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The Utah Sentencing Commission on Wednesday agreed with the recommendation of a subcommittee that the state's serious youth-offender statute should be tweaked to give juvenile court judges and prosecutors more discretion to keep some juveniles out of the adult system.

The law currently requires that youths 16 years of age or older who commit certain felony offenses — including aggravated crimes of arson, assault, kidnapping, robbery and attempted murder — be tried in adult court once probable cause is determined at the juvenile court level unless it can be shown the minor has not previously used a weapon in a crime; had less culpability than other defendants; and did not engage in a violent, aggressive or premeditated manner during the crime.

The statute was intended to deal with youths who commit those most serious crimes and who have exhausted the juvenile system, said Jacey Skinner, executive director of the sentencing commission. But the law does not permit any distinctions to be drawn for first-time or other offenders who might be better helped in the juvenile court system, Skinner said.

"It's very difficult to commit aggravated robbery in a non-premeditated fashion," she said, "... so there is little decision-making for a judge when the facts are determined."

Once the youths are in the adult system, they do not have access to appropriate services that would be available to them in the juvenile system, Skinner added.

A draft of possible changes to the law shared with the commission would allow a juvenile court judge to retain jurisdiction if he or she determined that transfer to the adult system would be contrary to the minor's and the public's best interests. The judge would still weigh mitigating factors in making that determination, but the proposed changes would include a review of the "number and nature" of a minor's previous interaction with the juvenile court system.

The goal, Skinner said, is to ensure that "juveniles being transferred to the adult system are the juveniles intended to go there."

The state does not track how many juveniles are being transferred into adult court.

A separate statute gives district courts jurisdiction over juveniles age 16 years or older who are charged with murder or aggravated murder.

Some commission members expect the idea to get a chilly reception from county prosecutors, who are likely to see it as interfering with their ability to decide how to handle cases. But Skinnernoted that the statutecurrently gives prosecutors no options.

And the proposed changes would still allow judges and prosecutors to send the most serious, repeat offenders who have run through the juvenile system's options to adult court.

"I think this is a good concept in that it gives judges much needed discretion in these cases," said Mark Moffat, a defense attorney and commission member.

Judge Gregory Orme of the Utah Court of Appeals related concerns of law enforcement that some youths end up with lighter sentences in adult court, where their crimes are seen as less serious, than they would have received in the juvenile system.

There are "kids who really would do better if they stayed and were managed on the juvenile side, and some of the kids we think are really bad aren't getting treated that seriously on the adult side," Orme said.

Paul Boyden, executive director of Utah's Statewide Association of Prosecutors and a commission member, said the adult system "just doesn't have the resources to deal with young offenders."

That said, Boyden added, "it is not going to be easy to convince county attorneys to do this."

Summit County Attorney David Brickey, a commission member, agreed. He said he spoke to six prosecutors, all in rural counties, who fear "you are taking something away from them." He said prosecutors have sometimes dealt with the rigid statute by creating "legal fictions" that give them the discretion proposed by the changes.

One example: Jonatan Bustos was initially charged in adult court with stabbing and killing 15-year-old Tayler Pankow in 2010 during a dispute over an iPod. Salt Lake County prosecutors subsequently decided the facts didn't justify a murder charge and refiled the case in juvenile court as a second-degree felony manslaughter.

Bustos pleaded guilty and was sentenced to confinement by the Youth Parole Authority until his 21st birthday. After Bustos' sentencing, Salt Lake County District Attorney Sim Gill said his office had an "ethical and moral responsibility to get [the case] in the proper forum. It needs to be in juvenile court."

But Juvenile Court Judge Frederic Oddone, who also sits on the commission, said prosecutors should not have to engage in such maneuvering.

"I think this is a good concept,"Oddone said. "It may need more work on it, but right now it seems to be the right direction. The working group likes it and the people in the trenches like it."

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