While its members may be off for the summer recess, the state Legislature still has some work to do.
High on the list should be correcting a loophole baked — inadvertently, we assume — into the criminal justice reform package last year. Among other changes, the sweeping legislation eliminated mandatory minimums for some low-level drug offenses and put restrictions on solitary confinement while encouraging greater use of diversion programs and setting bail at a level the accused can afford.
Thoughtful measures all. But an attempt to give juvenile offenders a second chance by requiring Juvenile Court judges to dismiss most first-time misdemeanor offenses has created a confusing mess for prosecutors and defendants alike: If a first-time misdemeanor is dismissed, the next offense by the same defendant is technically a first offense — and also subject to dismissal.
The Supreme Judicial Court weighed in on the issue last Friday, using an Essex County case as a guide.
The decision came in the case of “Wallace W.,” a teenager arrested on the North Shore last August on a charge of driving without a license. Wallace’s lawyer asked Salem Juvenile Court Judge Kathryn Phelan-Brown to dismiss the charge and expunge the record of his arraignment, as set out in the new law.
Phelan-Brown declined to dismiss the case, however, noting Wallace W. had been arrested earlier. While he was not convicted, probable cause was found that could have brought the case to trial, meaning it wasn’t a first offense.
Justice Scott Kafker laid it out in writing after the SJC ruled on the issue Friday:
“Consequently, if, as the juvenile argues, a ‘first offense’ ... cannot occur unless there is a prior adjudication of delinquency, and there can never be a final adjudication over the first offense because there is no jurisdiction, the statute would, in effect, create a ‘Catch-22’ and effectively eliminate these misdemeanors as predicates for delinquency adjudications altogether.”
Further confusing the matter, the SJC ruled that while the Legislature likely did not want to give teenagers an infinite number of second chances, a finding of probable cause was not enough to count as a first offense.
Rather, Kafker wrote, “A ‘first offense’ must be proved beyond a reasonable doubt to have occurred.”
The Essex County district attorney’s office wants to see the loophole closed.
“We believe it’s clear that their intention was not decriminalization, but to allow juveniles to have a second chance,” said Carrie Kimball, spokeswoman for District Attorney Jonathan Blodgett. “That is an intention we share and we have long-standing juvenile and youthful diversion programs in place, with accountability and services to encourage young people to move away from behaviors that bring them to court.”
The state’s public defenders’ agency, meanwhile, has argued the Legislature meant to completely phase out the prosecution of minor for misdemeanor crimes such as shoplifting or driving offenses.
That is clearly not the case.
State Rep. Paul Tucker of Salem has cosponsored a bill to close the loophole, saying “I don’t believe it was ever our intent to decriminalize these offenses.”
Here’s hoping the rest of the Legislature feels the same way, and acts quickly. No one disagrees that it makes sense to keep children and teens out of the court system, if at all possible. But a system that allows infinite second chances works in no one’s best interest.