Posted on November 9th, 2009 No comments
The Michigan Supreme Court has proposed amendments to MCR 3.932, the rule governing the consent calendar. The proposal gives two alternatives. Alternative A would eliminate the Consent Calendar completely by striking sub-paragraph C. Alternative B would require a prosecutor’s consent to the use of the consent calendar and would prohibit the court from placing a case for an assaultive crime as
defined in the Juvenile Diversion Act on the consent calendar. The proposal is in the comment phase at the moment.
It appears supporters and the detractors have lined up on both sides of the issue. Prosecutors generally are in favor of both options, but would prefer Alternative B. Defense attorneys and judges have lined up against both alternatives.
Naturally, I am against either proposal. The consent calendar, as applied, is very similar to the Holmes Youthful Trainee Act (HYTA). The Holmes Youthful Trainee Act is a diversionary program for defendants between 17 and 21. At the discretion of the judge an offender may be placed on probation for a period of time and if the offender completes probation the case will be dismissed without a conviction. This program has been successful in the adult court.
Similarly, the consent calendar is a type of diversion. A juvenile offender may be placed on the consent calendar at the discretion of the judge. A juvenile on the consent calendar is ordered to probation for a period of time and the case is a removed from the adjudicative process. If the offender completes the probation, the matter is dismissed and it is as if the juvenile was never charged. The records of the matter are kept private and no report or abstract may be made to any other agency. If the juvenile does not complete the probation, he or she may be placed back on the formal calendar and adjudicated for the offense.
Prosecutors are purportedly in favor of these amendments because, as at least one prosecutor put it, “The current court rule completely ignores the rights of the victims. The current consent docket also prevents the victim from having their day in court to redress the wrongs committed against them.” While this is a direct quote from one prosecutor’s comment on the proposal, it accurately summarizes the position of most prosecutors that commented on the proposal. This argument seems disingenuous to me because MCR 3.932(C)(3) clearly allows the victim to be present at the consent conference and I have not seen any evidence of victims being denied the right to speak at these hearings.
The second argument set forth by the prosecutors is that “the consent docket does nothing but send the message to juvenile offenders that there will be no meaningful consequences for criminal wrongdoing.” To this argument, I would simply point out that the purpose of delinquency petitions under the juvenile code is not to punish, but to rehabilitate the juvenile. Currently, Michigan law reflects in part this emphasis. MCR 3.902(B)(1)–(2) state as follows:
The rules must be interpreted and applied in keeping with the philosophy expressed in the Juvenile Code. The court shall ensure that each minor coming within the jurisdiction of the court shall:
(1) receive the care, guidance, and control, preferably in the minor’s own home, that is conducive to the minor’s welfare and the best interests of the public; and
(2) when removed from parental control, be placed in care as nearly as possible equivalent to the care that the minor’s parents should have given the minor.”
MCL 712A.1(3) contains similar language. I think the prosecutors have either missed the mark or they are not telling the real reason they are pushing for this proposal. If I had to guess, I would think the prosecutors are not happy with juveniles facing sex offenses being placed on the consent calendar to avoid the requirements of the sex offender registry. Perhaps it was easier to simply do away with the consent calendar than to ask the legislature amend the Sex Offender Registry Act to include children placed on the consent calendar.
On the flip side of the debate, defense attorneys and judges wish to keep the consent calendar because it provides sentencing flexibility and recognizes that juveniles are less culpable for their actions than adults.
I am opposed to the proposal for three simple reasons:
1) Just as HYTA has been successful for many young adult offenders, I have seen the consent calendar successfully used as a tool to straighten out some kids that were starting on a bad path.
2) If a juvenile does not straighten out and complete the consent calendar probation requirements, they can be placed back on the formal calendar and adjudicated. Thus, there is no downside to the consent calendar: either the juvenile is rehabilitated on consent or he or she is adjudicated and you try stronger measures.
3) Judges of the family division are elected by the people to make dispositional decisions with respect to juvenile offenders. Taking one of those tools away from them or putting judges at the mercy of prosecutors creates unnecessary barriers to the rehabilitation of minors. Further, it seems like a violation of the separation of powers to give the prosecutor a trump card over the judge by requiring the prosecutor’s consent to place a juvenile on the consent calendar.
You can follow the progress of this amendment here: Michigan Supreme Court Proposed Court Rule Amendments