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

Last week, I briefly reviewed the purpose and history of the Code of Juvenile Justice, especially with regard to waiver to adult court, and how the virtually unchecked discretionary authority of prosecutors has created procedural and substantive conflicts in the juvenile justice system. This week, I will focus on the toxic impact of “prosecutorial waiver,” and also address why the outcry against two highly qualified and experienced judges is an under-informed misdirection of priorities that threatens the most important guarantee to justice for all—judicial independence.

For juveniles who commit Chart 1 offenses and were age 16 or older at the time of their offense, the “Rehabilitation provision” of the juvenile justice code has become essentially inapplicable, and no longer exists as an independent basis to deny waiver. However, several factors referenced within paragraph 3 of subsection c of the statutory waiver provisions suggest, or require, an assessment of the juvenile’s life and offense circumstances. In addition, Factor 2 of the Attorney General Guidelines specifically requires analysis of “the need for deterring the juvenile and others from violating the law ….” This factor demands a determination of whether prosecution as an adult is necessary for specific deterrence of the individual juvenile—a determination inextricably related to the likelihood that rehabilitation may be achieved within the juvenile context, such that adult prosecution and punishment is not necessary, or may even be counterproductive.

Therefore, the Family Court conducting an abuse-of-discretion review, in the waiver context, must decide if the prosecutor’s assessment of the need to prosecute the juvenile as an adult, in order to specifically deter him (and generally deter others), was based upon irrelevant information, did not consider relevant information, or failed to make an adequately articulated presentation of the issue.

The Attorney General Guidelines also contain factors that require evidentiary proceedings, and factual inquiry with reference to the juvenile’s life circumstances, such as Factor 1: The Nature of the Offense, specifically “the nature and circumstances of the act, and the role of the juvenile”; and Factor 5: Prior Record, specifically, “any involvement of the juvenile with a gang, and history of the use of physical violence toward others and extent to which the juvenile may present a substantial dangers to others.” Ibid.

Therefore, even after the elimination of the “rehabilitation provision” for the class of juveniles such as G.M.C., waiver hearings allow and require some assessment of the juvenile, his context, and his prospects for rehabilitation. Family background is directly in issue—as any psychologist will confirm—because the family context, support and participation are relevant (and important) in juvenile sex-offender treatment. Further, probation officers will attest that family context—the willingness and ability of the parents to supervise the juvenile—is relevant (and important) to any safety plan that is implemented to ensure that the juvenile does not reoffend while on probation and receiving treatment.

Family Court judges are on the front lines of a system tasked with the mission of ensuring that juveniles are treated fairly and according to their best interests. It is axiomatic that the only way to treat any litigant fairly is to be capable of objectivity and impartiality when applying law and finding facts. However, given the current social and political context, our juvenile justice system places Family Court judges in harm’s way.

The recent social and media outcry not only misunderstands the issues involved, but also jeopardizes the very impartiality that justice is founded upon. For example, the commentary on this matter has largely focused on a single sentence taken in isolation, rendering it susceptible to misinterpretation. In actuality, that statement was balanced by a substantial amount of additional information derived from several days of evidentiary hearings, and was embedded in the extensive analysis of a lengthy decision that weighed multiple issues—including the alleged inappropriate conduct.

Public and political backlash has become a familiar pattern related to sex offense matters, featuring criticism on the basis of social injustice or bias, and often calling for the removal of office holders, such as judges, politicians or other prominent persons.

Sen. Loretta Weinberg made the following statements: “I am glad to see that Judge James Troiano and Judge Marcia Silva were rebuked by the appeals courts, but this is not nearly enough.” “There is no place for this parochial, dismissive and sexist behavior in our justice system.” “Judge Troiano and Judge Silva should never again be given the privilege of presiding over a New Jersey court.” “We should also use these examples of alarming behavior in a way that curtails this conduct in the future.”

Such statements not only threaten the independence of the judiciary but are often based on insufficient information. Of course, when assessing the proper functioning of the judiciary it is appropriate to be vigilant to avoid the injustices that may flow from attitudes informed by elitism, sexism and racism. However, an appropriate respect for the integrity and independence of the judiciary is equally required. In all cases, conducting a proper inquiry before implying impropriety is a minimum standard of fairness. Here, a fair inquiry reveals that it was proper to consider information related to the juvenile’s background and the offense conduct, because it was relevant to the waiver hearing analysis.

A different criticism is found in the appellate division decision, based on a fairness-to-all premise. The appellate judges ask: Would juveniles who do not come from good families and have good test scores be condemned from withstanding waiver applications? The answer is, no. But, interestingly, the very same inquiry about the juveniles’ life and offense circumstances would have to be conducted—to determine what additional family support services, and conditions of probation supervision, would be required to supplement the lack of resources in the family and educational environment. In addition, waiver evaluations of a juvenile in a disadvantaged social context should address the other health and criminogenic issues commonly present where juveniles live in challenging conditions or underserved communities. The gold standard for sex offender treatment—the R-N-R model—requires just such an analysis. The judges were correct to consider the information that they did, because the protection of the public and the rehabilitation of the juvenile require the analysis of such issues at a waiver hearing, and whether the prosecutor adequately considered these issues is a central component of the waiver review—even by an abuse-of-discretion standard.

One is left to wonder if the outcry following the appellate division’s decision in E.R.M. and G.M.C. would have been as intense had these juveniles engaged in an aggravated physical assault versus an aggravated sexual assault. Or are the juvenile offenders in this case prejudiced by nearly three decades of misinformation about sex offending behavior in general, and juvenile development and recidivism in particular?

One of the premises underlying the waiver provisions for juveniles who are 16 or older at the time of the offense conduct, is that there may not be sufficient time for the juveniles to be rehabilitated by age 18. However, research into juvenile sex offense recidivism reveals that less than 3% commit a subsequent sex offense once adjudicated. Current research turns the presumption underlying the existing waiver provisions on its head. Juveniles adjudicated delinquent for a sex offense should be presumed to be capable of rehabilitation by age 18—because over 97% will not reoffend sexually.

To the extent that this research impacts the factor requiring consideration of the need for specific deterrence, a prosecutor’s failure to consider the data on the extremely low recidivism rates for juveniles with sex offense histories must be considered an abuse of discretion. Given those rates, and the fact that such juveniles are highly treatable in non-punitive settings, there is no realistic need for punishment to achieve general deterrence, and the need for specific deterrence can be adequately determined by the scientifically validated risk assessment instruments presently available.

Finally, research into the brain development and maturation of juveniles over the past 20 years has influenced several major U.S. Supreme Court decisions limiting the punitive sanctions the states may inflict on juveniles. Unfortunately, the waiver provisions giving prosecutors broad discretion to seek waiver to adult court predate the research that has demonstrated the amenability to rehabilitation of juvenile offenders. If prosecutors continue to remain ignorant of that research, and persist in refusing to even acknowledge its existence, a Family Court judge should be able to take judicial notice of the research as summarized in numerous court decisions (see, e.g., State in the Interest of C.K., 233 N.J. 44 (2018)), and find that a failure to consider such evidence and research constitutes an abuse of discretion.

The fundamental issue presented in this case is the tension produced by a procedural approach to juvenile waiver that places an interested party (the prosecutor) in the position of decision-maker, while reducing the objective party (the judge) to the role of limited reviewer. A deeper flaw, however, is the conflict between the overarching purpose of the juvenile justice system, which rightfully prioritizes the interest of the juvenile (and therefore, rehabilitation), versus the emphasis on punishment of the waiver provisions. This is an inversion of the traditional purpose of juvenile justice, one that has devolved into a closed system that perpetuates and promotes punitive sanctions based on misguided, and now discredited, social and political reactions to crime from two decades ago.

The solution is plain: Substantively, the juvenile waiver statute must be revised to comport with the overwhelming body of modern science-based information about juveniles, including brain development, low sex offense recidivism, extremely effective treatment programs and almost universal rehabilitation. Procedurally, all parties must be re-positioned to their normal roles in the judicial system—the interested parties must occupy the position of advocates, and the court must resume its role as impartial arbiter of the facts and interpreter of the proper application of the relevant law.

Legislators must challenge themselves to properly modernize and prioritize our juvenile waiver laws, before they may fairly criticize the judges whose burden it is to implement them.

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