Article Headings:

Juvenile Delinquency
Certain Crimes will not Be Prosecuted
Juvenile Diversion Programs
Sentencing for Juvenile Delinquency Matters
When Does the Juvenile Court Jurisdiction Go Beyond Age 18?
The Case Has not Concluded before their 18^th Birthday
The Case is begun between the Child’s 18^th and 19^th Birthdays
Youthful Offenders
Youthful Offender Sentencing
Transfer Hearings
Harassment Prevention Orders

While the Juvenile Courts of Massachusetts handle a numbers of different types of cases which relate to the care and treatment of juveniles, our office only handles those relating to the defense of juveniles who have been charged with crimes (“Delinquency” and “Youthful Offenders”), as well as the prosecution and defense of juveniles in civil Harassment Prevention Order (“HPO”) and Restraining Order matters. The focus of these pages will be on these types of matters.

Juvenile Delinquency:

Criminal proceedings in the Juvenile Court are referred to as “delinquency” matters. A juvenile is defined as someone who is between the ages of 12 and 18. When a child between these ages is alleged to have committed a crime, the case is prosecuted in the Juvenile Court in the geographic area where the crime was committed.

Certain Crimes will not Be Prosecuted:

Due to recent legislation, juveniles will no longer be prosecuted for certain crimes, including:

Violations of any municipal ordinances or town by-laws;
Where the crime is a first offense for a misdemeanor which carries a maximum sentence of a fine or 6 months or less;

If charged with any such crime, the policy of the court is to have the child appear in court, but the matter will be dismissed prior to arraigning them on the charges.

Juvenile Diversion Programs:

In certain matters, pre-trial diversion is an option which gives the accused the opportunity to avoid a record following a prescribed period where the offender must not commit any additional offenses and may be required to complete community service and any appropriate counseling/educational programs. In the Juvenile Court, there are two different types of diversion, Judicial Diversion and District Attorney’s Diversion.

1. Judicial Diversion:

Through legislation in 2018, Judicial Diversion in the Juvenile Court was enacted. If the juvenile successfully completes the diversion program, the court may dismiss the charges, leaving the child with no record.

Who is Eligible for Judicial Diversion?

Subject to certain exceptions (discussed below), any juvenile who is charged with a crime in the Juvenile Court may seek Judicial Diversion.

Exceptions:

Diversion is not available to those juveniles who have been indicted as a Youthful Offender. (See link to that for more information).
Certain offenses are also not eligible for diversion. Some of these include:
- Drunk Driving Offenses
- Motor Vehicle Homicide
- Violations of Restraining Orders
- Most Assaultive Crimes (excluding simple misdemeanor assault and battery)
- Stalking
- Criminal Harassment
- Sex Offenses
- Robbery
- Larceny from Person Over Age 65
- Offenses involving dangerous weapons
- Any offense having a penalty of incarceration greater than 5 years
- Any offense which has a minimum required term of incarceration
- Any offense which may not be Continued Without a Finding (“CWOF”) or placed on file

How Do I Get Judicial Diversion?

Prior to arraignment the juvenile, their parents or guardians can request judicial diversion. Once requested, an assessment is conducted to determine whether juvenile could benefit from a diversion program.

The assessment can be done by either a probation officer or personnel at a particular diversion program. The judge may continue the arraignment for up to 14 days in order for the assessment to take place. The judge also has the authority to order diversion without any assessment if he or she determines there is sufficient information available to make that decision.

Following the assessment, a recommendation is given to the court, the juvenile’s counsel, and the district attorney as to whether the juvenile could benefit from diversion. A hearing will then take place in order for the judge to determine whether diversion is appropriate.

What is a Diversion Program?

Diversion programs can be any program of community supervision and services designed to protect the public and benefit the juvenile. Common types of diversion programs can include some or all of the following:

Educational or Vocational Programs
Substance Abuse and Disorder Programs
Psychological Services
Community Service
Counseling
Rehabilitative Services

What Happens if the Judge Decides to Send Me to a Diversion Program?

With your consent, the case will be stayed for up to 90 days in order for you to enter into the diversion program. If at the end of those 90 days, additional time is needed to complete the program, the judge may order that the case be stayed for up to an additional 90 days to complete the program. If you successfully complete the diversion program the judge may dismiss your case.

What Happens if I Do Not Complete the Diversion Program?

If you do not successfully complete the diversion program, a report is submitted to the court by probation or the director of your program. The judge will consider the recommendation of the report at a hearing at which you and your attorney may participate. The judge has wide discretion and can choose to:

Dismiss your case;
Extend the stay of your case; or
Have your case resume in the normal course (i.e. you are arraigned)

What if I am Charged with a New Crime While in Judicial Diversion?

If you are charged with a new crime, you will be ordered to come to the court. The judge will hold a hearing, at which you and your attorney can participate. If the judge finds that there is probable cause to believe you committed the new crime, he or she can order that diversion be terminated and your case will resume in the normal course.

Benefits of Judicial Diversion:

If successful your case can be dismissed
If successful the case will not appear anywhere on your record
If successful all court records of the matter will be expunged / destroyed
While you are in the Judicial Diversion Program, your school cannot consider the case as a reason to suspend you under Massachusetts General Laws, c. 71, § 37H1/2
In you are not successful in diversion and your case continues to be prosecuted, nothing you have said or done in seeking diversion nor in your assessments or treatment can be used against you in the prosecution of the charges.

It is important to note that everything in the Juvenile Court Judicial Diversion Law is a “may,” meaning that the judge has discretion throughout this process. Nothing in the law requires the judge to grant a continuance, accept the treatment or diversion recommendations, or ultimately dismiss the case. However, in practice it is still your best chance to avoid being prosecuted and having a record. Further, it is our experience that most Juvenile Court judges seek to reward juveniles who can successfully complete judicial diversion by dismissing their cases and expunging all records.

2. District Attorney’s Juvenile Diversion:

For several years prior to judicial diversion, the various district attorneys’ offices had established their own diversion programs. These programs can vary in their requirements from county to county. However, they are usually available only to first time offenders accused of non-violent crimes and are offered at the discretion of the prosecutor. Similar to judicial diversion, if the juvenile agrees to enter the diversion program the arraignment is stayed pending completion of the program. The juvenile is also usually required to complete community service and appropriate counseling/educational programs.

If the juvenile fails to complete any of the requirements of the District Attorney Diversion Program or is charged with any new offense, the original matter is brought back before the court and the juvenile will be arraigned and the charges will proceed in the normal course.

Unlike judicial diversion, the decisions concerning who is granted entry into the program and what constitutes failure to comply with conditions rest solely with the district attorney’s office. The judge has no authority to overrule these decisions.

If you successfully complete the program, the district attorney will not prosecute the case, and there will be no court record of that offense.

Sentencing for Juvenile Delinquency Matters:

Sentencing occurs when the juvenile either enters into a plea or is found delinquent (same as guilty for adults) after a trial. Sentencing is one of the primary areas in which Juvenile Court differs from the adult courts. While there are many similarities, it is important to understand the differences and options available to juvenile. These are discussed below.

Different Kinds of Probation:

For any type of probation, the juvenile is placed on probation for a certain period of time (i.e. 6 months, 1 year, etc.) and asked to abide by certain conditions. Probation conditions will vary from case to case. They will usually have some bearing on the offense and the particular history of the child. Probation conditions could include things like:

Complete counseling
Perform a certain number of community service hours
Stay in school or maintain employment
Stay away from a particular person or place
Refrain from using drugs and alcohol; and
Commit no other crimes.

The juvenile will be monitored by a probation officer, who works with the juvenile and reports any issues or violations to the court. The maximum period of time for probation mirrors the Juvenile Court’s jurisdiction over the child. In most cases, when the matter is disposed of prior to the child’s eighteenth (18) birthday, probation cannot go past that birthday. However, if the matter is disposed of after the child turned eighteen (18), jurisdiction and thus probation can be until the juvenile turns age nineteen (19).

Pre-Trial Probation (PTP)

Pre-Trial Probation is one of the best dispositions that juvenile can receive. It does not require that the juvenile make any admission of guilt or go through the formal procedures associated with other types of pleas. Another factor which distinguishes it from other dispositions, is that the prosecutor must agree to it. A judge cannot give Pre-Trial Probation over the prosecutor’s objection. If successful on pre-trial probation, the matter will be formally dismissed by the court.

One of the greatest benefits of pre-trial probation occurs when, if for some reason, the juvenile is not successful. Because the juvenile did not make any admission of guilt or go through any formal plea process, the juvenile has not waived any rights. If the juvenile fails to complete Pre-Trial Probation, the matter is simply restored to the regular case list and the juvenile has the ability to present any defense to the charges that he or she has. Due to this feature, Pre-Trial Probation should almost always be considered when offered. We think of it as the best of both worlds. If successful, the matter is dismissed. If not, we have not given up anything.

Continuation Without a Finding (CWOF)

Continuation Without a Finding, “CWOF” for short, is a disposition that is usually given to first time offenders, although it can be given more than once. It is available for most offenses, including felonies, unless the statute/law for that offense specifically excludes it as a possible disposition. It is a form of probation, which if successfully completed will cause the case to be dismissed. In this way, it is similar to pre-trial probation. However, a CWOF has two distinguishing factors from pre-trial probation:

A CWOF is a plea which follows formal plea procedures, during which the juvenile admits there are “sufficient facts” to find him or her guilty and waives all rights to defend the case, including the right to a trial; and
Unlike pre-trial probation, the prosecutor does not have to agree to this disposition.

Due to the first of these differences, if you do not successfully complete probation for a CWOF, you do not have the right to continue to defend the case. You will be subject to a probation surrender hearing, at which the only things considered are (1) did you a violate a condition of your probation; and (2) if so, what punishment/sentence should be imposed. This could include anything from adding time or conditions to your probation, to finding you delinquent and committing you to the Department of Youth Services.

The second difference is a benefit to the juvenile in that the judge can grant this disposition even if the prosecutor does not agree.

CWOF Can be Given After Trial:

This is one of the ways in which the Juvenile Court dispositions differ from adult court. In adult court a defendant cannot receive a CWOF after trial. However, the statutory authority which governs the Juvenile Court allows the judge, even after trial and a finding of guilt, to give the juvenile a CWOF as a disposition. This is in line with the Juvenile Court’s purpose which favors rehabilitation over punishment. If done, this would allow the juvenile the chance to keep his record clear of this conviction. Keep in mind that this is completely within the discretion of the judge. There is no circumstance in which they would be required to grant a CWOF after trial. It has also been our experience that such a disposition would be the exception, as opposed to the rule.

There are also exceptions in which a CWOF cannot be given after trial. These relate to certain offenses such as:

Indecent Assault and Battery on a Child Under Age 14
Rape
Statutory Rape
Human Trafficking

where the statute specifically excludes it as a disposition.

Delinquent Probation

This disposition is similar to other forms of probation discussed above, except that this disposition involves the child being convicted of the offense for which they were charged. This means that the delinquent / guilty finding is on the juvenile’s record and can have consequences for the juvenile in the future with regard to things such as federal financial aid, college admission, jobs, etc. As with a CWOF, if the juvenile violates this probation, he or she will be subject to a probation surrender hearing. There, the only things considered are (1) did you a violate a condition of your probation; and (2) if so, what punishment / sentence should be imposed. This could include anything from adding time or conditions to your probation, to finding you delinquent and committing you to the Department of Youth Services.

Suspended Commitment to the Department of Youth Services (DYS)

Suspended commitment is often referred to as “having one foot in the jail.” It is usually the last chance given to a juvenile who has been adjudicated / convicted of a crime prior to commitment. It can come as the result of:

Being convicted of a more serious crime;
Having a significant record of prior convictions, during which the juvenile demonstrated and inability to comply with probation; or
Having a case where they previously received a lesser disposition, such as a CWOF, but continually violated probation or violated probation in a major way (i.e. committed a serious crime while on probation).

This is a disposition which generally gives the juvenile a chance to stay out of incarceration if they can successfully complete their probation. However, if unsuccessful the judge in most circumstances will commit the juvenile to the DYS (i.e., jail for kids).

Commitment to the Department of Youth Services (DYS)

Commitment to DYS is where the judge sentences the juvenile to jail for kids. This is another area where the Juvenile Court differs significantly from the adult court. In the adult court, the judge has discretion within the particular statute to sentence the adult to a particular period of time (i.e., 30 days, 60 days, 1 year, etc.). However, in the Juvenile Court the judge may only commit the juvenile to DYS until the age of 18 (or 19 if the case is disposed after 18^th birthday). An exception to this would be with regard to sentencing a youthful offender (discussed below).

What Happens to the Juvenile Once Committed to DYS?

When a juvenile is sentenced to DYS they are sent to a secure treatment facility. DYS conducts an assessment and develops a rehabilitation plan for the juvenile immediately upon their being committed. Although committed until they turn age 18, most juveniles who are committed do not stay in a locked DYS facility until that time. DYS will hold them for as long as they determine in accordance with the treatment plan. This is based on many factors, including the juvenile’s particular needs, history and/or seriousness of the offense. DYS maintains a “grid” which discusses the likely periods of incarceration for different offenses. While this DYS grid is often followed, it is merely a guideline and DYS can vary from it, with both lesser and greater periods of incarceration.

When a juvenile who is released prior to their 18^th birthday, it is called a “grant of conditional liberty (“GCL”). Think of it like parole for adults. They remain under the supervision of DYS while in the community. If they violate a term of their release, the juvenile does not go back to the Juvenile Court. They are subject to a violation hearing by DYS. If found in violation, they can be returned to a secure DYS facility for the period determined by the hearing officer or until they age out at either 18 or 19.

When Does the Juvenile Court Jurisdiction Go Beyond Age 18?

In most cases, the court’s jurisdiction over the juvenile ends when they turn age 18. However, there are exceptions to this general rule. The five reasons why the Juvenile Court jurisdiction may extend past the child’s 18^th birthday are discussed below:

Case is not concluded before the child’s 18^th birthday;
The case is begun between the child’s 18^th and 19^th birthdays;
They are indicted as a Youthful Offender;
The case was not initiated before the child’s 18^th birthday, but qualifies for “transfer” to adult court; or
If the juvenile is charged with First or Second Degree Murder.

The Case Has not Concluded before their 18^th Birthday:

If the crime was committed when the juvenile is between the ages of 12 and 18, but the final disposition of the case does not happen before his or her 18^th birthday, the court’s jurisdiction over the child for that offense will be extended until their 19^th birthday. If at the time of the juvenile’s 19^th birthday, the matter is still not concluded, then the jurisdiction for that offense will be extended until their 20^th birthday. However, jurisdiction for juvenile delinquency matters cannot extend past the child’s 20^th birthday.

An example of this would be where “Joe” is arrested for stealing a car when he is 17 years old. Due to various issues in the case, it takes a year to schedule Joe’s case for trial. Although Joe turned 18 two months before his trial, the court retains jurisdiction over Joe, because the case started before his 18^th birthday. If Joe were to either accept a plea or be found delinquent after trial, the court would continue to have jurisdiction over him until he turns 19. That would mean the judge in the Juvenile Court could sentence Joe by placing him on some type of probation or commit him to the Department of Youth Services until his 19^th birthday.

The Case is begun between the Child’s 18^th and 19^th Birthdays:

If the offense was committed when the child was between ages 12 and 18, but the child is not “apprehended” until between their 18^th and 19^th birthdays, the court will continue to have jurisdiction over the matter and the rules set forth above will apply.

“Apprehended” also does not necessarily mean arrested. In the context of the juvenile court, it also means when the court initiates a case and sends a summons to the juvenile to appear at court.

Youthful Offenders:

Youthful Offender cases generally involve more serious offenses. Most people have heard of a court trying a juvenile “as an adult” from TV or elsewhere. This is similar to that, although it is more of a hybrid between a juvenile and adult case under a very specific set of circumstances. A Youthful Offender case can only be brought if:

The juvenile is between the ages of 14 and 18;
The offense is a felony; and
The juvenile was previously committed to DYS

The offense involved the infliction or threat of serious bodily harm or is one of certain specific firearms charges.

If the case meets these minimum requirements, it is the decision of the prosecutor whether they seek an indictment to try the juvenile as a Youthful Offender. Just as with an adult charged with a serious matter, the prosecutor must present sufficient evidence to a Grand Jury to obtain an indictment. The standard of proof to the Grand Jury is the low standard of probable cause.

If the juvenile is indicted as a Youthful Offender, the matter would stay in the Juvenile Court and most of the same rules continue to apply. However, some notable difference include:

In a jury trial there are now 12 jurors as opposed to 6 in a normal juvenile proceeding
Sentencing is a hybrid between the juvenile and adult court

Youthful Offender Sentencing:

If a Youthful Offender is found guilty after trial, the judge can sentence the person as follows:

Commitment to DYS until age 21

Any sentence provided by law (essentially any sentence an adult could get, including State Prison)

A “Combination” sentence, which is:
- Commitment to DYS until age 21;
- Followed by an adult sentence to either the House of Correction or State Prison;
- The adult sentence must be suspended and the juvenile is placed on probation for a set period of time.

Transfer Hearings:

Although less common, a juvenile case can be transferred to the adult court if the crime was committed before the age of 18 but the accused was not apprehended until after their 19^th birthday. An example of how we have observed this applied in our practice would be for late reported sexual assaults. In some instances, a period of time – sometimes years – will pass before an alleged victim of sexual assault comes forward to report the attack. On more than one occasion we have handled a transfer hearing relating to this scenario. In each of these cases, several years had passed between the alleged assault and the reporting of the crime.

The transfer hearing consists of two parts:

Whether there is probable cause for the offense; and
Whether the interests of the public / protection of the public require that the charge be prosecuted
- If not, the case will be dismissed
- If so, the matter is transferred and tried in adult court

1. Probable Cause Stage:

As the first part of the hearing relies on the low standard of probable cause, it is almost always met by the prosecution. For probable cause to exist in these types of cases, it usually only requires that the alleged victim describe the acts occurring in a reasonably plausible way. Absent some form of irrefutable evidence that the events did not occur, this standard will almost always be met. What further hampers the defense at this probable cause stage is that in many cases, the incidents in question will have happened years earlier. Memories have faded, potential helpful witnesses may no longer be available, etc.

2. Interests of the Public / Protection of the Public:

As probable cause is almost always found in cases such as this, we often focus our efforts on discussing why the interests and protection of the public are not served by continuing with any prosecution. Some things to consider might be:

Any criminal record of the person either before or after the alleged incident;
If there is a record, is it minor, serious or violent;
What steps has the person taken towards rehabilitation since the alleged incident, such as counseling, school, etc.
The level of education the person received;
Does the person maintain employment;
Other positive activities in which the person is involved;
Any psychological evidence concerning whether the person is likely to re-offend

In some of these cases, we have employed expert witnesses, such as psychologists, to help illustrate these issues. The worst case occurs when someone who may have done the crime many years ago as a juvenile has turned their life around and now may face prosecution as an adult for very serious crimes.

The Judge Has Wide Discretion:

The statute and case law surrounding transfer hearings has made clear that the Juvenile Court judge hearing this case has wide discretion on how they rule. Absent a clear abuse of that discretion, the appellate courts have stated that they will not overrule the judge’s decision.

Harassment Prevention Orders:

Most of the rules relating to Harassment Prevention Orders (“HPO”) for adults also apply to those filed by or against any juvenile. The only real distinction is that any HPO sought against someone under the age of 18 must be brought in the Juvenile Court. For more information, see our section on HPOs.