“The mandatory-transfer statutes preclude a juvenile court judge from taking any individual circumstances into account before automatically sending a child who is 16 or older to adult court. This one-size-fits-all approach runs counter to the aims and goals of the juvenile system…”
Justice Lanzinger. Majority Opinion.
On December 22, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Aalim, Slip Opinion No. 2016-Ohio-8278. In a 4-3 opinion written by Justice Lanzinger, the court struck down, on due process grounds under the Ohio Constitution, the mandatory transfer of juveniles to adult court. Joining the majority opinion were Chief Justice O’Connor and Justices Pfeifer and O’Neill. Justice Kennedy wrote a partial concurrence and solo dissent. Justice French also wrote a dissent which was joined by Justice O’Donnell. The case was argued April 20, 2016.
A complaint was filed in juvenile court against appellant Matthew Aalim, alleging that he was involved in what would be aggravated robbery if committed by an adult. The complaint included a firearm specification. Appellee, the state of Ohio, moved to transfer Aalim to adult court pursuant to R.C. 2152.10(A)(2)(b) and 2152.12 (A)(1)(b). After having a hearing, the juvenile court found, per the statutory requirements, that Aalim was 16 at the time of the alleged offense and that there was probable cause to believe he had committed what was alleged in the complaint. So, as is required by the statute, Aalim’s case was automatically transferred to the general division of the common pleas court.
In adult court, Aalim moved to dismiss the charges and transfer his case back to juvenile court. He argued that mandatory transfer violated the rights of juveniles to due process, equal protection, and against cruel and unusual punishment, under both the Ohio and the U.S. Constitutions. The trial judge overruled the motion. Aalim then pled no contest to two counts of aggravated robbery, and the state agreed to dismiss the gun specifications. Aalim was then sentenced to two concurrent four-year terms of imprisonment. Aalim appealed. The Second District unanimously held that Aalim’s transfer to adult court was not in violation of any constitutional rights, and upheld the sentence.
Key Statutes and Precedent
Transfer for a child alleged to be delinquent is mandatory when the child is charged with a category two offense, was sixteen or older at the time of the commission of the offense, and the child had a firearm.
Transfer is mandatory if the child is 16 or 17, and there is probable cause to believe the child committed the act charged
If a child is fourteen years of age or older at the time of the act charged and if the child is charged with an act that would be a felony if committed by an adult, the child is eligible for discretionary transfer.
R.C. 2152.12(B) (sets forth factors to be considered for discretionary transfer)
Ohio Constitution, Article I, Section 16 (“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”)
U.S. Constitution, Amendment XIV (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)
In re Gault, 387 U.S. 1 (1967) (“[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.”)
In re C.P., 2012-Ohio-1446 (Juveniles are entitled to “fundamental fairness,” and automatic, lifelong registration as a sex offender for juveniles violated this principle of due process.)
In re Agler, 19 Ohio St.2d 70 (1969) (A juvenile’s right to juvenile courts and proceedings are not fundamental in nature, but instead are legislative creations.)
Miller v. Alabama, 132 S.Ct. 2455, 2464 (2012) (Juveniles are entitled to special considerations as “children are constitutionally different from adults for purposes of sentencing.” This is because juveniles, unlike adults, (1) lack maturity, (2) are more susceptible to peer and other outside pressures, and (3) have more malleable character (i.e. more redeemable.))
Arnold v. Cleveland, 67 Ohio St.3d 35 (1993) (The Ohio Constitution is a document of independent force.)
Lassiter v. Dept. of Social Servs. of Durham Cty., North Carolina, 452 U.S. 18 (1981) (Due process is not a concrete, precisely defined concept, but it “expresses the requirement of ‘fundamental fairness.’” This fairness determination is an “uncertain enterprise.”)
Schall v. Martin, 467 U.S. 253 (1984) (Like adults, juveniles are also guaranteed certain constitutional protections (e.g. the right to counsel, notice, privilege against self-incrimination, double jeopardy.))
State v. Hanning, 89 Ohio St.3d 86, 88 (2000) (“Since its origin, the juvenile justice system has emphasized individual assessment, the best interest of the child, treatment, and rehabilitation, with a goal of reintegrating juveniles back into society.”)
State v. Walls, 2002-Ohio-5059 (Procedural protections should not be denied due to age. Rights guaranteed to adults in criminal proceedings “are equally applicable to juvenile delinquency proceedings.”)
In re C.S., 2007-Ohio-4919 (Used Lassiter’s “fundamental fairness” analysis in considering a juvenile’s due process right to counsel during delinquency proceedings.)
Cleveland v. State, 2014-Ohio-86 (“When this court holds that a statute is unconstitutional, severing the portion that causes it to be unconstitutional may be appropriate.”)
R.C. 1.50 (“If any provisions of a section of the Revised Code or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the section or related sections which can be given effect without the invalid provision or application, and to this end the provisions are severable.”)
In re Hua, 62 Ohio St.2d 227 (1980) (The Ohio Constitution’s Due Course of Law Clause has been interpreted as coextensive with the U.S. Constitution’s the Due Process Clause of the Fourteenth Amendment.)
Why Was Aalim’s Transfer Mandatory?
Aalim’s transfer was mandatory because he was 16, because aggravated robbery is a category two offense, because he was charged with a firearm specification, and there was probable cause to believe he had committed the acts charged.
Aalim brought a facial challenge to the mandatory transfer statutes on due-process and equal protection grounds. He did not raise an Eighth Amendment Challenge in the high court. A facial challenge means the statute must be proven unconstitutional in all applications. The court decided the case solely on state due process grounds, under Article I, Section 16 of the Ohio Constitution.
Positions of the Parties on Due Process
Aalim argued that fundamental fairness requires every juvenile be given the chance to show a capacity for change, that youth must always be considered as a mitigating, not an aggravating, factor, that the irrebuttable presumption of transfer in the statutes is fundamentally unfair, and that juveniles have a substantive due-process right to have youth and its characteristics (which the U.S. Supreme Court has emphasized include immaturity, impetuosity, and failure to appreciate risks and consequences) taken into account at every stage of the proceedings.
The state argued that the only process due to juveniles is that which is codified in the mandatory-transfer statutes as a special measure created for certain specified circumstances.
The majority buys Aalim’s arguments; the dissent buys the state’s.
The Bill of Rights is not Just for Adults
It is well-settled in both state and federal constitutional law that juveniles are entitled to basic constitutional protections such as the right to counsel, the right to notice of charges against them, the privilege against self-incrimination, the application of proof-beyond-a-reasonable-doubt standard, and the protection against double jeopardy.
More Sparring On The New Judicial Federalism
Because the majority based its decision solely on the Ohio Constitution, more sparring occurred between Justices Lanzinger and French, who had been at this regularly and mightily of late. Here’s Lanzinger’s take. French’s occur in the dissent:
“And despite the dissent’s inclination to walk in lockstep with the federal courts on constitutional matters, we have repeatedly recognized that the Ohio Constitution contains greater protections than the federal Constitution in certain instances. See Simpkins v. Grace Brethren Church of Delaware, Ohio, ___ Ohio St.3d ___, 2016-Ohio-8118, ___ N.E.3d ___, ¶ 61 (Lanzinger, J., concurring in judgment only).”
Juveniles and Due Process
Due process is a flexible concept, lacking a precise definition. As the court emphasized in In Re C.P., and does again here, the discretion of the juvenile judge is an essential element of the juvenile process, and fundamental fairness may require additional procedural protections for juveniles. So, the majority buys Aalim’s argument that juvenile court judges are in the best position to evaluate whether a given juvenile belongs in juvenile or adult court, and that fundamental fairness requires that each juvenile be given the chance, in an amenability hearing, to show a capacity to change and suitability to juvenile court.
And yes, the U.S. Supeme Court has made it abundantly clear in Roper, Graham, and Miller, that juveniles are different. Youth is to be a mitigating factor when it comes to sentencing, and it should for transfer to adult court as well.
Steps to Invalidating the Mandatory Transfer Provisions
- With a limited exception not pertinent here, the General Assembly has chosen to treat everyone under 18 as a child until transfer has occurred.
- Age should not be the sole decisive factor in making a transfer decision.
- All children, regardless of their age, must have an individualized determination at an amenability hearing before being transferred to adult court upon a finding of probable cause for certain offenses.
- Juvenile court judges must have the discretion to distinguish between children who should be treated as adults and those who shouldn’t.
The right to due process under the Ohio Constitution requires that all children have the right to an amenability hearing before transfer to adult court. The mandatory transfer statutes violate the right to due process as guaranteed by Article I, Section 16 of the Ohio Constitution.
What About Discretionary Transfer?
That’s just fine. The discretionary transfer statutes allow for transfer of children 14 or older when there is probable cause to believe the child committed the charged act, the child is not amenable to care or rehabilitation within the juvenile system, and the safety of the community may require that the child be subject to adult sanctions. These statutes provide lots of factors (which appellate courts seem to love) to consider in making this decision: the emotional, physical, and psychological maturity of the child; the child’s previous experiences in the juvenile system; the harm suffered by the victim; whether the child was the principal actor in the conduct charged; and whether the child was under any negative influence or coercion at the time of the conduct charged. So, the court holds that the discretionary-transfer process satisfies fundamental fairness under the Ohio Constitution.
So, How to Fix The Bad Parts?
Ok, the court just went through the severance thing in State v. Noling, Slip Opinion No. 2016-Ohio-8252. You can read all about the proper three part test for severance set forth in Geiger v. Geiger, 117 Ohio St. 451, 160 N.E. 28 (1927) in the Noling decision. Here, though, the process was much simpler. The court found that the mandatory-transfer provisions and the discretionary-transfer provisions are capable of separation, can be read and can stand independently, and no words or terms need be inserted into the discretionary-transfer provisions to give them effect. In other words, just lop off the mandatory transfer provisions and keep the discretionary statutes exactly as written. That’s what the court ordered.
What Happens Now?
Aalim gets sent back to juvenile court for an amenability hearing.
Justice Kennedy’s Position
Justice Kennedy agrees that discretionary bind-over does not offend due process. Curiously, Justices French, in her dissent joined by Justice O’Donnell, doesn’t discuss this.
Kennedy disagrees that there is greater protection for juveniles under the state due course of law provision (Ohio’s equivalent of the due process clause) than exists under federal law. She notes that the court has long construed them as co-extensive. She made the same criticism of the court’s finding of greater protection under the state equal protection clause in State v. Mole, Slip Opinion No. 2016-Ohio-5124. While Kennedy agrees that the Ohio Constitution can be a document of independent force, she criticizes the majority for finding that to be so in this case “without engaging in any textual or historical analysis of the particular provision of the Ohio Constitution that is at issue.”
Next, in a classic anti-judicial activist screed, Kennedy criticizes the majority for overriding the will of the General Assembly, and for not doing a proper facial constitutional analysis. She disagrees that the current mandatory bind-over procedure violates due process. She criticizes the majority for bootstrapping squishy notions of fundamental fairness onto a statutorily created court of limited jurisdiction (juvenile court). She writes that such fundamental fairness requirements are not required by the explicit text or history of the Ohio Constitution, although she provides nothing to back up that criticism. To her, mandatory transfer does not implicate fundamental fairness, but rather, is a policy choice of the legislature, and by saying that it does, the majority is stepping on the legislature’s toes.
“By elevating a juvenile’s statutory right to an amenability hearing under R.C. 2152.10 and 2152.12 to a constitutional right mandated by Article I, Section 16, the majority will allow this court to invalidate any statutory or procedural rule that four members of this court believe is unfair.” Kennedy wrote.
No other justice joined this concurrence/dissent.
Justice French’s Dissent
New Judicial Federalism
Justice French begins by noting that until recently the court has considered the Ohio due course of law provision to be the equivalent of the 14th amendment due process clause, noting the exception for uncounseled juveniles in State v. Bode, and her dissent in that case. She gives examples of where the court has found greater protection under the Ohio Constitution, but strongly “disagrees with the majority’s cavalier decision to create greater protections under the Ohio Constitution, absent compelling reasons to do so.”
Mandatory Transfer Provisions are not Unconstitutional
French does not believe Ohio’s mandatory transfer provisions violate either substantive or procedural due process. She explains that substantive due process bars certain wrongful governmental actions regardless of the procedures used to implement them, while procedural due process requires the government to provide fairness in any action that deprives a person of life, liberty, or property.
French notes that there is no deeply rooted fundamental right to juvenile court proceedings in general or amenability hearings in particular. Juvenile courts are strictly creatures of statute, and rooted in social-welfare philosophy. There is no fundamental right to juvenile status or juvenile proceedings. So the mandatory transfer provisions do not violate substantive due process.
As to procedural due process, Aalim fares no better. He would need to show the state deprived him of a protected interest in life, liberty, or property without due process of law, which means some type of hearing.
While agreeing that the due process clause applies in juvenile proceedings, and that juveniles are entitled to many of the same constitutional rights as adults have, French also believes there is “no doubt” that the clause does not give rise to an interest in juvenile proceedings, because those proceedings are purely statutory. She notes that a juvenile eligible for mandatory transfer has the right to a pretransfer hearing at which the state must prove that the juvenile falls under the statute and there is probable cause that the juvenile committed the charged offense, and that at that hearing the juvenile has an waivable right to counsel, the right to remain silent, to present evidence, to cross-examine witness, and to notice of the charges against him.
Criticism of Majority Opinion
French notes that while the majority may prefer to give juvenile court judges the discretion to determine transfer, that decision belongs to the General Assembly, which has decided otherwise. “The Due Process Clause does not invest this court with the power to sit as a super-legislature to second-guess the General Assembly’s policy choices.” She also criticizes the majority’s reliance on sentencing decisions both from the U.S. Supreme Court and its own precedent, since this case is not about sentencing. And she goes on to distinguish many of the other cases relied on by the majority as irrelevant in this transfer context.
French does agree that all children are entitled to fundamental fairness in the proceedings by which they are transferred out of juvenile court, but believes that the procedures set forth in the mandatory transfer provisions and the juvenile rules provide all the process that is due.
Because French rejected Aalim’s due process challenge, she briefly considered but also rejected his equal protection challenge, again pretty much on legislative deference grounds. “I agree with those Ohio appellate courts that have concluded that the General Assembly’s decision to single-out older juvenile offenders—who are “potentially more streetwise, hardened, dangerous, and violent”—is rationally related to the legitimate governmental interests in protecting society and reducing violent crimes,” French wrote.
- The mandatory transfer of juveniles to the general division of common pleas court violates juveniles’ right to due process as guaranteed by Article I, Section 16 of the Ohio Constitution.
- The discretionary transfer of juveniles 14 years old or older to the general division of common pleas court pursuant to the process set forth in R.C. 2152.10(B) and 2152.12(B) through (E) satisfies due process as guaranteed by Article I, Section 16 of the Ohio Constitution.
What is abundantly clear is how much Chief Justice O’Connor is going to miss Justices Lanzinger and Pfeifer. They, along with Justice O’Neill, have pretty consistently formed the more liberal coalition on the court. Justices Lanzinger and French in particular, have really gotten into it on finding greater protections under the Ohio Constitution. This case and Bode are good examples. I think Justices French and Kennedy are quite fair in their criticism that the majority is pretty slim in its justifications for finding greater protections under the Ohio Constitution, providing little or no textutal or historic analysis in some of its recent decisions like this one, and Mole. But I also think Justices French, Kennedy, and O’Donnell have a very cramped and narrow notion of a court’s obligation to strike down laws that are unconstitutional, hurling the accusation of judicial activism far too easily at their colleagues. I also think Justice French’s attempt to limit the U.S. Supreme Court decisions in Roper, Graham, and Miller just to sentencing is very unpersuasive. To me, the very fundamental and extensive findings in those cases about juveniles generally should have broad application in the juvenile context.
It is going to be very interesting to see where Justices Fischer and DeWine come down in all of this, and especially to see if the new judicial federalism gets halted in its tracks.
After argument, I called this case correctly for the defense, although I thought the vote would be 5-2. But I wrote that “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. I also wrote that “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.” It turns out that the howl of outrage came from Justice French; Justice O’Donnell merely signed on.
This case was argued at Meigs high school, and presented a classic and long running debate over the role of the court and the legislature, as evidence by a spirited exchange between Chief Justice O’Connor and Deputy Chief Solicitor Michael Hendershot. You can read parts of that here.