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SJC rejects making shift in juvenile law retroactive

For older cases, 17-year-olds still charges as adults

When Governor Deval Patrick signed a law in September that raised the age at which young defendants would be tried as adults to 18, some advocates hoped the change would apply to 17-year-olds already awaiting trial.

But the Supreme Judicial Court rejected the effort, saying Tuesday that only 17-year-olds charged on or after the Sept. 18 signing could have their cases heard in juvenile court.

The 17-year-olds charged before the law was enacted must still be tried as adults, the SJC ruled, meaning they could face harsher penalties, adult prison, and an adult criminal record.

“We’re disappointed that the [SJC] didn’t go the next step and protect this group of kids,” said Naoka Carey, executive director of Citizens for Juvenile Justice. “It’s really hard knowing what we know about how vulnerable those young people are.”

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Before the law was changed, 17-year-olds accused of crimes were automatically treated as adults. Even with the new law, juvenile offenders can still be tried as adults in cases of violent crime, at the discretion of judges.

Carey said teenagers sent to adult jails and prisons are more vulnerable to sexual assaults and do not have access to the more specialized education offered by the state’s Division of Youth Services, which takes custody of teens and children who are found delinquent.

In its 24-page decision, the SJC said the Legislature did not express an intention to make the law retroactive.

The court agreed that the law was intended to shield teenagers from the dangers of adult prisons but expressed concern that applying the law retroactively could overwhelm the juvenile justice system.

“There is no dispute that the legislative purpose of the act is to protect minors . . . from certain well-documented harms, including victimization by adult inmates and an increased risk of recidivism, that arise when children are prosecuted as if they were adults,” the court wrote. “It is no help to these children, however, if they are transferred to the Juvenile Court system before the system is able to absorb them and able to provide the attending services they need.’’

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The court noted that when the legislation was being considered, court officials testified that the change would necessitate more judges, clerk-magistrates, probation officers, and clinicians to provide services for the thousands more teenagers who would have their cases heard in juvenile court.

The court specifically cited testimony by Juvenile Court Chief Justice Michael F. Edgerton, who told the Legislature that he was in favor of the law but said it could result in a 60 percent increase in the number of juvenile arraignments.

Josh Dohan, director of the Youth Advocacy Division for the Committee for Public Counsel Services, said his agency estimated that about 200 cases of 17-year-olds were pending statewide at the time the legislation was signed.

But prosecutors said there were significantly more. David Traub, spokesman for Norfolk District Attorney Michael Morrissey, said that in Norfolk County alone about 250 open cases involving 17-year-olds were counted.

The office of Middlesex District Attorney Marian Ryan office estimated there were about 540 such cases there.

It was unclear why there was a disparity.

“If the decision had gone the other way, it would have been a logistical problem both for prosecutors and the judiciary,” Traub said. “That’s not why we argued against it. We felt that the plain language and plain intent of this law was for it to take effect upon passage and apply going forward.”

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Representative Kay Kahn, a Newton Democrat who co-sponsored the legislation, said the law was written simply so it could pass quickly.

Legislators had been trying for two years to pass the law, she said.

Had the law been made retroactive “it would have become cumbersome and probably may not have even gone forward,” Kahn said. “It’s unfortunate because there are young people in the system that could perhaps get a second chance if it could have been retroactive.”


Maria Cramer can be reached at mcramer@globe.com. Follow her on Twitter @GlobeMCramer.