CHAPTER 5

FORMERLY

SENATE BILL NO. 25

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO THE DETENTION AND CONFINEMENT OF YOUTH.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1 . Amend § 2103A, Title 11, Delaware Code by deleting said section in its entirety and in inserting in lieu thereof the following:

"When a child has reached his or her 16th birthday and has been found to be nonamenable to the rehabilitative processes of the Family Court or has been charged with an offense in Superior Court and thereafter made application for transfer of said charges to Family Court pursuant to § 1011 of Title 10 and is denied or fails to make application pursuant to § 1011 of Title 10 within the required time and therefore was held over for trial in Superior Court, there shall be a joint placement decision made by the Commissioner of the Department of Corrections ("the Commissioner") or his or her designee and the Secretary of the Department of Services for Children, Youth and Their Families ("the Secretary") or his or her designee to confine the child in the Young Criminal Offender Program within the Department of Corrections until the child reaches his or 18th birthday. The Commissioner and the Secretary shall have exclusive authority to determine such placement decisions. For any child who is currently confined in a juvenile correctional facility and who has reached their 16th birthday and has been found to be nonamenable to the rehabilitative processes of the Family Court or has been charged with an offense in Superior Court and thereafter has made application for transfer of said charges to Family Court pursuant to § 1011 of Title 10 and was denied or failed to make application pursuant to § 1011 of Title 10 within the required time and was therefore was held over for trial in Superior Court, the Commissioner of the Department of Corrections and the Secretary of the Department of Services for Children, Youth and Their Families shall transfer such children to the Young Criminal Offender Program within the Department of Corrections upon opening of such program unless they, based on their best judgment as to the level of security and the nature of the facility required for such a child, determine otherwise. No child subject to the joint placement process shall be entitled to appeal or otherwise challenge such placement decision."

Section 2. Amend § 4204A(a), Title 11, Delaware Code by deleting said section in its entirety and replacing said section with the following:

(a) When a child, as defined under § 901(3) of Title 10, is sentenced in Superior Court as an adult, within 30 days there shall be a joint placement decision to be made by the Commissioner of the Department of Corrections (`The Commissioner') and the Secretary of the Department of Services for Children, Youth and Their Families (`The Secretary') to transfer the child to the Young Criminal Offender Program within the Department of Corrections until the child reaches the child's 18th birthday unless they, based on their best judgment as to the level of security and the nature of the facility required for such a child, determine otherwise. No child subject to the joint placement process shall be entitled to appeal or otherwise challenge such placement decision. The Commissioner and the Secretary shall have the exclusive authority to determine placement of such a child after sentencing in Superior Court."

Section 3. Amend § 4204A(b), Title 11, Delaware Code by deleting said subsection in its entirety and inserting in lieu thereof the following:

(b) Notwithstanding the subsection (a) of this section, no child who has not reached his or her 16th birthday shall be transferred to the Department of Corrections pursuant to this section. At any point during the course of confinement, an administrative review of the placement may be requested by the Commissioner or the Secretary for further consideration and, if appropriate, transfer to or from either Department."

Section 4. Amend § 4204A(c), Title II, Delaware Code by deleting said section in its entirety and inserting in lieu thereof the following: "Nothing in this section shall be construed to give a child the right to challenge such placement decision."

Section 5. This bill revises the Delaware Code as it currently exists. It is the intent of the General Assembly that adult adjudicated youth ages 16 and older will be housed in the Young Criminal Offenders Program within the Department of Corrections when such program is available.

Section 6. Effective August 31, 1998, the General Assembly intends that, per its terms, the amendment to the Delaware Code made by 70 Del. Laws c. 597 (Section 1 and Section 2 of Senate Bill 437 of the 138th General Assembly), will become effective.

Section 7. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to be severable.

Section 8. This legislation will be effective upon enactment.

Approved February 11, 1997