days where over 400 juveniles, caught in the "gap" between the laws, were charged as adults and subject to a vast array of adult penalties without the ameliorative efforts previously provided to juveniles by the Rhode Island Family Court.

Family Court Jurisdiction

The Rhode Island Supreme Court decision addressed the legal issues facing gap kids by engaging in an analysis of Rhode Island law and the July amendment. To begin, the Court addressed the issue of jurisdiction over juveniles and Title 14 of the Rhode Island General Laws. Specifically, Title 14 is "designed to deal with children who are accused of acts that would be criminal if committed by an adult." (fn 1) The Court further stated that while the Family Court does maintain exclusive personal jurisdiction over juveniles petitioned as delinquents, "it has no authority to adjudicate that child as a felon." (fn 2) In fact, the process of divesting jurisdiction from the Family Court to the Superior Court is made only by a judicial finding that a waiver of Family Court...