CHAPTER 657

HOUSE BILL NO. 1156

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 10 AND TITLE 31 OF THE DELAWARE CODE RELATING TO MANDATORY COMMITMENT OF MINORS WHO HAVE BEEN ADJUDICATED DELINQUENT BY FAMILY COURT FOR HAVING COMMITED CERTAIN DESIGNATED ACTS.

Be it enacted by the General Assembly of the State of Delaware (two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Section 937, Chapter 9, Title 10, Delaware Code, by redesignating present subsections (c) and (d) of said Section as (d) and (e) respectively, and by adding a new subsection (c) to read as follows:

"(c) Subject to the provisions governing amendability pursuant to Section 938 of this Chapter, the court shall commit a delinquent child to the custody of the Department of Correction under such circumstances and for such periods of time as hereinafter provided:

(1) Where he has been once or more than once adjudicated delinquent for committing separate and distinct acts or courses of conduct not arising from the same transaction or occurrence, committed within any one-year period, which said acts, when aggregated, would constitute two offenses: designated as felonies under Subchapter 11, Chapter 5, Title 11; or attempts to commit any such felonies, or which would constitute burglaries in any degree involving a dwelling house pursuant to Subpart B, Subchapter III, Chapter 5, Title 11, or attempts thereof, or any combination thereof, then custody shall be awarded for one year;

(2) Where he is once or more than once adjudicated a delinquent based upon the commission of separate and distinct acts or courses of conduct, not arising from the same transaction or occurrence, committed within any such three-year period, which would' when aggregated, constitute three or more offenses: designated as felonies were he an adult and tried as such pursuant to Subchapter 11, Chapter 5, Title 11, or attempts to commit any felonies; or which would constitute burglaries in any degree involving a dwelling house pursuant to Subpart B, Subchapter 111, Chapter 5, Title 11; or attempts to commit any such burglaries or any combination thereof, then custody shall be awarded for three years;

(0) Where he is once or more than once adjudicated a delinquent based upon the commission of separate and distinct acts or courses of conduct, not arising from the same transaction or occurrence, committed within any one-year period, which, if he were an adult and tried as such, would constitute, when aggregated, three or more offenses of burglary not involving a dwelling house pursuant to Subpart B, Subchapter III of Chapter 5, Title 11, then custody shall be awarded for one year; provided that such period of commitment shall also apply where the adjudication or adjudications of delinquency are based upon the commission of two said burglaries and one additional act or course of conduct, not arising out of the same transaction or occurrence, committed within any one-year period which, if' he were an adult and tried as such, would constitute a felony pursuant to Subchapter 11 of Chapter 5, Title 11;

(0) Where he has been committed upon adjudication as a delinquent in accordance with subsection (c) (1), (2) and (3) and he is subsequently adjudicated a delinquent based upon the commission of an act, which if he were an adult and tried as such, would constitute the offense of escape pursuant to Subpart E, Subchapter VI of Chapter 5, Title 11, then custody shall be awarded for a period of six months, said period of commitment to run consecutive ly with any other mandatory period of commitment imposed pursuant to this section;

(5) Where he has been committed upon adjudication as a delinquent in accordance with subsection (c) (1), (2) and (3) or (4), of this Section, and he is subsequently charged with the commission of an act, which, if he were an adult and tried as such would constitute the offense of escape pursuant to Subpart E, Subchapter VI of Chapter 5, Title 11, or if he is absent from custody in violation of any administrative pass or leave granted to him by the Department and approved by the Court, and further, if he is charged with the commission of an act or course of conduct during the period of his escape which, if he were an adult and tried as such, would constitute a felony pursuant to Subchapter II of Chapter 5, Title 11, or Subchapter III of Chapter 5, Title 11, then the Court shall conduct a hearing to determine whether the child is amenable to the rehabilitative processes of the Court pursuant to Section 938(c) of this Chapter. If the Court should determine that the child is amenable to the rehabilitative processes of the Court, and, at subsequent hearing, the child is adjudicated a delinquent based upon his commission of an act or course of conduct constituting a felony after escape or during an unauthorized absence, then he shall be committed to such facility established for youthful offenders in accordance with Section 6526 of Title 11 for not less than three years; said period of commitment to commence on the date when custody is so awarded.

(6) Where a child is adjudicated a delinquent based upon the conditions outlined in (c) (1), (2), (3) (4) or (5) of this Section, the Court may, at the time oir. sente- .ing or upon subsequent hearing initiated by the filing of a petition by the Department of its duly authorized representative, due notice of which has been given to the Attorney General, suspend all of the commitment in excess of six months, when it determines by a preponderance of the evidence before it that such lesser period of commitment; (1) would best serve the needs of the child; and (2) would pose no probable threat to property or person upon his earlier release. In the event that the Court should determine that all or a portion of the commitment in excess of six months should be suspended as hereinbefore provided, then it shall set forth with particularity the reasons relied upon in so doing in its order or disposition.

(7) Nothing hereinbefore provided shall be construed as prohibiting the Court, upon petition and recommendation of the Department, from securing for any child otherwise subject to the mandatory commitment provisions of this Section such care and treatment as it deems necessary for diagnosed conditions of mental illness or retardation, provided that the provisions for such treatment shall not deter the Court from imposing such mandatory term of commitment as is applicable under this Section unless the same shall be sooner suspended in accordance with (c) (6) of this Section.

(8) As used in (c) of this Section, 'child' shall mean any juvenile who is charged with an act or course of conduct occurring on or after his fourteenth birthday which causes the provisions of (c) of this Section to be applicable.

(9) A copy of each and every order or disposition of the Court respecting a child committed pursuant to this Section shall be made available to the victim or victims of the delinquent acts giving rise to the commitment upon written request to the Court therefor.

Section 2. Amend Section 938(c), Subchapter III,

Title 10, Delaware Code by inserting after "motion" in the third line thereof, and before the word "defer," the following:

". . . or, if a child is charged in accordance with Section 937(c) (5) and the act or course of conduct occurred after the child had attained his fourteenth birthday, the Court shall . . ."

Section 3. Amend Section 5106. Chapter 51, Title 31, Delaware Code by adding thereto a new paragraph to be designated paragraph (9) to read as follows:

"(9) Place a juvenile committed to its custody pursuant to Section 937(c)(4), Title 10, in a facility providing the maximum available security."

Section 4. Amend Section 5107, Chapter 51, Title 31, Delaware Code by striking said section in its entirety and substituting in lieu thereof a new Section 5107 to read as follows:

"Section 5107. Commitments to the Department.

The Family Court of the State may commit to the custody of the Department any juvenile who is subject to the jurisdiction of such Court and who is delinquent, as that term is defined in Section 901, Title 10; provided, however, that where the adjudication is pursuant to Section 937(c) of Title 10 the juvenile shall be committed for the designated statutory period. The Department shall accept the custody of any juvenile so committed to it."

Section 5. Amend Section 5108, Chapter 51, Title 31, Delaware Code by striking said section in its entirety and substituting in lieu thereof a new Section 5108 to read as follows:

"Section 5108. Power to Discharge or Release.

(a) Except as to a delinquent child committed for a mandatory period pursuant to Section 937(c) of Title 10, the Department may at its discretion discharge finally any juvenile committed to its custody if the Department shall determine: (1) such discharge is in the best interest of the juvenile; and (2) that the juvenile does not pose a probable threat to property or person, provided that a certificate of discharge, setting forth grounds establishing compliance with these conditions of release, shall be provided ten (10) calendar days prior to the date of release to the Judge of Family Court who originally signed the commitment order, or, in his absence, to the Chief Judge of said Court.

(b) No person shall be retained in the legal custody of the Department beyond his or her eighteenth birthday; provided, however, that any delinquent child who is seventeen years of age or older but less than eighteen years of age who has been committed to the custody of the Department may remain in said custody for one full year; provided, further, that any delinquent child who is committed to the custody of the Department for a mandatory period pursuant to Section 937(c) of Title 10 shall be transferred into or retained in the custody of a facility established pursuant to Section 6526 of Title 11 for youthful offenders upon reaching the age of eighteen where he shall remain until the completion of the mandatory period of custody.

(c) No child committed to the custody of the Department under §937(c) of Title 10 shall be released on pass or on extended leave for any purpose except in accordance with the procedure set forth in subsection (a) of this Section. Upon receipt of notification that the Department intends to extend such privileges to a child so committed, the Court may deny, or may impose such reasonable terms and conditions as it deems necessary, upon said temporary release."

Section 6. The provisions of this Act shall be effective with respect to acts of courses of conduct which occur after its passage by the General Assembly and execution by the Governor. No adjudication of delinquency occurring prior thereto shall be relied upon in determining appropriate disposition of a delinquent youth pursuant to Section 937, Title 10 of the Delaware Code.

Approved July 30, 1976