Due Process Rights May Be Triggered By Potential Revocation
The failure of a transfer of supervision may cause the sending states to conclude that the juvenile should be retaken. Pursuant to ICJ Rule 5-103(3), “The decision of the sending state to retake a juvenile shall be conclusive and not reviewable within the receiving state.” Furthermore, pursuant to ICJ Rule 5-103(3)(b), if “(T)he Form VI, Application for Services and Waiver, has the appropriate signatures; no further court procedures will be required for the juvenile’s return.” Therefore, it is clear that no due process hearing is required by the Compact or the ICJ Rules.
Nonetheless, constitutional due process considerations outlined by the U.S. Supreme Court may be triggered in some cases. It is important to emphasize that there may be a distinction between retaking that may result in revocation and retaking that will not result in revocation of the juvenile’s probation/parole.
Where the retaking of a juvenile may result in revocation of conditional release by the sending state, some courts may take additional measures to address basic due process considerations that are the foundation of the Supreme Court’s decisions in Morrissey, supra., Gagnon, supra., In re Gault, supra, and the ICJ Rules. In some cases, probable cause and other due process considerations are addressed during a detention hearing, arraignment, or other initial hearing.
As discussed in Section 4.1 supra, juveniles who are adjudicated delinquent have limited rights. Nonetheless, several U.S. Supreme Court cases may affect the process for retaking of juveniles whose transfers of supervision have failed due to violating the terms and conditions of their supervision in the same manner as these principles have been applied to adult offenders who have violated the conditions of their probation or parole. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (parolee entitled to revocation hearing); Gagnon v. Scarpelli, 411 U.S. 778, 782-83 (1973) (probationer entitled to revocation hearing); Carchman v. Nash, 473 U.S. 716, 725-26 (1985) (probation-violation charge results in a probation-revocation hearing to determine if the conditions of probation should be modified or the probationer should be resentenced; probationer entitled to less than the full panoply of due process rights accorded at a criminal trial).
While these cases arose in the adult context, the same considerations have been used to invoke similar constitutional protections for juveniles facing revocation of parole or probation. See, e.g., People ex rel. Silbert v. Cohen, 29 N.Y.S.2d 12 (1971). In State v. K.M., the Court, relying on Morrissey, held that a juvenile revocation hearing based upon a delinquent juveniles’ failure to comply with sex offender treatment protocols was “subject to minimum procedural due process protections and do not require the same kind of procedural safeguards as a criminal trial. Morrissey, 408 U.S. at 481-85.” No. 49566-0-II, 2018 WL 1108744, at *3 (Wash. Ct. App. Feb. 27, 2018); see also State v. Robinson 85 P.3d 376 (Wash. Ct. App. 2004).