An Act To Clarify the Right to Counsel for Juveniles and Improve Due Process for Juveniles
Maine Legislature, Session 129, LD 1684
Committee: Judiciary
Sponsors: MORALES, MILLETT, BAILEY, GATTINE, HARNETT, MADIGAN, MOONEN, O'NEIL, PLUECKER
Amends: 15 MRSA §3101, 15 MRSA §3306, 15 MRSA §3313, 15 MRSA §3314, 15 MRSA §3315, 15 MRSA §3316, 15 MRSA §3402, 15 MRSA §3405, 34-A MRSA §3805

Legislative Document
No. 1684
H.P. 1208
House of Representatives, May 7, 2019
An Act To Clarify the Right to Counsel for Juveniles and Improve 
Due Process for Juveniles
Reference to the Committee on Judiciary suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative MORALES of South Portland.
Cosponsored by Senator MILLETT of Cumberland and
Representatives: BAILEY of Saco, GATTINE of Westbrook, HARNETT of Gardiner, 
MADIGAN of Waterville, McDONALD of Stonington, MOONEN of Portland, O'NEIL of 
Saco, PLUECKER of Warren.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  15 MRSA §3101, sub-§2, as amended by PL 2017, c. 127, §1, is further 
amended to read:
2.  Juvenile Court jurisdiction. 
A.  The Juvenile Court shall have has exclusive original jurisdiction, subject to 
waiver of jurisdiction as provided in subsection 4, of proceedings in which a juvenile 
who has attained 12 years of age is alleged to have committed a juvenile crime, as 
defined in section 3103.
C.  Juvenile Courts have jurisdiction over all petitions brought under Title 34-A, 
chapter 9, subchapter 7 pertaining to juveniles who have been adjudicated as having 
committed juvenile crimes in other states, but who are found within the territorial 
jurisdiction of the State.
D.  Juvenile Courts shall have exclusive original jurisdiction over proceedings in 
which an adult is alleged to have committed a juvenile crime after having attained 12 
years of age and before attaining his 18th birthday 18 years of age. For purposes of 
such proceedings such an adult shall be is considered a juvenile.
E.  Juvenile Courts shall have jurisdiction concurrent with the District Courts over 
petitions for emancipation brought under section 3506-A.
F.  A juvenile who has not attained 12 years of age at the time of the juvenile's 
alleged crime is not subject to the jurisdiction of the Juvenile Court and may not be 
prosecuted for any juvenile crime.
Sec. 2.  15 MRSA §3306, sub-§1, as amended by PL 1977, c. 664, §25, is 
repealed and the following enacted in its place:
1.  Notice and appointment of counsel.  The provisions of this subsection govern a 
juvenile's right to counsel.
A.  At a juvenile's first appearance before the court, the court shall fully advise the 
juvenile and the parents, guardian or legal custodian of the juvenile of their 
constitutional and legal rights, including the juvenile's right to be represented by 
counsel at every stage of the proceedings.  At every subsequent appearance before the 
court, the court shall fully advise the juvenile of the juvenile's right to be represented 
by counsel.
B.  If the juvenile requests an attorney and the juvenile and the juvenile's parents, 
guardian or legal custodian are found to be without sufficient financial means, the 
court shall appoint counsel for the juvenile pursuant to the Maine Rules of Unified 
Criminal Procedure, Rule 44.
C.  The court, at any stage of the proceedings, may appoint counsel without being 
requested to pursuant to paragraph B if the court considers representation by counsel 
necessary to protect the interests of the juvenile.
D.  Counsel appointed by the court to represent a juvenile shall continue to represent 
the juvenile throughout all proceedings, until the court's jurisdiction over the juvenile 
has ended or counsel is relieved by order of the court.
E.  For purposes of this subsection, "proceedings" includes, but is not limited to, the 
following proceedings when conducted at any time during a juvenile's commitment to 
a secure institution through the conclusion of the juvenile's term of probation and 
until the court's jurisdiction over the juvenile has ended:
(1)  Detention, adjudicatory and dispositional hearings; and
(2)  Post-dispositional proceedings, including appeal, post-conviction review and 
judicial review of commitment.
Sec. 3.  15 MRSA §3313, as amended by PL 1995, c. 690, §5, is further amended 
to read:
§3313.  Mandatory criteria for imposing an institutional disposition
1.  Standard.  The court may not issue an order of disposition that involves 
commitment for any juvenile who has not attained 14 years of age.  The court may not 
issue an order of disposition that involves commitment for a juvenile who has attained 14 
years of age who has been adjudicated of a juvenile crime that would constitute a Class D 
or Class E crime unless, based upon both the written agreement of the parties and a court 
finding, the facts and circumstances of the underlying criminal episode giving rise to the 
Class D or Class E adjudication generated probable cause to believe the juvenile had 
committed a juvenile crime that would constitute a Class A, Class B or Class C crime in 
the course of that criminal episode.  The court shall may not enter an order of disposition 
for a juvenile who has attained 14 years of age and who has been adjudicated as having 
committed a juvenile crime without by imposing placement in a secure institution as 
disposition unless, having regard to the nature and circumstances of the crime and the 
history, character and condition of the juvenile, it finds the State provides and the court 
finds by clear and convincing evidence that his the juvenile's confinement is necessary for 
protection of the public because: 
A.  There is undue demonstrable risk that, during the period of a suspended sentence 
or probation, the juvenile will commit another crime;
B.  The juvenile is in need of correctional treatment that can be provided most 
effectively only by his commitment to an a secure institution; or
C.  A lesser sentence disposition that does not involve commitment to a secure 
institution will depreciate the seriousness of the juvenile's conduct.
2.  Additional consideration.  The court shall explicitly, on the record and in open 
court, weigh the following grounds, while not controlling the discretion of the court, shall 
be accorded weight against ordering placement in a secure institution: 
A.  The juvenile's conduct neither caused nor threatened serious harm;
B.  The juvenile did not contemplate or was incapable of contemplating that his the 
juvenile's conduct would cause or threaten serious harm;
C.  The juvenile acted under a strong provocation;
D.  There were substantial grounds tending to excuse or justify the juvenile's conduct, 
though failing to establish a defense;
E.  The victim of the juvenile's conduct induced or facilitated its commission;
F.  The juvenile has made or has agreed to make restitution to the victim of his 
conduct for the damage or injury that the victim sustained;
G.  The juvenile has not previously been adjudicated to have committed a juvenile 
crime or has led a law-abiding life for a substantial period of time prior to the conduct 
which that formed the basis for the present adjudication;
H.  The juvenile's conduct was the result of circumstances unlikely to recur;
I.  The character and attitudes of the juvenile indicate that he the juvenile is unlikely 
to commit another juvenile crime;
J.  The juvenile is particularly likely to respond affirmatively to probation; and
K.  The confinement of the juvenile would entail excessive hardship to himself the 
juvenile or his the juvenile's dependents.; and
L.  Secure confinement in a juvenile facility demonstrably risks harm to the juvenile 
because of:
(1)  Conditions at the facility with respect to the juvenile's safety, health and 
welfare;
(2)  Inability of the facility to timely provide all medically necessary and 
rehabilitative medical and mental health care to the juvenile;
(3)  Inability of the facility to provide the education to which the juvenile is 
entitled, including under an individualized education plan pursuant to Title 20-A, 
chapter 303; or
(4)  Any other reason related to the juvenile's best interests.
3.  Statement of reasons accompanying disposition of commitment for juveniles.  
In a disposition for a juvenile crime that if committed by an adult would be murder or a 
Class A, Class B or Class C crime, the court shall state on the record and in open court 
the court's reasons for ordering or not ordering placement of the juvenile in a secure 
institution.  Failure to state these reasons, even if a disposition that includes commitment 
is agreed to by the juvenile and the State, is grounds for appeal as a per se abuse of 
discretion as an indication that the court has not weighed independently the propriety of 
imposing a disposition that involves any period of commitment to a secure institution.
Sec. 4.  15 MRSA §3314, sub-§1, ¶F, as amended by PL 2001, c. 696, §4, is 
further amended to read:
F.  The If the juvenile has attained 14 years of age, the court may commit the juvenile 
to a Department of Corrections juvenile correctional facility.  Whenever a juvenile is 
committed to a Department of Corrections juvenile correctional facility, the court 
shall determine whether reasonable efforts have been made to prevent or eliminate 
the need for removal of the juvenile from the juvenile's home or that no reasonable 
efforts are necessary because of the existence of an aggravating factor as defined in 
Title 22, section 4002, subsection 1-B, and whether continuation in the juvenile's 
home would be contrary to the welfare of the juvenile.  This determination does not 
affect whether the court orders a commitment to a Department of Corrections 
juvenile correctional facility, which continues to be governed by section 3313.
Sec. 5.  15 MRSA §3314, sub-§1, ¶H, as amended by PL 2007, c. 96, §5, is 
further amended to read:
H.  The If the juvenile has attained 14 years of age, the court may order the juvenile 
to serve a period of confinement that may not exceed 30 days, with or without an 
underlying suspended disposition of commitment to a Department of Corrections 
juvenile correctional facility, which confinement must be served concurrently with 
any other period of confinement previously imposed and not fully discharged or 
imposed on the same date but may be served intermittently as the court may order 
and must be ordered served in a facility approved or operated by the Department of 
Corrections exclusively for juveniles.  The court may order such a disposition to be 
served as a part of and with a period of probation that is subject to such provisions of 
Title 17-A, section 1204 as the court may order and that must be administered 
pursuant to Title 34-A, chapter 5, subchapter 4.  Revocation of probation is governed 
by the procedure contained in subsection 2.  Any disposition under this paragraph is 
subject to Title 17-A, section 1253, subsection 2 except that a statement is not 
required to be furnished and the day-for-day deduction must be determined by the 
facility, but not to Title 17-A, section 1253, subsection 2, paragraph A, or subsection 
3-B, 4, 5, 8, 9 or 10.  For purposes of calculating the commencement of the period of 
confinement, credit is accorded only for the portion of the first day for which the 
juvenile is actually confined; the juvenile may not be released until the juvenile has 
served the full term of hours or days imposed by the court.  When a juvenile is 
committed for a period of confinement, the court shall determine whether reasonable 
efforts have been made to prevent or eliminate the need for removal of the juvenile 
from the juvenile's home or that reasonable efforts are not necessary because of the 
existence of an aggravating factor as defined in Title 22, section 4002, subsection 1-B 
and whether continuation in the juvenile's home would be contrary to the welfare of 
the juvenile.  This determination does not affect whether the court orders a period of 
confinement pursuant to section 3313.
Sec. 6.  15 MRSA §3315, as amended by PL 2013, c. 234, §10, is further amended 
to read:
§3315.  Right to periodic review
1.  Right to review for dispositions that do not involve commitment.  Every 
disposition pursuant to section 3314 and or 3318-B, other than unconditional discharge or 
commitment or possible commitment to a secure institution, must be reviewed not less 
than once in every 12 6 months until the juvenile is discharged or has attained 21 years of 
age, whichever occurs earlier. The review must be made by a representative of the 
Department of Corrections unless the juvenile has been committed to the custody of the 
Commissioner of Health and Human Services, in which case such review must be made 
by a representative of the Department of Health and Human Services. A report of the 
review must be made in writing to the juvenile and the juvenile's parents, guardian or 
legal custodian. A copy of the report must be forwarded to the program or programs that 
were reviewed, and the department whose personnel made the review shall retain a copy 
of the report in their files. The written report must be prepared in accordance with 
subsection 2.  When a juvenile is placed in the custody of the Commissioner of Health 
and Human Services, reviews and permanency planning hearings must be conducted in 
accordance with Title 22, section 4038.  Title 22, sections 4005, 4039 and 4041 also 
apply.
1-A.  Judicial review of juvenile in custody of Department of Corrections.  When 
a juvenile is placed in the custody of the Department of Corrections, the court shall grant 
a petition for review filed by the juvenile, the parents, guardian or legal custodian of the 
juvenile or the department; the court may also initiate a review on its own.  Prior to the 
review, the department shall provide notice of the review to the court and to the juvenile 
and the juvenile's parents, guardian or legal custodian but not to a parent whose parental 
rights have been terminated pursuant to Title 22, chapter 1071, subchapter 6.
The court may convene a prehearing conference to clarify any disputed issues and to 
review the possibility of a less restrictive alternative to incarceration.  The court shall 
consider the report made by the department in accordance with subsection 1, hear 
evidence and consider the reason for the original disposition made under sections 3313 
and 3314 and efforts made by the parties since then.
After a hearing or by agreement, the court shall make written findings that determine:
A.  The safety of the juvenile's placement;
B.  The continuing necessity for and appropriateness of the juvenile's placement;
C.  The extent of the involved parties' compliance with the juvenile's individualized 
plan and the extent of the juvenile's progress with that plan;
D.  A likely date when the juvenile may be placed in a less restrictive alternative or at 
home; and
E.  If the juvenile is at least 16 years of age, whether that juvenile is receiving 
instructions to aid that juvenile to live independently.
The court may make any other order it is authorized to make pursuant to section 3314.
2.  Contents of review. The written report of each periodic review shall must contain 
the following information:
A.  A brief description of the services, with the dates and types of service for each 
provider, provided to the juvenile during the period preceding the review and the 
results of those services;
B.  An The current well-being of the juvenile and an individualized plan for the 
provision of services to the juvenile for the next period;
C.  A statement showing that the plan imposes the least restricting restrictive 
alternative consistent with adequate care of the juvenile and protection of the 
community, including a statement specifying which less restrictive alternatives were 
considered and at what time and the reasons why those alternatives were rejected; and
D.  A certification that the services recommended are available and will be afforded 
to the juvenile.
3.  Court review of determination to remove juvenile from home.  Whenever a 
court makes a determination pursuant to section 3314, subsection 1, paragraph F or 
section 3314, subsection 2 that reasonable efforts have been made to prevent or eliminate 
the need for removal of the juvenile from the juvenile's home or that no reasonable efforts 
are necessary because of the existence of an aggravating factor as defined in Title 22, 
section 4002, subsection 1-B and that continuation in the juvenile's home would be 
contrary to the welfare of the juvenile, that determination must be reviewed by the court 
not less than once every 12 months until the juvenile is discharged or no longer residing 
outside the juvenile's home or attains 18 years of age.  This review does not affect a 
juvenile's commitment to a Department of Corrections juvenile correctional facility 
pursuant to section 3313.
4.  Court review of determination to impose a disposition involving commitment.  
Whenever a court imposes a disposition that involves commitment to a secure institution 
for a juvenile pursuant to section 3314, subsection 1, paragraph F, or a suspended 
sentence and an order of probation that could result in a disposition of commitment to a 
secure institution pursuant to section 3314, subsection 2, no later than 90 days following 
the imposition of the disposition, and at least every 90 days thereafter, the juvenile must 
appear before the court with the juvenile's parents, guardian or legal custodian to review 
the disposition.  The Department of Corrections shall provide notice of the reviews and 
file a copy of each notice with the court prior to the review hearing. The court may 
convene a prehearing conference to clarify the disputed issues and review the possibility 
of alternative dispositions specified in section 3314.  The court shall determine, in light of 
the factors set forth in subsections 1-A and 2, section 3002 and section 3313, whether 
further confinement in a secure institution demonstrably risks harm to the juvenile. The 
State and any witnesses considered necessary by the State, the juvenile or the court shall 
appear before the court in order for the court to review whether further commitment of 
the juvenile is in the juvenile's best interests.  The court may also receive evidence 
regarding the juvenile's commitment from reports, affidavits and other evidence that is 
sufficiently reliable.  If requested by the juvenile, the juvenile's parent, guardian or legal 
custodian or another party, the court shall require that the person who wrote the report or 
prepared the material appear as a witness and be subject to examination by the court and 
any party. In the absence of the request, the court may order the person who prepared the 
report or other material to testify if the court finds that the interests of justice so require.  
A juvenile or other party who is indigent is entitled to appointment of counsel pursuant to 
section 3306, subsection 1 for a review conducted pursuant to this subsection.
Sec. 7.  15 MRSA §3316, sub-§2, ¶A, as repealed and replaced by PL 1999, c. 
127, Pt. B, §6, is amended to read:
A.  A commitment of a juvenile to a Department of Corrections juvenile corrections 
facility pursuant to section 3314 must be for an indeterminate period not to extend 
beyond the juvenile's 18th birthday unless the court expressly further limits or 
extends the indeterminate commitment, as long as the court does not limit the 
commitment to less than one year nor extend the commitment beyond a juvenile's 
21st birthday and as long as an order does not result in a commitment of less than one 
year, unless the commitment is for an indeterminate period not to extend beyond the 
juvenile's 21st birthday.  Nothing in this Part may be construed to prohibit the 
provision to a juvenile following the expiration of the juvenile's term of commitment 
of services voluntarily accepted by the juvenile and the juvenile's parents, guardian or 
legal custodian if the juvenile is not emancipated; except that these services may not 
be extended beyond the juvenile's 21st birthday.
Sec. 8.  15 MRSA §3402, sub-§1, as amended by PL 2015, c. 100, §3, is further 
amended to read:
1.  Matters for appeal.  Appeals of the following matters may be taken from the 
juvenile court to the Supreme Judicial Court by a party specified in subsection 2:
A.  An adjudication, as long as the appeal is taken after an order of disposition;
B.  An order of disposition, or of any subsequent order modifying disposition, for an 
abuse of discretion; and
D.  A detention order entered pursuant to section 3203-A, subsection 5 or any refusal 
to alter a detention order upon petition of the juvenile pursuant to section 3203-A, 
subsection 11, for abuse of discretion, provided that the.  The appeal must be handled 
expeditiously.; and
H.  A judicial review decision, pursuant to section 3315, for an abuse of discretion.  
The appeal must be handled expeditiously.
Sec. 9.  15 MRSA §3405, sub-§2, as amended by PL 2015, c. 100, §5, is further 
amended to read:
2.  Record on appeals. In appeals taken pursuant to section 3402, subsection 1, 
paragraphs A and, B and H, review must be on the basis of the record of the proceedings 
in juvenile court. In the interest of justice, the Supreme Judicial Court may order that the 
record consist of: 
A.  The untranscribed sound recording of the proceedings; or
B.  An agreed or settled statement of facts with the consent of the parties.
Sec. 10.  34-A MRSA §3805, sub-§1, as amended by PL 1999, c. 583, §31, is 
further amended to read:
1.  Eligibility.  Only a juvenile, as defined in Title 15, section 3003, subsection 14, 
who is 11 14 years of age or older at the time of commitment may be committed to the 
facility pursuant to this subchapter and Title 15, Part 6.
SUMMARY
Currently, Maine has no minimum age at which a child may be prosecuted for a 
crime.  The purpose of this bill is to prevent children under 12 years of age from being 
prosecuted for crimes, to prevent children under 14 years of age from being incarcerated, 
to eliminate the current requirement that, if committed, a juvenile must be committed for 
at least a year and to prevent courts from imposing dispositions against juveniles that 
involve commitment without exhausting all other less restrictive alternatives.  The bill 
also mandates regular opportunities for judicial review of a juvenile’s commitment in 
addition to providing an appellate avenue for relief from unfavorable reviews.
The bill provides that if a court imposes a disposition that involves incarceration, the 
court must conduct a detailed analysis on the record explaining the rationale for the 
disposition. Such a disposition is authorized only if the court finds certain criteria by clear 
and convincing evidence. If the court commits a juvenile to a facility, the bill requires 
periodic judicial review of the incarceration to ensure that the rehabilitative purposes of 
incarceration are not being outweighed by the harm caused by incarceration.
The overarching goal of this bill is to ensure that fewer children are in the juvenile 
justice system and that, if and when they do become involved in the system, there is a 
presumption against incarceration and a requirement for the regular review of any 
commitment imposed, in order to minimize the harm that incarceration can cause 
children.
This bill amends the statute governing a juvenile's right to counsel to specify that the 
right to counsel attaches at the juvenile's initial appearance and continues until the court 
no longer has jurisdiction over the juvenile, including all post-dispositional hearings and 
during the time of commitment.  This bill also requires counsel appointed by the court to 
continue to represent the juvenile throughout all proceedings concerning the juvenile, 
unless relieved by the court.