When the blended sentencing law HEA 1108 was enacted (see IC 35-50-2-17 and IC 31-30-4-1), it was hailed as “a positive step forward”. If sentenced under the new laws, the child would be sentenced as an adult, but placed at the Indiana Department of Correction, Division of Youth Services to receive rehabilitative services. Prior to the child’s nineteenth birthday, the sentencing court would hold a review hearing to determine whether the child has been rehabilitated and whether the original sentence should be modified or imposed as originally ordered. The new question is: will there be an unintended consequence of the new laws with more children be “waived” to criminal court?
Prior to HEA 1108, when considering jurisdiction, the choice for the juvenile court judge was clear — keep the child in juvenile court or move the child to the criminal court with the accompanying adult sentencing options.
As of July 1, 2013, the juvenile court may now contemplate moving the child to criminal court with the idea or even assumption that the criminal court judge would apply the blended sentencing law. The flaw is that there is nothing that requires the criminal court to apply the law to a child who is waived from juvenile court, and there is nothing that requires that the juvenile court enter findings that the waiver decision was based in part on the blended sentencing option. The linkage between the two courts does not exist. Once under the criminal court’s jurisdiction, the criminal court judge may impose any sentence proposed by plea agreement or that is reasonable under the law following a trial or a mercy plea.
The “canary in the coal mine” that HEA 1108 may result in an increase in waivers of juvenile court jurisdiction has been coming by way of anecdotal stories from child advocates of a sudden spike in waived children. These advocates fear that this is the first sign that juvenile court judges may be less willing to keep children in juvenile court after allegedly committing a heinous offense or repetitive offenses now that HEA 1108 is an option.
The laws have been in effect for only a month and no real data is available. Only time will tell.