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This is the first installment of a three-part series.

I write in response to the article in the Law Journal on July 3, entitled: “NJ Judges Called to Step Down Following NY Times Report on Handling of Rape Cases.” A more appropriate call to action would be to ask the New Jersey Legislature to “step up.” Here's why.

If any issue associated with this situation calls out for a remedy, it is the fact that prosecutors have an outsized role in the determination of whether a juvenile will be tried as an adult. This procedural configuration is out of alignment with the purpose of the Code of Juvenile Justice, the current science related to juvenile brain development, and the best practices in sex offender treatment (Risk-Need-Responsivity or R-N-R model). Family Court judges have the requisite knowledge and experience in juvenile matters, and the professional objectivity, to immunize them from the social and political pressure attendant to matters that involve unpopular issues or communities—such as sexual offending by juveniles. Prosecutors do not.

Unfortunately, judges sitting in the Family Courts are trapped in a conflicted system that is often at odds with itself. For example, the anomalous procedure of “prosecutorial waiver” prioritizes efficiency, prosecution and punishment, whereas the guiding principle of the Juvenile Code is to advance the best interest of the juvenile through rehabilitation. Family Court judges are torn between the Juvenile Code's attempts to benefit society by trying to salvage a juvenile offender's life—even the life of a juvenile who has committed a sex crime—and the waiver procedure's attempt to quickly push the juvenile into an adult courtroom. The result of the conflict between the substantive purpose of the Juvenile Code and the procedural anomaly of prosecutorial waiver is that the very judges who strive, are the ones who struggle.

The cases in question (State in the Interest of E.R.M., A-0533-18, App. Div. June 17, 2019, and State in the Interest of G.M.C., A-0223-18, App. Div. June 14, 2019) involved 16-year-old boys accused of sexually inappropriate conduct that, if committed by an adult, would constitute serious sex crimes. Both cases involved experienced Family Court judges who, after evidentiary hearings, denied the state's application to waive the juveniles to criminal court to be prosecuted as adults. Both judges produced decisions that made various comments about the factual circumstances of the cases, comments the judges believed warranted keeping the cases within the juvenile justice system. Missed in the ensuing public outcry was the fact that neither judge found that the juveniles should not be held accountable for their criminal conduct. Rather, the decision to keep the cases in the juvenile system meant that their misconduct would be answered with an appropriate balance of rehabilitation and punishment that ensured the juveniles would both suffer consequences as well as obtain treatment for their behavior.

The state appealed, raising only one issue: The judge erred in denying the waiver motion because, in the process, he substituted his judgment for that of the prosecutor. The Appellate Division agreed and accordingly reversed the trial judges' decision and remanded the matter to the Family Court. However, the appellate decision raises three important questions: Why does the prosecutor make the waiver decision? Why is the judge's review of the prosecutor's decision limited to an abuse of discretion standard? And, why is the rehabilitation of the juvenile not considered? The Attorney General guidelines for waiver proceeding provides the answers:

The first separate juvenile court in New Jersey was established in 1929. The primary goal of the juvenile courts at that time was to rehabilitate the juvenile. … However, as the juvenile justice system developed, offender accountability and public protection have become equally important goals. In 1983, the legislature created presumptive waiver for involuntary waiver of Chart 1 offenses. In these cases, waiver is presumed because the prosecutor need not show that the nature and circumstances of the charge or the prior record of the juvenile are sufficiently serious that the interest of the public requires waiver.

The new amendments to NJS 2A: 4A have gone one step further by eliminating rehabilitation hearings for offenders, age 16 and over, who are charged with the most serious offenses under the act. In effect, it has created a group of offenders subject to “prosecutorial” waiver. For these offenders, the authority to make the waiver decision has been transferred from the judiciary to the county prosecutor. For this group of cases, the legislature intended to “ease conditions” for a trial of certain juvenile offenders as adults.

The legislative purpose of the statutory amendments appears to be functional: “For these cases, long delays, previously occasioned by rehabilitation hearings and the concomitant need to await expert reports, will be eliminated.” Ibid. In actuality, the evolution of the waiver provisions in New Jersey was part of a national movement to get tough on crime: “The legislature's action in expediting waiver for this group of cases mirrors a national trend …. [T]his amendment brings New Jersey in line with the majority of other States by creating a subgroup of cases which are subject to prosecutorial waiver.” Ibid.  The national movement that eliminated the “rehabilitation defense” from juvenile waiver proceedings was the same discredited initiative that has led to mass incarceration by measures that deprive judges of discretion—such as mandatory minimum sentences, and “three-strikes” laws.

Ultimately, prosecutorial waiver presents a conflict of interest for the prosecutor, as well as a conflict of purpose between the substantive provisions of the Juvenile Code and the procedural provisions of the waiver proceeding.

The prosecutor is conflicted because he is now cast in the role of both prosecutor and judge, when his proper role is exclusively that of “chief law enforcement officer” of the county. N.J.S.A. 52-17B-98. “Assistant prosecutors have the primary duty of presenting cases to the grand jury and representing the State at trial and on appeal.” Matter of Elig.oOf Certain Assist. Prosc. to Transfer to PFRS, 301 N.J. Super. 551 (App. Div. 1997). Prosecutors represent the State, and they are the juvenile's adversary in a quasi-adversarial system. Granting State lawyers the authority to decide which court shall have jurisdiction of a matter destroys the equal footing which adversaries in the judicial system are supposed to enjoy, tipping the scales of justice decidedly in favor of the table at which the State sits.

As problematic as the procedural conflict of interest is, the conflict of purpose between the Juvenile Justice Code and the waiver statute, as currently enacted, is a greater threat. This is because it compromises both the quality of juvenile justice and public safety. As noted in the Attorney General's guidelines, the primary purpose of the juvenile justice system was to advance the best interests of the juvenile. Such a purpose is not in conflict with broader public policy concerns such as public safety. Indeed, policies and practices that protect the interests of the juvenile (such as personal safety, education, rehabilitation, inculcation of moral values and standards, developmental maturation, socialization and empathic reasoning) increase public safety. In contrast, the provision of the waiver statute that grants the State virtually unchecked authority to decide whether a juvenile's life is worth saving (through rehabilitation and treatment) or worth destroying (by the crushing weight of the adult criminal justice system), cannot be reconciled with either the interests of the juvenile, or even the interests of society. The result is a surrender of the substantive provisions of the juvenile system to a procedural mechanism of expediency and retribution that serves neither the rehabilitation interests of the juvenile nor the public safety interests of society.

Ironically, the public commentary on this situation has ignored both the substantive and procedural issues presented. Rather, news articles and public outrage have focused on individual statements taken in isolation, such as “the juvenile came from a good family and had good test scores,” implying that the judge improperly considered GMC's privileged background or academic accomplishments to excuse the alleged sexually inappropriate conduct. This implication is incorrect. Individualized assessment of the juvenile and his background is relevant and appropriate—even in the present waiver context—and does not foreclose subsequent judicial determinations as to accountability and consequences.

Next week I will discuss the importance of those judicial determinations and why judicial independence is threatened by the type of response we've seen to these two cases.

James H. Maynard is managing member of Maynard Law Office LLC, in Morristown, a concentrated practice, dedicated to sex offense law.