CHAPTER 331

FORMERLY

HOUSE BILL NO. 849

AS AMENDED BY HOUSE AMENDMENTS NOS. 1 AND 2

AN ACT TO AMEND CHAPTER 9, SUBCHAPTER III, TITLE 10 OF THE DELAWARE CODE RELATING TO THE FAMILY COURT; MANDATING A MINIMUM OF SIX (6) MONTHS OF CONFINED INSTITUTIONAL TREATMENT FOR CERTAIN CHILDREN; PROVIDING FOR A HEARING BEFORE A JUDGE BEFORE RELEASE ON PASSES, EXTENDED LEAVE OR AFTERCARE RELEASE SUBSEQUENT TO MANDATORY INSTITUTIONAL TREATMENT; AND PROVIDING FOR AN AMENABILITY HEARING FOR LATER CHARGES OF A CHILD WHO HAS ALREADY RECEIVED MANDATORY INSTITUTIONAL TREATMENT.

WHEREAS, the general intention behind the enactment of a mandatory commitment law for juveniles adjudicated delinquent for violating certain deliniated offenses was to serve as a warning to a first offender of the consequences of a second conviction; and

WHEREAS, mandatory prison terms applied to adults require that an offender has an opportunity to mend his ways after an initial confrontation with the courts before he is sentenced as a second offender; and

WHEREAS, the current provisions of 10 Del. C. §937, require that a juvenile be committed for the stated mandatory period if he has been adjudicated delinquent for the enumerated number and types of offenses, regardless of whether all offenses are adjudicated at one hearing; and

WHEREAS, the members of the General Assembly and the members of the Family Court Judiciary desire to establish a mandatory commitment provision triggered only by an offense committed after a first adjudication and within a prescribed period of time.

NOW, THEREFORE:

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 S937(c) Part A, Subchapter III, Chapter 9, Title 10, by striking subsections (1) through and including subsection (6) in their entirety, and substituting In lieu thereof the following new subsections which shall read as follows:

"(1) Any child who has been adjudicated delinquent by this Court of one or more offenses which would constitute a felony were he charged as an adult under the laws of this State, and who shall thereafter within 12 months commit one or more offenses occurring subsequent to the said adjudication which offense or offenses would constitute a felony were he charged as an adult under the laws of this State, and thereafter be adjudged delinquent of said offense or offenses, is declared a child In need of mandated institutional treatment, and this Court shall commit the child so designated to the Department of Correction for at least a six-month period of institutional confinement.

(2) Any child committed to the Department of Correction subsequent to an adjudication of delinquency and who thereafter is adjudicated delinquent of a charge of escape, pursuant to Subpart E of Subchapter VI of Chapter 5 of Title 11, is

declared a child in need of mandated institutional treatment, and the Court shall recommit the child to the Department of Correction for at least a six-month period of institutional confinement.

(3) A child committed to the custody of the Department of Correction pursuant to this subsection shall not be released from institutional confinement on pass, on extended leave, or to aftercare during the first six months of said commitment; thereafter, a child committed to the Department of Correction pursuant to this subsection shall not be released from institutional confinement on pass, on extended leave, or to aftercare, unless the Judge of the Family Court who originally executed the Commitment order or a Judge of the Family Court designated by the Chief Judge shall, upon a petition filed by the Department of Correction (or its duly authorized representative), the child, the parent(s) or guardian of said child, or by the Court's own initiative, with notice to the Attorney General, determine by a preponderance of the evidence presented at a hearing that: the child has so progressed in his course of mandated institutional treatment that release would best serve both the welfare of the public and the interest of the child.

(4) Where a child has been declared in need of mandated institutional treatment in accordance with paragraphs (1) and (2) of this subsection, and he is subsequently charged with having committed one or more offenses which offense or offenses occurred subsequent to the child having been declared a child in need of mandated institutional treatment, the Court shall conduct a hearing to determine whether the child is amenable to the rehabilitative processes of the Court pursuant to 5938(e) of this Title. "Offense" in this paragraph shall mean all offenses which would constitute a felony were he charged as an adult under the laws of this State, with the exception of a charge of escape pursuant to Subpart E of Subchapter VI of Chapter 5 of Title 11.

(5) Whenever a child appears before the Court on charges which would constitute a felony were he charged as an adult under the laws of this State, said child and any parent, guardian or custodian of said child who is present shall be specifically advised of the operation of this subsection."

Section 2. Amend §937(c), Part A, Subchapter III, Chapter 9, Title 10, by striking the subsection designators (7), (8), and (9), and substitute therefore the designators (6), (7), and (8), respectively.

Section 3. This Act shall be effective with respect to acts or courses of conduct which occur after its passage by the General Assembly and execution by the Governor. Except as stated in Section 4, no adjudication of delinquency occurring prior thereto shall be considered in determining appropriate disposition of a delinquent child pursuant to 5937 of Title 10.

Section 4. An adjudication of delinquency occurring prior to the effective date of this Act shall be considered in determining appropriate disposition of a delinquent child pursuant to S937 of Title 10 only if both that adjudication and the adjudication under consideration in the disposition come within the terms of both the juvenile mandatory sentencing act in existence at the time of the first adjudication and this Act.

Section 5. This Act shall not affect the status or the commitment order of any child already committed to the Department of Correction pursuant to the predecessor section of this amendment.

Approved July 8, 1980.