In re A.D.T. – Johnson – Affirmed – Wyandotte ( 2017 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 114,834
In the Matter of A.D.T.
SYLLABUS BY THE COURT
1.
In an extended juvenile jurisdiction proceeding, the district court imposes one or
more juvenile sentences listed in K.S.A. 2015 Supp. 38-2361(a) and an adult criminal
sentence.
2.
The adult sentence in an extended juvenile jurisdiction proceeding shall be stayed
on the condition that the juvenile offender not violate the provisions of the juvenile
sentence and not commit a new offense.
3.
In an extended juvenile jurisdiction proceeding, a juvenile violates the provisions
of his or her juvenile sentence by violating the terms of conditional release. The
consequences of a juvenile violating the provisions of his or her conditional release in an
extended juvenile jurisdiction proceeding are set forth in K.S.A. 2015 Supp. 38-2364(b).
4.
Under K.S.A. 2015 Supp. 38-2364(b), a district court has the authority to revoke
the stay of the adult sentence in an extended juvenile jurisdiction proceeding, without
prior notice to the juvenile or the juvenile's attorney of record, when it appears that the
juvenile has violated the conditions of his or her conditional release. If the juvenile
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challenges the reasons for revocation, a hearing is required on whether a preponderance
of the evidence establishes the violation.
5.
If a district court finds by a preponderance of the evidence that a juvenile on
conditional release in an extended juvenile jurisdiction proceeding has violated the
conditions of release, K.S.A. 2015 Supp. 38-2364(b) requires the termination of juvenile
court jurisdiction and the mandatory execution of the adult sentence, unless the State and
the defense agree to modify that sentence.
6.
An appellate court cannot invalidate a statute, otherwise constitutional, just
because the members of the court might consider the provisions of the law to be unwise,
unfair, and/or unjust.
Appeal from Wyandotte District Court; DELIA M. YORK, judge. Opinion filed June 2, 2017.
Affirmed.
Debera A. Erickson, of Kansas City, argued the cause and was on the brief for appellant.
Mollie R. Hill, assistant district attorney, argued the cause, and Jerome A. Gorman, district
attorney, was with her on the brief for appellee.
The opinion of the court was delivered by
JOHNSON, J.: In an extended juvenile jurisdiction prosecution (EJJP), the juvenile,
A.D.T., pled guilty to first-degree premediated murder. He completed the incarceration
portion of his juvenile sentence and was placed on conditional release. After A.D.T.
admitted to violating his conditional release by twice testing positive for drugs, the
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district court revoked A.D.T.'s juvenile sentence and imposed his adult sentence of life
imprisonment. On direct appeal to this court, A.D.T. argues that it was manifestly unjust
for the district court to impose his adult sentence for the positive urinalysis (UA) tests
because he did not receive the recommended substance abuse treatment while in the
juvenile correctional facility and because he did not receive proper notice as to what
conduct would cause the court to invoke his adult sentence. Addressing only the issues
raised in this direct appeal, we affirm the district court.
FACTUAL AND PROCEDURAL OVERVIEW
In April 2008, the State commenced a proceeding under the Revised Kansas
Juvenile Justice Code, K.S.A. 2007 Supp. 38-2301 et seq., charging 13-year-old A.D.T.
with first-degree premediated murder and criminal possession of a firearm. District Judge
Wesley K. Griffin designated the proceedings as an EJJP under K.S.A. 2007 Supp. 38-
2347(f)(2).
In November 2009, A.D.T. pleaded guilty to first-degree premediated murder. The
district court sentenced A.D.T., as a violent I juvenile offender under K.S.A. 2007 Supp.
38-2369(a)(1)(A), to the juvenile correctional facility until age 22 1/2 years old and a
term of aftercare until his 23rd birthday. The court also ordered that A.D.T. undergo a
substance abuse evaluation and follow any recommendations. For A.D.T.'s adult
sentence, which would be statutorily stayed conditioned upon successful completion of
the juvenile sentence, the court ordered a life sentence without the possibility of parole
for 25 years.
A.D.T. arrived at the Kansas Juvenile Correctional Complex (KJCC) in December
2009. Because of time already served, A.D.T. was scheduled to be released in July 2013.
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KJCC staff completed a program plan and progress report addressing A.D.T.'s
substance abuse assessment during his incarceration. A.D.T.'s test results on the
Substance Abuse Subtle Screening Inventory (SASSI) indicated a "low probability" for
substance abuse or dependence disorder. But because A.D.T. self-reported past drug use
and admitted to using drugs during the commission of his crime, the report recommended
that A.D.T. be referred to the Pathways substance abuse program. A.D.T. remained on
the waiting list for Pathways throughout his juvenile incarceration. The final update in the
report clarified, "Due to time constraints, lack of counselors/programming, youth
education credits interfering with programming time, and [A.D.T.'s] low [Youth Level of
Service (YLS)] scores[,] [A.D.T.] will not complete substance abuse treatment at KJCC
before his July 19, 2013[,] release date." The report recommended that A.D.T. attend
community support systems such as Narcotics Anonymous (NA) and Alcoholics
Anonymous (AA) upon his release and submit to random UA tests. In addition, if A.D.T.
was found to be using substances on release, he was to be assessed for substance abuse
and follow any outpatient treatment recommendations.
Upon A.D.T.'s release in July 2013, the district court found that A.D.T. had been
reintegrated and could be returned home. The permanency plan order noted that the
district court's previous orders "shall continue in full force and effect."
That same month, A.D.T. entered into a contract explaining the conditions of his
release while under community corrections supervision and the sanctions for any
violation. The conditional release contract required A.D.T., inter alia, to "refrain from the
purchase, possession or consumption of drugs." The contract clarified that if A.D.T.
violated the conditions, he could be subjected to internal sanctions or he could be
returned to the district court. If A.D.T. was returned to the district court, the contract
provided that the district court may (1) impose 2 days in a sanction house for a positive
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UA test, (2) resentence A.D.T. to a new juvenile disposition, or (3) impose one or more
of a combination of sanctions.
On January 23, 2015, A.D.T., now 20 years old, submitted to a UA test that was
positive for cocaine. A.D.T.'s intensive supervision officer (ISO), Christy Blagg,
sanctioned A.D.T. internally by referring him to Mirror Inc. for a substance abuse
assessment.
Mirror Inc. assessed A.D.T. on April 8, 2015. A.D.T reported that he lived in a
drug-free home environment, that he did not use drugs or alcohol, and that he tried drugs
around the age of 13 but had not used drugs or alcohol in the past 7 years, including the
5 years of his incarceration. A.D.T. denied having used cocaine before, despite his
positive UA test. The Mirror Inc. report stated, "It is somewhat difficult to fully
determine, but at the same time questionable as to whether or not [A.D.T.] has any drug
addiction problems; given that he had spent the majority of his teenage years in a
Juvenile Detention Correctional Center." The report concluded, "Based on [American
Society of Addiction Medicine, (ASAM)] criteria and with his SASSI test result finding
that he has a Low Probability Of Having A Substance Abuse Disorder; this assessor is
recommending No Treatment needed at this period of time." The month following his
assessment, on May 14, 2015, A.D.T. had a second positive UA test for cocaine.
The matter was referred to the prosecutor's office, which filed a motion with
District Judge Griffin seeking to revoke A.D.T.'s juvenile sentence and execute the adult
sentence, alleging that A.D.T. violated conditional release by testing positive for cocaine
twice. The judge entered an ex parte order finding cause to lift the stay of execution of
A.D.T.'s adult sentence. The ex parte order for execution of adult sentence notified
A.D.T. of his right to challenge the reasons for the revocation of the stay of execution and
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his right to a hearing. A.D.T. promptly filed a motion with the judge requesting an
evidentiary hearing.
In August 2015, the matter was reassigned to District Judge Delia York, who held
an evidentiary hearing in November 2015, at which A.D.T. and ISO Blagg testified.
A.D.T. admitted that he had two positive UA tests, but he claimed that after his
assessment at Mirror Inc. for the first positive UA, he was told he would be reevaluated
for treatment if he had another positive test. A.D.T. acknowledged having discussed with
ISO Blagg the consequences of a second positive UA test, but he contended that ISO
Blagg never communicated that A.D.T. would have to serve a life sentence. Instead, he
claimed, the ISO told him "she didn't know because she never had anybody else on
EJJP."
In contrast, ISO Blagg testified that she had told A.D.T. after his first positive UA
that she had gone against her colleagues' wishes by asking for a substance abuse
assessment, instead of turning the case over to the State for further court proceedings.
The ISO explained to A.D.T. that this "was his chance; and if he tested positive again,
that we would have to turn it over to the district attorney's office, and we wouldn't have a
choice at that time." ISO Blagg related that on four occasions after A.D.T.'s first positive
UA, including after his assessment at Mirror Inc., she had told A.D.T. that he was not
allowed to use drugs and had discussed the ramifications of his EJJP sentence. The ISO
testified that she explicitly told A.D.T. "'[y]ou don't want to do this again, 'cause it'll be
twenty-five years of your life.'"
In argument, counsel for A.D.T. conceded that A.D.T. did not dispute that he had
two positive UA tests. However, counsel argued that the district court should not revoke
A.D.T.'s juvenile sentence because A.D.T. did not receive the treatment at the KJCC that
the court-ordered substance abuse evaluation recommended. Counsel asserted that this
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lack of service "caused detriment" to A.D.T. by not giving him the tools that he needed to
not use drugs when released back into the community. Counsel opined that revoking
A.D.T.'s EJJP sentence would be "essentially punishing [A.D.T.] for the fact that we
didn't give him the services that he should have had while in the correctional facility."
Counsel also pointed to A.D.T.'s testimony that he was advised that a second positive UA
test would result in a reassessment.
The State responded that A.D.T.'s stipulation to two positive UA tests provided the
necessary evidence to revoke A.D.T.'s juvenile sentence. The State also argued that ISO
Blagg had warned A.D.T. of the consequences for a conditional release violation and that
whether A.D.T. received substance abuse treatment at the KJCC was irrelevant on the
question of whether he violated conditional release.
Judge York found, by a preponderance of the evidence, that A.D.T. violated the
terms of his signed conditional release contract by failing two drug tests; and that ISO
Blagg had made A.D.T. aware of the consequences for a second positive drug test. The
judge concluded that the controlling statute, K.S.A. 2015 Supp. 38-2364(b), required the
revocation of A.D.T.'s juvenile sentence and imposition of his adult sentence upon the
court's finding of the conditional release violations. The court observed that the statutes
make no exception for technical violations or substance abuse, "even though the court
may feel like there should be," and the district court had no choice at that point but to
affirm Judge Griffin's revocation of the juvenile sentence and commit A.D.T. to serve his
adult sentence.
A.D.T. timely appealed. This court has jurisdiction under K.S.A. 2015 Supp. 22-
3601(b) (off-grid crime; maximum sentence of life imprisonment imposed).
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VIOLATING CONDITIONAL RELEASE IN AN
EXTENDED JURISDICTION JUVENILE PROSECUTION
A.D.T. argues "what has occurred in this case has caused a manifest injustice to
his constitutional rights." Specifically, A.D.T. alleges his "rights were violated when he
did not receive notice as to what would cause the adult sentence to be implemented and
when he did not receive services/treatment ordered by the court when he was a child."
The State responds that the district court strictly complied with the provisions of K.S.A.
2015 Supp. 38-2364(b) governing the revocation of A.D.T.'s juvenile sentence and the
invocation of his adult sentence.
Standard of Review/Rules of Statutory Construction
Before imposing the adult sentence in an EJJP, the district court is statutorily
required to find a violation of the conditions of the juvenile sentence by a preponderance
of the evidence. See K.S.A. 2015 Supp. 38-2364(b). Because this is a question of fact,
this court's review is limited to determining whether substantial competent evidence
supports the district court's finding. In re E.J.D., 301 Kan. 790, 794, 348 P.3d 512 (2015).
Substantial evidence refers to legal and relevant evidence that a reasonable person could
accept as being adequate to support a conclusion. State v. Talkington, 301 Kan. 453, 461,
345 P.3d 258 (2015).
Here, the district court also determined that the relevant statutory provisions
precluded the exercise of discretion on disposition, once the court found a conditional
release violation. Our review of the district court's statutory interpretation is unlimited
and de novo. In re E.J.D., 301 Kan. at 792.
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In conducting our unlimited review of statutes, we apply certain rules of
construction. The most fundamental rule is that the intent of the legislature governs if that
intent can be ascertained. In re E.J.D., 301 Kan. at 793. The court first attempts to
ascertain legislative intent through the statutory language enacted, giving common words
their ordinary meanings. When a statute is plain and unambiguous, we will refrain from
reading something into the statute that is not readily found in its words. In other words,
where there is no ambiguity, we need not resort to any further statutory construction
rules. In re A.M.M.-H., 300 Kan. 532, 535, 331 P.3d 775 (2014).
Analysis
In an EJJP proceeding, the district court imposes one or more juvenile sentences
listed in K.S.A. 2015 Supp. 38-2361(a) and an adult criminal sentence. The juvenile
commences serving the juvenile sentence, and the adult sentence "shall be stayed on the
condition that the juvenile offender not violate the provisions of the juvenile sentence and
not commit a new offense." K.S.A. 2015 Supp. 38-2364(a)(1)-(2). A juvenile violates the
provisions of his or her juvenile sentence by violating the terms of conditional release. In
re A.M.M.-H., 300 Kan. at 539. The consequences of violating conditional release are
found in K.S.A. 2015 Supp. 38-2364(b). See In re A.M.M.-H., 300 Kan. at 538 (K.S.A.
2015 Supp. 38-2364 applies in cases alleging violations of a conditional release contract
in an EJJP). K.S.A. 2015 Supp. 38-2364(b) provides:
''When it appears that a person sentenced as an extended jurisdiction juvenile has
violated one or more conditions of the juvenile sentence or is alleged to have committed a
new offense, the court, without notice, may revoke the stay and juvenile sentence and
direct that the juvenile offender be immediately taken into custody and delivered to the
secretary of corrections pursuant to K.S.A. 2015 Supp. 21-6712, and amendments
thereto. The court shall notify the juvenile offender and such juvenile offender's attorney
of record, in writing by personal service, as provided in K.S.A. 60-303, and amendments
9
thereto, or certified mail, return receipt requested, of the reasons alleged to exist for
revocation of the stay of execution of the adult sentence. If the juvenile offender
challenges the reasons, the court shall hold a hearing on the issue at which the juvenile
offender is entitled to be heard and represented by counsel. After the hearing, if the court
finds by a preponderance of the evidence that the juvenile committed a new offense or
violated one or more conditions of the juvenile's sentence, the court shall revoke the
juvenile sentence and order the imposition of the adult sentence previously ordered
pursuant to subsection (a)(2) or, upon agreement of the county or district attorney and the
juvenile offender's attorney of record, the court may modify the adult sentence previously
ordered pursuant to subsection (a)(2). Upon such finding, the juvenile's extended
jurisdiction status is terminated, and juvenile court jurisdiction is terminated. The
ongoing jurisdiction for any adult sanction, other than the commitment to the department
of corrections, is with the adult court. The juvenile offender shall be credited for time
served in a juvenile correctional or detention facility on the juvenile sentence as service
on any authorized adult sanction.''
To paraphrase, K.S.A. 2015 Supp. 38-2364(b) gives the district court the authority
to revoke the stay of the adult sentence, without prior notice to the juvenile or the
juvenile's attorney of record, when it "appears" based on the allegations in the State's
motion to revoke that the juvenile has violated the conditions of conditional release. Once
the juvenile is served proper notice that his or her juvenile sentence has been revoked, the
district court must hold a hearing if the juvenile challenges the reasons for revocation.
After such a hearing, if the district court finds by a "preponderance of the evidence" that
the juvenile violated the conditions of conditional release, "K.S.A. [2015] Supp. 38-
2364(b) requires a mandatory execution of the adult sentence," unless the State and the
defense agree to modify that sentence. In re A.M.M.-H., 300 Kan. at 540. At that point,
the juvenile court's jurisdiction ends, and "[t]he ongoing jurisdiction for any adult
sanction, other than the commitment to the department of corrections, is with the adult
court." K.S.A. 2015 Supp. 38-2364(b).
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In this case, A.D.T. admitted to testing positive for cocaine on two occasions
while on conditional release. His conditional release contract required A.D.T. to "refrain
from the purchase, possession or consumption of drugs." Understandably, A.D.T. does
not attempt to argue that the evidence was insufficient to support the district court's
finding that a preponderance of the evidence established a juvenile sentence violation.
Just as obviously, the State did not agree to modify A.D.T.'s sentence after the court's
finding of a conditional release violation, and A.D.T. does not contend otherwise.
Statutorily, then, Judge York was correct in opining that she had no discretion to
modify Judge Griffin's revocation of A.D.T.'s juvenile sentence, but rather she was
required to execute A.D.T.'s adult sentence and transfer jurisdiction to the adult criminal
court. In short, the plain and unambiguous language of K.S.A. 2015 Supp. 38-2364(b)
mandated the result in this case. See In re A.M.M.-H., 300 Kan. at 540 (under plain
language of K.S.A. 2013 Supp. 38-2364, preponderance finding triggers automatic
termination of extended jurisdiction of juvenile court and endows adult court with
ongoing jurisdiction).
A.D.T. does not propose a different construction of K.S.A. 2015 Supp. 38-
2364(b). Likewise, although he makes a cursory mention of constitutional rights, A.D.T.
does not present an argument as to how or why any provision of K.S.A. 2015 Supp. 38-
2364(b) is unconstitutional. See State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828
(2015) (point incidentally raised but not argued or supported with authority is deemed
abandoned).
Instead, A.D.T. essentially argues that the application of the statutory provisions in
his circumstances created a situation that was so unfair and shocking to the conscience
that he should be granted relief on the basis of manifest injustice. He then cites to a
number of cases where this court granted relief upon claims of manifest injustice. But all
11
of those cases are inapposite; none applied the concept of manifest injustice to a
nondiscretionary, statutorily required judicial order where the constitutionality of the
underlying statute was not being challenged.
On the other hand, we have precedent acknowledging that we cannot invalidate a
law, otherwise constitutional, just because the members of this court might consider the
provisions of the law to be unwise, unfair, and/or unjust. See, e.g., State ex rel. Tomasic
v. Unified Gov't of Wyandotte County/Kansas City, 265 Kan. 779, 787-88, 962 P.2d 543
(1998) (propriety, wisdom, necessity, and expedience of legislation exclusively for
legislative determination). Moreover, on the claim of unfairness, Judge York explained to
A.D.T.: "You got an extra shot. You got an extra bite at the apple. Because Ms. Blagg, if
she would have reported that initial cocaine test to the District Attorney's Office, we
would have seen that motion to revoke in January."
A.D.T.'s complaint that he did not receive drug treatment while incarcerated in the
juvenile facility might well illustrate that an adverse consequence of underfunding the
juvenile facility might be the cost of providing a prison bed for the next quarter century.
But he does not explain what "right" the juvenile was denied when the drug treatment
was not provided, and we are unable to discern how that circumstance can trump the
plain language of K.S.A. 2015 Supp. 38-2364(b).
Perhaps we could charitably construe A.D.T.'s brief on appeal as raising a
constitutional due process of law issue when it asserts "that the respondents [sic] rights
were violated when he did not receive notice as to what would cause the adult sentence to
be implemented." But the facts do not support that argument. The district court
specifically found that ISO Blagg made A.D.T. aware of the consequences for a second
positive drug test. In other words, A.D.T. did, in fact, have fair notice and warning that, if
he failed another drug test, he was facing a hard 25 life sentence as an adult.
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In sum, upon the issues raised in this appeal, we must affirm the district court.
Affirmed.
***
ROSEN, J., concurring: I concur with the court's well-reasoned analysis and the
result in this case because I agree that A.D.T. does not present reversible error. However,
this case lays to rest any lingering doubt as to whether the evolution of our juvenile
justice system has "eroded the benevolent parens patriae character that distinguished it
from the adult criminal system." In re L.M., 286 Kan. 460, 469, 186 P.3d 164 (2008). In
fact, the extended jurisdiction juvenile prosecution (EJJP), as it functioned in this case,
provides less procedural safeguards and places a juvenile offender who violates terms of
conditional release in a more punitive posture than an adult offender facing the same
allegations.
I write separately to express my concern regarding the constitutionality of the
results dictated by the governing statute and the failure to provide A.D.T.'s substance
abuse treatment. Because A.D.T. did not raise these arguments, they may not serve as the
basis of our resolution in this case. However, I briefly note four areas that I believe
deserve comment: (1) the possibility that the EJJP sentence resulted in an Eighth
Amendment violation; (2) the possibility that the failure to provide substance abuse
treatment resulted in an Eighth Amendment violation; (3) the possibility that the failure
to provide substance abuse treatment resulted in a Fourteenth Amendment violation; and
(4) the possibility that the failure to provide substance abuse treatment necessitated
reconsideration of A.D.T.'s original sentence.
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First, I question whether EJJP withstands scrutiny under the Eighth Amendment to
our United States Constitution, at least in the case before us. At the time of the original
adjudication, the district judge here concluded that the State failed to rebut the
presumption of juvenile adjudication and instead ordered EJJP. As we stated in In re
D.D.M., 291 Kan. 883, 889, 249 P.3d 5 (2011), the judge's EJJP election "effected a
denial of the State's motion for adult prosecution."
Central to my concern is the potential motive behind the district court's decision to
deny adult prosecution. Both this court and our United States Supreme Court have
refused to uphold certain adult sanctions on juveniles to prevent a violation of the Eighth
Amendment with the imposition of cruel and unusual punishment. See Miller v.
Alabama, 567 U.S. 460, 470, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) (mandatory life
without parole sentences for juveniles violates the Eighth Amendment); Roper v.
Simmons, 543 U.S. 551, 575, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (Eighth
Amendment prohibits death penalty for juveniles); State v. Dull, 302 Kan. 32, 61, 351
P.3d 641 (2015), cert. denied 136 S. Ct. 1364 (2016) (mandatory lifetime postrelease
supervision categorically unconstitutional under Eighth Amendment).
While imprisonment without the possibility of parole, death sentences, and
lifetime registration may be appropriate for adult offenders, these sentences are
inappropriate for juveniles because the Eight Amendment's prohibition of cruel and
unusual punishment requires that "'punishment for crime should be graduated and
proportioned' to both the offender and the offense." (Emphasis added.) Miller v. Alabama,
567 U.S. 460, 469, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). It stands to reason that
when a judge declines to impose an adult sentence, he or she may do so for the very same
reason that this court and the United States Supreme Court have done so—to prevent the
imposition of a sentence that is not proportional to the offender or the offense.
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Assuming that the denial of adult prosecution here was in fact meant to avoid a
sentence that amounted to the cruel and unusual punishment of a 13-year-old offender, I
question how the adult sentence suddenly transformed into something constitutional
when A.D.T failed a drug test 7 years after the original offense. The original crime did
not, in the view of the district court, warrant a life sentence, but a technical violation
consisting of a remote, singular, nonviolent, noncriminal act somehow earned A.D.T. the
life sentence that was earlier inappropriate.
Of course, it may be the case that the judge denied adult prosecution for other
reasons. If so, then the imposition of the adult sentence upon A.D.T.'s violation may
withstand constitutional scrutiny under the Eighth Amendment. But I am troubled by the
result because that does not appear to be the situation before us. A.D.T. was only 13 at
the time of the offense and was under overwhelming peer pressure, characterized by the
district judge as being under "the influence of that older girl." The behavior was further
fueled by the consumption of a potent cocktail of intoxicating drugs—Ecstasy, alcohol,
and marijuana. This "older girl" whom A.D.T. was trying to impress not only supplied
these drugs, but also drove A.D.T. to and from the scene of the crime and ultimately
concealed the weapon utilized in the shooting. Under these facts, the question of whether
the sentence is proportional, especially given the judge's emphasis of the importance of
drug and alcohol treatment at A.D.T.'s sentencing, may merit further consideration.
Second, I am concerned that the failure to provide A.D.T. the substance abuse
treatment that was ordered by the judge further likens A.D.T.'s life sentence to cruel and
unusual punishment. The United States Supreme Court has ruled that, under the Eighth
Amendment, incarcerated adults are entitled to care for "serious medical needs." Estelle
v. Gamble, 429 U.S. 97, 103-04, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). While the
Supreme Court has held that detained adults do not have a "fundamental right" to
rehabilitative treatments, it has yet to decide whether denying substance abuse treatment
15
constitutes an Eighth Amendment violation, either in the case of an adult or a juvenile.
See Marshall v. United States, 414 U.S. 417, 421-22, 94 S. Ct. 700, 38 L. Ed. 2d 618
(1974).
Part of the consideration for denying adult prosecution in A.D.T.'s case was the
availability of rehabilitative treatments that would attend to A.D.T.'s substance abuse
issues. When, through the failures of our juvenile system, A.D.T. never received this
treatment, he later triggered his adult sentence by engaging in the very behavior that the
treatment was meant to address. Considering the debilitating nature of substance abuse
and the parens patriae role of the State, the government may have a responsibility to
attend to this serious medical need when it commits a juvenile offender to its custody—
especially when a judge denies adult prosecution because the juvenile will benefit from
rehabilitation programs in the juvenile system that are specifically designed to meet an
express need.
Third, the denial of any substance abuse treatment may also have run afoul of
A.D.T.'s due process rights under the Fourteenth Amendment. "At the least, due process
requires that the nature and duration of commitment bear some reasonable relation to the
purpose for which the individual is committed." Jackson v. Indiana, 406 U.S. 715, 738,
92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972).
Before juvenile courts existed, young offenders were often incarcerated among
adult populations. Abrams, Lessons from Juvenile Justice History in the United States,
2004 J. Inst. Just. Int'l Stud. 7, 8 (2004). With the turn of the nineteenth century came a
shift in public opinion regarding these juvenile offenders. Abrams at 12. The country
began to regard juveniles as developmentally different than adults and therefore entitled
to different treatment when entangled in the legal system. Abrams at 12. The shift
resulted in juvenile courts designed to rehabilitate children rather than punish youthful
16
offenders. Note, Rights and Rehabilitation in the Juvenile Courts, 67 Colum. L. Rev. 281,
281 (1967). Today, our Kansas Juvenile Justice Code is built upon the same policy; one
of its enumerated goals is to improve the ability of juvenile offenders "to live more
productively and responsibly in the community." K.S.A. 2015 Supp. 38-2301. Chief
Justice McFarland discussed this policy in her dissent in In re L.M., writing that the
"rehabilitative focus that has distinguished the juvenile system from the punitive,
retributive adult criminal system" not only exists, but in her opinion, "is still very much
alive." 286 Kan. at 479.
It seems that any sentence rendered under this code should therefore, at a
minimum, serve a rehabilitative purpose if it is to afford the offender his or her due
process rights. In A.D.T.'s case, the judge denied adult prosecution, in part because the
juvenile system offered rehabilitative treatment to which A.D.T. would be amenable. The
denial of this treatment stripped A.D.T. of his right to a sentence that was reasonably
related to its purpose of rehabilitation. Under these circumstances, A.D.T. may have been
denied his due process rights.
Finally, I question whether the failure to provide the substance abuse treatment
presented new evidence that could serve as the basis for reconsideration of the judge's
decision to subject A.D.T. to EJJP. While nothing from the record specifically indicates
why the judge chose EJJP instead of juvenile adjudication, we do know that the
availability of rehabilitative treatment in the juvenile system factored into the judge's
general considerations. It is conceivable that the judge elected EJJP over juvenile
adjudication because the adult sentence would work as a deterrent to keep A.D.T. from
violating the terms of his juvenile sentence while the rehabilitative programs would
ensure that A.D.T. would never actually have to serve that adult sentence. In truth, we
cannot know the exact motivations behind the judge's decisions. But we can know that
his decision may have been different had the judge been afforded the correct
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information—that A.D.T. would never receive the substance abuse treatment that the
judge understood would be part of A.D.T.'s original sentence and rehabilitative plan. In
light of the fact that the judge made his decisions based on incorrect facts, perhaps
A.D.T. is entitled to some relief.
In closing, I note that our legislature recently made changes to the governing
statute that, had they been enacted earlier, would have had great effect on the disposition
of this case. The new changes prohibit adult prosecution unless a juvenile is 14 or older,
which may also eliminate EJJP for juveniles under 14. K.S.A. 2016 Supp. 38-2347(a)(1).
Furthermore, the new EJJP statute makes it more difficult to revoke a juvenile sentence
under EJJP—now, the execution of an adult sentence is stayed so long as the juvenile
substantially complies with the conditions of the juvenile sentence. K.S.A. 2016 Supp.
38-2364(a)(2). The statute to which A.D.T. was subject allowed a judge to immediately
revoke the juvenile sentence upon a single technical violation. K.S.A. 2015 Supp. 38-
2364(a)(2). Finally, if the judge concludes that the juvenile failed to substantially comply
with juvenile conditions that were ordered under EJJP, the new code allows the judge to
reevaluate the original adult sentence before it is imposed, so long as the parties agree
with that course of action. K.S.A. 2016 Supp. 38-2364(b).
Thus, under the new statutory scheme, A.D.T. would either have been exempt
from the adult sentence in the first place or his juvenile sentence would never have been
revoked, since it is unlikely that a couple of dirty UAs would constitute a failure to
"substantially comply" with his juvenile conditions. Or, had A.D.T. still been subject to
EJJP and the adult sentence, the judge would have had the authority to reconsider the
terms of that adult sentence before its imposition.
Perhaps these changes are a result of our legislature's consideration of the very
concerns I outline today. Unfortunately, the legislative history does not reveal whether
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our legislators amended our code in an effort to ensure adherence to our Constitution. But
even if these changes were prompted by very different motivators, the fact that our new
statutory scheme makes it unlikely that A.D.T. would now be serving a life sentence
offers support for the theory that some kind of injustice has occurred.
For all of these reasons, I concur in the result but question whether this result
would stand if challenged under different arguments.
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