Dispositions

AuthorAnthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
ProfessionUniversity Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
Pages793-830
793
CHAPTER 38
DISPOSITIONS
PART A. OVERVIEW OF THE DISPOSITIONAL
STAGE AND DISPOSITIONAL OPTIONS
§ 38.01 The Unique Natur e of Sentencing in Juvenile
Court; Overview of the Chapter
It is at the dispositional phase that juvenile delinquency proceedings differ most strik-
ingly from adult criminal proceedings. The dispositional process is the stage at which
the attempt is made to provide individualized justice—the rationale of juvenile court.
Lawyers who represent delinquents in juvenile court cannot do an effective job without
recognizing the unique features of dispositional hearings and developing strategies to
maximize the possibility of a favorable outcome at the dispositional hear ing.
This chapter begins by describing the role of counsel at the dispositional phase of
a delinquency case (§ 38.02). It discusses the un ique features of the dispositional phase
and the range of dispositions available in a delinquency case (§ 38.03), then describes
the procedures prior to and at the dispositional hearing (§ 38.04). Sect ions 38.05–38.16
describe the various th ings counsel should do or consider doing in preparation for the
dispositional heari ng. Section 38.17 presents an argu ment for the right to an evidentiar y
dispositional hearing. Sect ions 38.18–38.24 deal with the conduct of evidentia ry disposi-
tional hearing s. Sections 38.25–38.27 deal with the conduct of non-evidentia ry hearings.
Finally §§ 38.28–38.29 briefly discu ss actions that counsel should consider taking after a
final order of disposition has been entered. (Chapter 39 discusses in greater detai l post-
dispositional features of delinquency practice.)
§ 38.02 The Role of Counsel at Disposition
As explained in § 2.03 supra, the prevailing view of counsel’s role in a delinquency case
before In re Gault, 387 U.S. 1 (1967), was that counsel was free to substitute his or her
own wishes for the objectives of the client. The result in the dispositional phase was
that an attorney could defy h is or her client’s wishes and seek incarceration of the client
if counsel believed that this course of action best served the client’s needs. When Gault
formalized the trial phase of a delinquency case a nd established fundamental r ules for
the relationship between counsel a nd client in that phase, the lessons it taught necessar ily
carried over to the dispositional phase. As recognized i n the ethical standards governing
794 | Tria l Manual for Defense Attor neys in Juvenile Delinquency C ases
representation in delinquency cases, the only legitimate post-Gault view of the attorney-
client relationship at disposition is that the client defines the objectives of representation
just as s/he does th roughout the earlier stages of the case.
The Juvenile Justice Standards of the Institute of Judicial Admin istration and the
American Bar A ssociation explain:
The role of counsel at disposition is essentially the same as at earlier stages of
the proceeding: to advocate, within the bounds of the law, the best outcome
available under the circumstances according to the client’s view of the matter. . . .
Counsel may, of course, appropriately advise a client with respect to community
or correctional-therapeutic services that may be of long-term bene t; where
circumstances warrant, counsel may also urge the client to accept these services
or programs as part of a dispositional plan. Discharge of this counseling function
must, however, be distinguished from the actual decision, which is for the client
to make. Once full advice is given, the lawyer’s own opinion of the client’s needs
or interests is subordinated to the client’s de nition of those interests, and the
lawyer-client relationship generally demands that counsel advocate the client’s
desires as strenuously as possible.
IJA-ABA Jin Cmm  J J S , S R  
C  P P, Commentar y to Standard 9.3(a) (1980).
§ 38.03 The Dispositional Options Avail able
in Juvenile Court
§ 38.03(a) Introduction
In virt ually all jur isdictions the range of alternat ive dispositions available to the court is
extremely broad. Even after an adjudication of delinquency based on a f inding that t he
respondent committed a serious felony, the court is empowered to dismiss the case at the
dispositional phase upon a showing t hat the respondent does not need any services and that
dismissal is consistent with the best interests of both t he respondent and the community.
See, e.g., In t he Mat ter of McP., 514 A.2d 446, 447, 448, 449–50 (D.C. 1986); State ex rel. Juve-
nile Department of Multnomah County v. Dreyer, 328 Or. 332, 334, 338, 341 976 P.2d 1123,
1125 –26, 1128 (19 99). Cf. In re Letisha D., 14 A.D.3d 455, 456–57, 788 N.Y.S.2d 374, 374–75
(N.Y. App. Div., 1st Dep’t 2005); In re Ju stin Cha rles H., 9 A.D.3d 316, 317–18, 780 N.Y.S.2d
13, 13–14 (N.Y. App. Div., 1st Dep’t 2004). Of course, dismissal is rare in case s in which the
respondent was convicted of a serious felony.
Far more common is a disposition that leaves the respondent in h is or her own com-
munity on probation. Probation itself encompasses a ra nge of alternatives. A judge may
require as little as that the respondent live at home, attend school regularly, and meet
regularly with a probation officer. Or the judge may insist that while liv ing at home, the
respondent attend a program in the com munity (such as outpatient therapy or vocational
traini ng after school) or that the respondent participate in a residential community-
based program (such as a drug rehabilitation program).
Dispositions
| 795
The more severe dispositional alternatives, f rom the respondent’s point of view,
involve placement out of the community. In some States the only placement available
to a respondent who is removed from the community is in the state training school.
In many States, however, there are various alternatives: group foster care; work camps;
private residential programs with schooling; and the state training schools, which may
range from min imum to maximum security facilities.
§ 38.03(b) The Judge’s Power to Order a Specific Progra m
In all jurisdictions judges have the power to order that, as a condition of probation,
the respondent cooperate with a part icular program. If the respondent fails to comply
with the rules of the program, s/he will be in violation of probation. This type of con-
ditional probation comes very close to placing the respondent with the program. How-
ever, it is not technically a placement. Depending on the jurisdiction, the judge may not
have the power to place respondents with certai n programs, or the program may not be
required to accept the respondent into its care. By ordering probation conditioned upon
the respondent’s compliance with the ru les of the program, t he court can rema in within
the limits of its power and keep t he respondent in the community. In addition, in many
jurisdictions, judges do have the power to place respondents in particular facilities, at
least when the facility is w illing to accept the placement.
§ 38.03(c) The Ra nge of Dispositional Alternatives
In most jurisdict ions there are no formulas requiring specific sentences for adjudications
of delinquency based upon particular crimes. Typically, an adjudication for any offense
exposes a juvenile to an i ndeterminate period of incarceration that can theoretically
extend to the child’s age of majority, either through an initial indeterminate sentence
until the ch ild’s age of majority or through annual ex tensions until that age. Commonly, a
sentence of incarceration cannot be based solely upon the fact that a delinquent was con-
victed of violating t he penal law. Rather, incarceration can be ordered only if there is bot h
a crime and a showing t hat the delinquent requires treatment which must be provided in a
secure facilit y in order to satisfy the community ’s needs for protection from the offender.
Conceptually, these are the factors that set juvenile court apart from adult criminal
court. Though the stat utory language may differ among ju risdictions, juvenile court judges
typically are required to consider the individual needs and interests of the juvenile when
fashioning a fi nal order of disposition and to design an order that is the least drastic alter-
native consistent with the needs and best interests of the juvenile and the needs of societ y.
The range of dispositional alternat ives and the judge’s discretion in choosing a mong
them are both ext raordinarily broad. The array of dispositions avai lable in most jurisdic-
tions includes, in order of increasing severity:
1. Outright dismissal of the case without retaining jurisdiction of any kind over the respon-
dent. Dismissal may be ordered for many reasons, including a showing that the
respondent does not need or would not benefit from court intervention.
2. Probation without verdict (called by dif ferent names in different jurisdictions, including
“adjournment in conte mplation of dismissal” and “diversion”). Sentencing is delayed for

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