A major change took place in Massachusetts criminal law yesterday, and fairly quietly at that.

For years, 17 year-old criminal defendants have been charged and tried as adults in Massachusetts. This law was enacted several years ago in the wake of several extremely violent and disturbing crimes committed by teenagers between the age of 16 and 18. At 18 years of age, all criminal defendants are treated as adults. At 16 years of age or younger, it’s fairly arguable that such offenders belong in the juvenile court system. But there was always a nagging question of how to treat 17 year-old defendants. Law-and-order advocates wanted to take a tough stance, and they were able to do just that for several years under this law in Massachusetts.

However, Governor Deval Patrick just changed all that, by signing into law a bill that will place all 17 year-old criminal defendants under the jurisdiction of the Massachusetts Juvenile Court Department, not the “regular” courts. What does this mean? It means that the maximum penalties for juvenile offenders are far less than if they were charged as adults – regardless of the particular offense, and regardless of the severity of the crime. This is true even if the underlying crimes were violent and terrible harm resulted. Supporters of the new law argue that thirty-nine other states as well as federal prosecutors use the age of 18 to determine adult criminal jurisdiction.

The new law requires that upon any convictions, 17-year-olds be placed into the custody of the Massachusetts Department of Youth Services, instead of being sentenced to a normal adult prison or jail. In cases of especially violent crimes, there is a provision that “allows”, juvenile court judges the discretion to impose an adult sentence. Note: This provision allows a juvenile court judge to impose and adult sentence – it does not require it, or even suggest it. As a Boston teenage criminal defense lawyer, I can assure people that 98% of juvenile court judges would not impose an adult jail or prison sentence on a juvenile defendant who has been convicted of a violent crime – even an especially violent crime. So that provision really exists in theory only.

Very importantly, the new law also means that17-year-old criminal defendants will not receive an adult criminal record. Supporters of the new law argue that this will help youthful offenders recover from mistakes made when young, and be able to make a fresh start on life.

Crime victims and their advocates say something very different. They argue, correctly, that a 17 year-old could violently assault and beat someone, rape someone, shoot or stab someone, burn someone’s house down, and commit any sort of violent crime – even, in theory, kill someone – and not do a day or “normal” jail or prison time. More so, they will never even have a criminal record. Again, the ‘safety valve’ provision in the law allowing a juvenile judge to impose and adult prison or jail sentence, is really little more than a paper tiger. As a Dedham juvenile defense lawyer, I predict that will almost never happen, since most juvenile judges are very liberal when it comes to juvenile offenders.

My opinion as a Dedham criminal defense lawyer? I think the previous law should have been amended, not eliminated, to keep17 year-old defendants in the regular court system, but allow judges the discretion to remand a 17 year-old defendant to the juvenile court, if the circumstances so warranted it. I think that would have held 17 year-old defendants accountable as a general rule, yet allow judges the ability to transfer them to juvenile court when the facts support it. That’s how the system should work – not the other way around, as Gov. Patrick has enacted. The presumption should be: Adult court first, with the possibility of having the case transferred “down” to juvenile court, depending on the background facts.

To those who disagree, I’d say this: Talk to someone who’s been violently attacked by a 17 year-old. And ask yourself how you’d feel if you saw that kid get a slap on the wrist, never do a day of jail time, and even walk away without any adult criminal record.

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