3.181 Duration of Disposition and Type of Sanction-Delinquency All conduct subject to the jurisdiction of the family court over delinquency should be classified for the purpose of disposition into categories that reflect substantial differences in the seriousness of the offense. Such categories should be few in number. The maximum term that may be imposed for conduct falling within each category should be specified. The types of sanctions that may be imposed for conduct subject to the jurisdiction of the family court over delinquency should be grouped into categories that are few in number and reflect differences in the degree of restraint on personal liberty. Sources: Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Dispositions, Standard 1.2 (tentative draft, 1977) [hereinafter cited as IJA/ABA, Disposition]; see also National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standards 14.9 and 14.13 (1976) [hereinafter cited as Report of the Task Force]; Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Juvenile Delinquency and Sanctions, Standards 5.1-5.2 (tentative draft, 1977) [hereinafter cited as IJA/ABA, Sanctions]. Commentary The degree of dispositional discretion that should be accorded family court judges is one of the major debates in juvenile justice today. Approximately 80 percent of the states permit the juvenile or family court to exercise jurisdiction over a juvenile found delinquent until he/she reaches twenty-one, regardless of the offense. See National Task Force to Develop Standards and Goals for Juvenile Justice and Delinquency Prevention, Comparative Analysis of Standards and State Practices: Juvenile Dispositions and Corrections, 28 (1975). This dispositional scheme is often based on the view that the delinquent act is an indication that the youth is in need of “treatment" and that it is in the youth's best interest for such treatment to continue as long as it is necessary. Most of these states leave the decision of when juveniles should be released from custody or supervision to the public or private agency to which they have been committed. A number of other states provide that the court may commit a juvenile for an indeterminate period up to a statutory maximum, which is the same for most offenses. Many of these also provide for extensions of the dispositional period. See National Task Force, supra; see also Wisconsin Council on Criminal Justice Special Study Committee on Criminal Justice Standards and Goals, Juvenile Justice Standards and Goals, Standards 14.1(k)-(m) (2d draft, 1975). National Conference of Commissioners on Uniform State Laws, Uniform Juvenile Court Act, Section 36(b) (1968); U.S. Department of Health, Education and Welfare, Model Act for Family Courts, Section 37 (1975). On the other hand, some commentators have recently proposed a return to a "just desserts" model of mandatory sentences, at least for adult offenders, although the degree of restraint to be imposed would still be decided by the judge. See., e.g., D. Fogel, We Are the Living Proof: The Justice Model for Corrections (1975). Proponents of indeterminate sentencing suggest that such sentences facilitate rehabilitation by motivating the offender with the reward of early release, place the “treatment” and release decisions in the hands of qualified professionals, protect society from hardcore youthful offenders, deter nondelinquent youth, and reduce unnecessary incarceration. See E. B. Prettyman, Jr., "The Indeterminate Sentence and the Right to Treatment," 7 Am. Crim. L. Rev. 15-17 (1972). Opponents of indeterminate sentences cite studies that indicate that release or parole decisions are more often based on institutional classificatory schemes and offender characteristics than on individualized progress toward rehabilitation; that offenders, both juvenile and adult, perceive the release or parole decision as made without valid or consistent criteria; and that the indeterminate sentence is open to abuse both by inmates who can "con" their way into early release and by institutional personnel who may wrongfully or arbitrarily withhold release. Id. at 17-21. This standard, together with Standard 3.182, follows the lead of the National Advisory Committee on Criminal Justice Standards and Goals, Corrections, 575 (1973); the IJA/ABA, Dispositions, supra; IJA/ABA, Sanctions, supra; and the Report of the Task Force, supra, by taking a middle course between these conflicting views. These standards recommend that: a. Delinquent offenses be grouped into categories according to the relative degree of seriousness; b. Maximum dispositional time periods be set for each category; (e.g., for offenses in category 1, the term of disposition shall not exceed X years); c. The type of sanctions be categorized according to the extent to which they restrain the juvenile's liberty (e.g, category (a) out-of-home custody, category (b) probation); but authorized or sentences of imprisonment for more than five years. Class (3) should include criminal offenses with maximum authorized sentences of imprisonment for more than one year. Class (4) juvenile offenses should include criminal offenses with a maximum authorized sentence of imprisonment for more than six months. And, Class (5) juvenile offenses should include criminal offenses with maximum authorized sentences of imprisonment for six months or less. IJA/ABA, Sanctions, supra at Standard 5.2 the IJA/ABA Joint Commission recommended maximum durations for each class of juvenile offenses as in Table 3.1. d. The responsibility for determining the length of disposition within the statutory maximum, the degree of restraint that should be imposed, and the type of program to which the juvenile should be assigned should be retained by the family court judge. In this way, increased equity and consistency in the disposition of delinquency cases can be achieved without sacrificing the family Table 3.1. IJA/ABA Joint Commission Recommended court's ability to fashion a dispositional plan on the basis of the mitigating and aggravating factors of the particular case and the juvenile's needs and interests. See Standard 3.182. To assure that the equity achieved at the dispositional stage is maintained and the intent of the dispositional determination carried out and to increase the visibility and accountability of dispositional decision making, Standards 3.189, 3.1810, and 4.71-4.73 recommend a greater role for the family court than under many current statutes. Reductions in the duration of disposition must be ordered by the family court. See Standard 3.189. The same is true for transferring a juvenile from a nonresidential to a residential program. See Standards 3.1810 and 4.33. The supervisory agency may shift juveniles between individual programs of the type specified by the court, but any change in the degree of restraint imposed is subject to court review. See Standards, 3.182, 3.189, 4.71, and 4.72. In addition, transfers of juveniles from a facility operated by the juvenile corrections to one maintained by a mental health or drug abuse agency require judicial approval following a court hearing. See Standard 4.73 Unlike the provisions approved by the IJA/ABA Joint Commission and the Report of the Task Force, supra, this standard does not recommend any particular set of categories or maximum terms. Although the National Advisory Committee agreed that the length of dispositions in delinquency cases should never exceed those that an adult could receive for the same conduct, it concluded that the current state of knowledge does not provide a basis for determining which of the classifications that have been proposed is the most appropriate. Each state should decide what are the exact dispositional time limits on the basis of its own needs, problems, and priorities. The IJA/ABA Joint Commission and Task Force proposals are summarized as illustrations of the differing approaches that have been taken on these issues. The IJA/ABA Joint Commission adopted provisions calling for the division of juvenile offenses into five classes based on the maximum sentence that can be imposed on adults following conviction for similar conduct. Specifically, Class (1) juvenile offenses should include criminal offenses for which the maximum authorized sentence is death or imprisonment for more than twenty years. Class (2) juvenile offenses should include criminal offenses with maximum Maximum Durations for Custodial and Noncustodial Sanctions Maximum Duration if Maximum Duration if Noncustodial Sanction in Imposed 36 months Custodial Sanction Class is Imposed 1 24 months 2 12 months 24 months 3 6 months 18 months 4 5 *Confinement in a secure facility only if the juvenile has a prior record-i.e., adjudication for a class (1), (2), or (3) offense committed within twenty-four months of the commission of the current offense, or adjudication of three class (4) or (5) offenses, at least one of which was committed within twelve months of the commission of the current offense. †Confinement only in a nonsecure facility and only if the juvenile has a prior record as defined above. Source: IJA/ABA, Sanctions, supra at Standard 7.2. The IJA/ABA standards also suggest that the types of sanctions be divided into three broad categories: nominal, conditional, and custodial. Nominal dispositions include reprimand and release and suspended dispositions. Conditional dispositions include fines, restitution, community service, supervision by a probation officer, day custody programs, and required attendance at educational, vocational, and counseling programs. Custodial dispositions include placement in secure and nonsecure facilities and custody on a continuous or intermittent basis-i.e., only at night, on weekends, or during vacations. IJA/ABA, Dispositions, supra at Standard 3.2 The Report of the Task Force, supra, proposed four classes of delinquent acts: Class I to include conduct that would be a misdemeanor if committed by an adult; Class II to include crimes against property that would be a felony if committed by an adult; Class III to include crimes against persons and Class II offenses if the juvenile has a prior adjudication for a Class II offense; and Class IV to include acts that if committed by an adult would be punishable by death or imprisonment for over twenty years. The maximum duration for dispositions for each class is as shown in Table 3.2. 3.182 Criteria for Dispositional DecisionsDelinquency In determining the type of sanction to be imposed following adjudication of a delinquency petition and the duration of that sanction within the statutorily prescribed maximum, the family court should select the least restrictive category and time period consistent with the seriousness of the offense, the juvenile's role in that offense, and the juvenile's age and prior record. After determining the degree of restraint and the duration of the disposition to be imposed, the court should select the type of program or services to be offered on the basis of the juvenile's needs and interests. In no case should a dispositional order or enforcement thereof allow confinement or committment of a juvenile adjudicated delinquent in a facility in which he/she would have regular contact with adults accused or convicted of a criminal offense. Source: Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Dispositions, Standards 2.1 and 2.2 (tentative draft, 1977) [hereinafter cited as IJA/ABA, Dispositions]; National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standard 14.15 (1976) [hereinafter cited as Report of the Task Force]; 42 N.S.C. 5633(a)(13)(Supp. 1979). Commentary In establishing maximum sentences for categories of offenses, it is anticipated that the legislature will take into account the harm caused or risked in a typical case. However, no code can articulate the infinite variations of circumstances and characteristics involved in a particular offense. Hence, the standard recognizes that family courts should have discretion to select the actual disposition to be imposed in an individual case. The standard endorses the procedure adopted by the IJA/ABA, Dispositions, supra, and the Report of the Task Force, supra, under which the family court judge first determines the minimum degree of restraint and the minimum term within the statutorily set maximum necessary to satisfy society's interests in protection, deterrence, and equity, and then selects, within these bounds, the type of program that best fits the juvenile's needs and interests. This division reflects the multiple purposes that dispositions serve. The decision on the length of disposition and degree of restraint required precedes the determination of the services or program to be provided in order to encourage provision on a full range of services and programs at all level of restraint and to avoid basing custodial decisions on service needs. The standard contemplates that the family court judge will designate the type of program (e.g., foster care, vocational training, or drug treatment), and that the correctional agency will select the specific home, facility, or service to which the juvenile will be directed and develop a more detailed service program plan. Consistent with the standards on intake, the Report of the Task Force, supra, and IJA/ABA, Dispositions, supra and the recommendation of the National Advisory Committee on Criminal Justice Standards and Goals, Corrections (1973), and other commentators, see, e.g., D. Fogel, We Are the Living Proof: The Justice Model for Corrections (1975), among others, this provision establishes a preference for use of the "least restrictive alternative" that is appropriate. This would require the judge to consider and reject the least drastic category of sanctions before considering the next most severe category. Hence, continuous confinement in a secure facility would be "a last resort reserved only for the most . . . serious offenses and repetitive offenders," IJA/ABA, Dispositions, supra at Standard 3.3(e) (ii); Report of the Task Force, supra. Fourt objective criteria-seriousness of the offense, the juvenile's role in that offense, and the juvenile's age and prior record are provided to guide the dispositional decision and promote consistency. Many current statutes and models provide little assistance or direction to judges faced with the difficult task of balancing the concerns of society and the needs of the juvenile. See, e.g., National Conference of Commissioners on Uniform State Laws, Uniform Juvenile Court Act, Section 31 (1968); Department of Health, Education and Welfare, Model Act for Family Courts, Section 34 (1975). The four criteria recommended in the standard are intended to promote dispositional consistency and provide a basis for explanation, comparison, and review of dispositional decisons. See Standards 3.189 and 3.191. Definitions of each of these appear in the Commentary to Standard 3.143. Finally in accord with the Juvenile Justice and Delinquency Prevention Act, the standard would prohibit placement of a |