Think Twice Before Pleading a Sixteen or Seventeen Year-old to an Adult Criminal Offense

JurisdictionVermont,United States
CitationVol. 2011 No. 09
Publication year2011
Vermont Bar Journal

Fall 2011-#4. Think Twice Before Pleading a Sixteen or Seventeen Year-Old to an Adult Criminal Offense

Volume 37, No. 3
Fall 2011

Think Twice Before Pleading a Sixteen or Seventeen Year-Old to an Adult Criminal Offense

by Pamela A. Marsh, Esq. and Jennifer Wagner, Esq.

In Vermont, prosecutors have the right to file all criminal cases against youths sixteen and older in adult court.(fn1) In many counties, prosecutors routinely do so, and leave it to defense counsel to move for a transfer to juvenile court under § 5203(b) (sometimes referred to as a "straight transfer") or pursuant to § 5281 (youthful offender transfer). In other counties, prosecutors make a case-by-case decision as to whether to file in juvenile court or in adult court. Finally, in two counties, Bennington and Caledonia, prosecutors are filing the vast majority of cases against sixteen and seventeen year-olds in juvenile court, reserving only the most serious offenses and motor vehicle offenses (some of which are categorically excluded from juvenile court) for initial filing in adult court. The purpose of this article is to advocate for defense attorneys routinely to move to transfer cases filed in adult court against sixteen and seventeen year-olds to juvenile court.

This article is intended to offer practical advice in connection with the transfer decision, rather than to provide a scholarly study of the reasons supporting treatment of minors in the juvenile justice system. Detailed scholarly analyses of the reasons supporting juvenile court treatment of minors have been written by Tom Gris-so, Frank Zimring, and others.(fn2) Further, recent U.S. Supreme Cases, such as Roper v. Simmons,(fn3) Graham v. Florida(fn4) and J.D.B. v. North Carolina,(fn5) have recognized that juvenile brain development is substantially different from adult brains, and that, as a result, juveniles should be recognized as different from adults in terms of culpability, as well as punishment.

Legal Representation of Misdemeanants in Adult Court

Pursuant to state and federal law, in cases involving a misdemeanor in which the possible fine is $1000 or less, or which is punishable with one year or less in jail, and in which the State is not requesting jail or a probationary sentence, an indigent defendant is not entitled to the appointment of counsel. Many youths charged with apparently minor offenses, such as driving offenses (including DUI) and possession of marijuana, are not routinely assigned counsel. Often their parents consciously choose not to hire counsel for them, or cannot afford to hire counsel. Parents often advise their child to plead guilty and "take the consequences," not knowing or understanding that the collateral consequences of the adult conviction may be far worse than the fine or license suspension imposed for the offense.

Some Vermont judges will not accept an uncounseled guilty plea by a minor. Other judges will allow a minor to do an uncounseled guilty plea by waiver. Some judges will appoint counsel, even if the defendant does not qualify for counsel due to the income of the parent, in order to ensure that the minor receives adequate legal...

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