What’s On Their Minds: Constitutionality of the Mandatory Juvenile Transfer Statutes. State of Ohio v. Matthew Aalim

Further Update: On May 25, 2017, the Supreme Court of Ohio granted reconsideration in this case, and reversed it.  Read the analysis of the new merit decision here.

Update: On December 22, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“Even though as you said the legislature sets the rules, the court can say your rules are too extreme. And we can do that here.” Chief Justice O’Connor, to the Chief Deputy Solicitor.

“Don’t states have the right to determine the parameters for trying juveniles?” Justice O’Donnell, to the prosecutor.

On April 20, 2016, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Matthew Aalim.  At issue is whether the mandatory transfer of juveniles to adult court pursuant to R.C. 2152.10(A)(2)(b) and R.C. 2152.12(A)(1)(b) is unconstitutional. The case was argued at Meigs High School in Meigs County, as part of the court’s off-site program. This case seems to have been carefully chosen for this high school audience, and the questioning was protracted and at times oversimplified for the benefit of the students.

Case Background

Sixteen-year-old Appellant Matthew Aalim robbed two women at gunpoint. Because of his age, the gun, and the nature of the offense, Aalim’s transfer from juvenile court to adult court was mandatory.  There, he pled no contest to two counts of aggravated robbery, and the state dismissed the gun specifications. Aalim was then sentenced to two concurrent four-year terms of imprisonment. Aalim subsequently appealed his sentence based on violations of his due process, equal protection, and rights against cruel and unusual punishment. The Second District unanimously held that Aalim’s transfer to adult court was not in violation of any constitutional rights, and upheld the sentence.

Read the oral argument preview of the case here.

Key Statutes and Precedent

R.C. 2152.10(A)(2)(b) (Transfer is mandatory for offenses by juveniles involving a firearm.)

R.C. 2152.12(A)(1)(b) (Transfer is mandatory for certain offenses if the child is sixteen or seventeen at the time of the act charged.)

Kent v. United States, 383 U.S. 541 (1966). (The waiver of a juvenile to adult court is “critically important” to review prior to the transfer because of the liberty deprivations at stake. Before a court imposes a transfer it must consider eight factors in order to preserve due process: (1) Seriousness of the offense; (2) Violence of the offense; (3) If the offense was against persons or property; (4) Merit of the complaint; (5) Desirability of keeping the case in one court; (6) Sophistication of the juvenile; (7) Criminal history of the juvenile; (8) Prospects for successful rehabilitation.)

In re Gault, 387 U.S. 1 (1967). (Extended the Kent holding by adding that juvenile courts must comport with the due process requirements as established in the Fourteenth Amendment with an emphasis on “fundamental fairness.” Additionally, notice, counsel, and the right against self-incrimination are applicable to juveniles and adults alike.)

Roper v. Simmons, 543 U.S. 551 (2005) (The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.)

In re D.H. 2009-Ohio-9 (the court’s dispositional role is at the heart of the differences between juvenile and adult court.)

Graham v. Florida, 560 U.S. 48 (2010) (Juvenile non-homicide offenders cannot be given a sentence of life without parole.)

In Re CP, 2012-Ohio-1446,  (automatic mandatory lifelong sex-offender classifications for certain juvenile sex offenders violate due process.)

In re D.W. 133 Ohio St.3d 434 (2012) (Amenability hearings may be waived so long as the waiver request is expressly stated on the record by the representing attorney, the request is made knowingly, voluntarily, and intelligently, the record indicates specific factors that ultimately influenced the court’s decision to permit the waiver.)

Miller v. Alabama, 132 S.Ct. 2455 (2012) (Children are less culpable than adults. Imposing a mandatory sentence of life without parole on a juvenile is cruel and unusual punishment and thereby violates the Eighth Amendment.)

At Oral Argument

Arguing Counsel

Amanda J. Powell, Assistant State Public Defender, Columbus, for Appellant Matthew Aalim

Andrew T. French, Assistant Montgomery County Prosecutor, Dayton, for Appellee State of Ohio

Michael J. Hendershot, Chief Deputy Solicitor, Columbus, for Amicus Ohio Attorney General Michael DeWine, in support of the State of Ohio

Aalim’s Argument

Most of Aalim’s argument focused on due process.

When Ohio decided to have a juvenile court system, children in Ohio acquired a protected liberty interest in the special, individualized treatment provided by juvenile court. Before 1996, Ohio afforded every child transferred to adult court an amenability hearing. But with the enactment of the mandatory transfer statutes challenged in this case, all the protections that had previously existed with the amenability determinations were stripped away. Because juveniles have a liberty interest in juvenile court proceedings generally and because they previously had such an interest, the new mandatory transfer system infringes on a child’s protected liberty interest in a way that offends due process. It was a different world when these mandatory transfer statutes were enacted. Since 2005 in Roper, courts are required in a constitutional sense to look at children differently.  We know now that kids perceive risks and consequences differently than adults. They can’t evaluate their options the same way an adult can, or look at all the collateral consequences that attach to their actions. Kids make dumb choices.

The juvenile forum is unique-the due process protections in some ways are fewer than in adult court because there is no right to a jury or to bail, but the breadth and depth of the protections in juvenile court are far greater. When a child is transferred to adult court, although he gets a right to a jury trial and bail, he loses the subjective understanding, the totality of the circumstances, and all the considerations of the unique factors of youth.

What is lost to a juvenile like Aalim is the privacy juvenile court proceedings afford, the stigmatization that comes with transfer to adult court, the lifetime of collateral consequences that come with an adult conviction, and the loss of opportunity for the treatment that comes with the juvenile system. In this situation, the child’s interest in treatment and the right to an amenability hearing outweighs the government’s interest in summary adjudication. This is more than just a forum change-it is a stripping of due process. When the legislature passed these statutes, it took away the unique role and understanding of the context of that particular child, and requires the juvenile judge to sit on his or her hands. Instead, have the amenability determination. Let an expert decide if the child needs juvenile treatment or not.

State’s Argument

Aalim makes an interesting public policy argument about why mandatory transfer statutes may be unwise, any why the legislature should perhaps re-examine the rationale behind the statutes for who gets bound over and when and under what circumstances, but there really is no compelling legal argument why this court should strike down these statutes. The U.S. Supreme Court has never said that a juvenile has a right to juvenile court proceedings. Nor has there ever been a constitutionally recognized right to an amenability hearing.

The juvenile court system is strictly a creature of statute. The legislature has created the system it feels is appropriate. The legislature is entitled to set the parameters of who should be treated in juvenile court, and under what circumstances. While there may in fact be value in allowing the exercise of discretion in a bind-over determination, it is up to the state legislature to set those standards. Ohio has set the parameters for category 2 offenses with a firearm at age 16. Some states have set it younger. The Ohio legislature has made a determination that it is necessary to bind over certain older juveniles like Aalim who commit certain offenses under certain circumstances, particularly when committed with a firearm, in order to protect the public.

All the essential due process protections have been afforded juveniles whether they remain in juvenile court or are transferred to adult court. In fact, juveniles who are bound over to adult court get greater due process protections than juveniles who aren’t, such as grand jury consideration, bail, jury trial, and greater speedy trial rights. So from a process standpoint, due process is being afforded to all juveniles, with more for older juveniles. Arguably, Aalim got a less harsh sentence in adult court in this case than he could have gotten in the juvenile system ( 4 years versus the possibility of 5). But it is not unconstitutional to punish older juveniles who commit violent felonies with guns more harshly because they are in the adult system.

As for the recent case law from the U.S. Supreme Court regarding juveniles, all of these were dealing with punishment under the Eighth Amendment, and held that juveniles must be treated differently from adults for sentencing purposes, which is different from the challenge in this case. But even in those cases, the juveniles were all transferred to and prosecuted in adult court, and in none of those cases did the U.S. Supreme Court suggest in any way that the transfer process was unconstitutional.

Attorney General’s Argument

The choice about whether to transfer juveniles of a certain age who commit certain types of offenses is purely one for the legislature, not the court. Whether we have juvenile courts at all and the ages for that is a legislative matter. There is no constitutional right to juvenile court, and there is actually greater due process in adult court than in juvenile court. The Constitution only has a bearing at the extreme end of sentencing juvenile offenders. For this court to hold that as a matter of federal constitutional law, age mandates a certain process would be an extreme step, and one which would be saying laws in 29 states are unconstitutional. Nor is there anything to suggest the Ohio Constitution is more expansive in this area.

What Was On Their Minds

Legislature versus Judiciary

Can’t the legislature can determine where cases are tried, asked Justice O’Donnell? The General Assembly could actually eliminate juvenile court, couldn’t it? (yes, conceded defense counsel). Why can’t it be the state’s policy that this category of cases, all treated equally, are to be tried as adults? Isn’t there a rational relationship between these transfer statutes and public safety, and doesn’t the legislature make that kind of analysis?

Must there not have been sufficient testimony from juvenile experts before the legislature to underpin and justify these mandatory transfer statues, asked Chief Justice O’Connor?

Recent U.S. Supreme Court Precedent- Kids are Different

Would recent U.S. Supreme Court precedent require special consideration at the transfer stage, asked Justice Lanzinger?

Both the Ohio Supreme Court and the U.S. Supreme Court have decided that everyone under 18 is a juvenile and they should get special protections if they go to juvenile court, Justice O’Neill commented. But the Ohio General Assembly has now said if you are over 16 and you commit a certain crime, you don’t get those protections. How is that equal protection under the law?

Due Process Requirements

Isn’t any juvenile who is bound over afforded due process, in a criminal proceeding as an adult, asked Justice O’Donnell? So how can the defense argue that due process is being stripped away when that person is still subject to all the rights of due process, but in a different forum? Haven’t many other state supreme courts found no due process violations with these statutes?

What is the rational basis for saying 16 year old first offenders who commit certain offenses are not entitled to the protections of juvenile court, asked Justice O’Neill? Isn’t the concern the fact that the General Assembly won’t permit the juvenile court judge the opportunity to see if this kid can be rehabilitated in the juvenile system, asked Justice O’Neill. They can just carve out a portion of the population and say you don’t get the same rights as other kids? Later, he commented that the court has the responsibility for protecting due process rights of all citizens, and due process in its simplest form is the right to be heard in a meaningful form, which was denied in this case.

Doesn’t every child in juvenile court have a due process interest, asked Chief Justice O’Connor? So if human beings under 18 in Ohio are presumed to be in juvenile court, with all the rights attendant to their status as juveniles, except 16 and 17 year olds who commit certain acts– they don’t get those rights? They don’t get the rights of due process within the arena of juvenile court? They get different rights—rights that are going to be orchestrated in adult court? Even if they are amenable to the juvenile system? We don’t care if you could be rehabilitated, and made better by the treatment, counseling and consequences of juvenile court, we are going to send you to adult prison? Later, she commented that the protection of the consequences of juvenile court are not available to a child of the same age in adult court asking whether this “automatic flip of the switch” based on these two criteria (age and offense) is the problem?

Adult Court

Can’t an adult court still take youth into account in sentencing, asked Justice O’Donnell?

But facing adult prison is far different from the options in juvenile court, noted Chief Justice O’Connor. The consequences in juvenile court are significantly different than the incarceration that is available in adult court, she noted. A youth detention center versus an adult prison.

Is there any opportunity for a common pleas judge to return the child to juvenile court, asked Justice French? There are lots of consequences that go along with an adult conviction that would not follow a juvenile the way an adult conviction would, she noted.  So in that sense, can we really say that the punishment is less than he would have gotten in the juvenile system? (the prosecutor had argued that because the state dismissed the gun specifications in this case, Aalim was actually facing less time in adult court than he could have in juvenile court) Are we talking about punishment, or about how the child gets to adult court?

Doesn’t the gun mean a mandatory three years in adult court, asked Justice Pfeifer?

Mandatory versus Discretionary Transfer

What is the subset of juveniles for which there is an automatic bindover, asked Justice Pfeifer, probably for the benefit of the student audience. Should any change apply to all juveniles regardless of the offense committed? Even if a 17 year old commits multiple murders?

Does the constitutional problem exist only for mandatory, not discretionary transfer, asked Justice Lanzinger? Before 1996, judges had discretion about transfer, she noted. Is there any value to the discretionary decisions made by a juvenile judge in deciding whether to bind a juvenile over?

Is there any argument here that a 16 or 17 year old is deterred because committing certain offenses is going to be an automatic trip to adult court, asked Chief Justice O’Connor? So a 17 year old who does something reprehensible which is not on the mandatory transfer list, will get juvenile treatment or at least an amenability hearing, she noted, but is this automatic flip of the switch based on age and offense the problem? Is age, then, in Ohio, an aggravating circumstance? Later, she commented that a 16 or 17 year old who acts in a certain way is not going to have the same benefit as a 15 year old who has acted in the exact same way. So the only distinction is age. And age becomes an aggravating factor.

So, even if the juvenile court judge wanted to keep this particular case in juvenile court, he could not, asked Justice O’Neill? (he could not, defense counsel agreed)

How it Looks from the Bleachers

To Professor Emerita Bettman

I’m calling this for the defense. I think the court by a vote of 5-2 is going to take the dramatic step here of invalidating the mandatory transfer statutes at issue in this case, on due process grounds, either state or federal, with perhaps a nod to the equal protection argument.

The case, perfect for a high school audience, presented a classic and long running debate over the role of the court and the legislature, with Chief Justice O’Connor and Justice O’Donnell having the polar opposite views, as evidenced by this exchange with Mr. Hendershot, the Chief Deputy Solicitor:

The Chief:

“The whole concept of juvenile court recognizes the mitigation of youth. We wouldn’t have juvenile court if we didn’t have that enlightened view that under 18 are children with all the attendant developmental levels—and that’s why we have juvenile courts.”

Mr. Hendershot:

“But whether we have juvenile courts at all and where we set that age is a legislative choice. Some states set it otherwise—Ohio has set it at 18 for many crimes, but lower for certain very serious crimes. Fairness to the victims, fairness across from defendant to defendant, the General Assembly—the people of Ohio have said that means setting the age at 16 when you have committed a serious crime.”

Justice O’Donnell:

“Is this a separation of powers issue, is that what you are arguing to us? Or is this the policy set by the General Assembly and it can set whatever policy it wants?”

Mr. Hendershot:

“It can set whatever policy it wants” (arguing that the Constitution comes to bear only at the extreme end of sentencing).

Chief Justice O’Connor:

“That’s the court that is setting the line there, as to what is extreme. You would have to say that. You can’t incarcerate children for life. That’s extreme. The legislature said you can do that. Then the court steps in and says no, you can’t do that. So the court is the arbiter of what is extreme, what is excessive, even though as you said the legislature sets the rules, but the court can say your rules are too extreme. And we can do that here.  Would you say that we cannot?”

Mr. Hendershot:

“You cannot in this case. I think it would be a fairly radical step, from saying at the extreme end of punishment, age is relevant, to saying that age mandates a process, you’d have to be saying that as a matter of federal constitutional law the laws of 29 states are unconstitutional as we stand here today.”

The Chief:

“But we could use the Ohio constitution, could we not?”

Chief Justice O’Connor has made the protection of juveniles one of the hallmarks of her tenure as Chief, and seemed most inclined to strike down these mandatory transfer statutes, probably joined by Justices O’Neill, Pfeifer, Lanzinger, and French. As the Chief  succinctly put it during argument, the automatic “flip of the switch” is what is wrong with the transfer statutes. Justice O’Donnell has just as strongly and consistently opposed cutting any slack for violent juvenile offenders, and in deferring to the legislative choices in this arena.

While I haven’t yet had time to analyze it, on April 28, 2016, in State v. Barker, Slip Opinion No. 2016-Ohio-2708 in a 5-2 decision written by Justice French, the court held that  R.C. 2933.81(B) violates the due process rights of juveniles. That statute presumes that electronically recorded statements made during custodial interrogation are presumed voluntary. I think the decision in Barker may well foreshadow a finding for the defense in Aalim.

Despite the fact that Mr. Hendershot argued that Aalim never asked for relief under the Ohio Constitution, Aalim did so in his proposed propositions of law, so the court could well use the Ohio Constitution’s due course of law provision to invalidate the mandatory transfer statutes. Using the Ohio Constitution to invalidate the statutes may lose Justice French, who has been critical of the court for holding that the state constitution provides greater protections in certain areas of law (like extra-territorial traffic stops for minor misdemeanors in State v. Brown,  2015-Ohio-2438 and, in State v. Bode, 2015-Ohio-1519, another due process case finding greater protection under Ohio’s Due Course of Law provision for uncounseled juveniles facing the possibility of confinement than exists under the Due Process clause of the U.S. Constitution) without any real or rigorous constitutional analysis.  But she seems to agree with the others that the mandatory transfer statutes violate federal due process. If the court does go with a federal due process analysis, it could be a trend-setter, and could send this case to the U.S. Supreme Court, with the prosecutor arguing that the juvenile sentencing cases are different from cases where age mandates a certain process, and that a juvenile has no constitutional right to juvenile court proceedings.

If the court does invalidate these statutes, it will produce a howl of outrage from Justice O’Donnell, who is clearly totally in line with the state that the legislature has the right to make these choices and draw these lines. Justice Kennedy joined O’Donnell in the Barker case, so she probably will in this one as well.

In State v. Long, 2014-Ohio-849, the court held that when sentencing a juvenile offender to a prison term of life without parole, the sentencing court must specifically consider youth as a mitigating factor. In the argument in Aalim’s case, the Chief seemed to be viewing the mandatory transfer statutes as using youth as an aggravating circumstance instead of a mitigating factor.  She asked several questions suggesting that, and this could be a basis of the court’s holding.

To Student Contributor Austin LiPuma

Counsel on behalf of Aalim submits that the legislature stripped away liberty interests for juveniles with the enactment of mandatory transfers. Beyond that, what does a child lose when that child automatically must be subjected to adult court? The answer is limitless collateral consequences ranging from stigmatization to harsher sentences. The issue is the deprivation of a hearing prior to the transfer—where is the protection for children who are recognized as being fundamentally different from adults? This case was originally filed in juvenile court and accordingly, the same protections should have been afforded to a juvenile. That did not happen in this case and just by virtue of age, Aalim was transferred. This is in violation of due process and cannot pass muster. I enjoyed the solid analogy offered by counsel regarding the arbitrary distinctions drawn between 15 and 16-year-olds under this framework. Children under 18-years-old are exactly that, children.

Discretionary transfers are constitutional but depriving a juvenile of rights guaranteed by that status through mandatory transfers is not. The unique role of a juvenile judge’s decision making is also undermined, despite being in the best place to make these decisions. This “automatic switch”, as the Chief Justice points out, is at the core of this issue.

Counsel on behalf of the state submits that the policy furthering the need to transfer violent criminals is necessary. A juvenile does not have an absolute right to juvenile court and therefore the issue does not necessarily violate equal protection. Furthermore, it is absolutely necessary to bind over juveniles who have committed violent crimes for the sake of public safety. However, this argument was met with much pushback as it creates a de facto presumption that a juvenile who commits such a crime cannot be rehabilitated through juvenile court. Instead that subset of juveniles is deprived of a right other juveniles are afforded—an amenability hearing. The State insists that this is appropriate and within the scope of the State’s authority to punish and deter criminals. A juvenile is afforded a quasi-analysis since age and the nature of the offense (category 2 with a firearm) is taken into consideration and is a type of crime the legislature has determined should be subjected to mandatory transfers. However, this was met with further pushback since this method is essentially using age as an aggravating circumstance.

This is a win for Aalim, as well as juveniles across the State of Ohio. For several years we have watched a paradigmatic shift with how juveniles are adjudicated. The known biological, physiological, and cognitive differences between juveniles and adults should be considered before forcing a juvenile under 18-years-old to face adult proceedings. The court seems to recognize this premise and will not allow the mandatory transfer of juveniles to adult court under the guise that it is merely a forum change.




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