Students from Bishop Hendricken High School, top, listen to yesterday’s arguments in the “gap kids” controversy and other cases. Justice Francis X. Flaherty, second from right, asks a question during arguments. From left are Justices Paul Suttell and Maureen McKenna Goldberg, Chief Justice Frank Williams and Justice William Robinson.

The Providence Journal / Mary Murphy

WARWICK

As students looked on at Bishop Hendricken High School yesterday, the state Supreme Court grilled lawyers about whether felony charges should be dismissed against the “gap kids” who were charged during the 130 days when Rhode Island prosecuted 17-year-olds as adults.

While it usually hears arguments in Providence, the Supreme Court has revived the tradition of “riding the circuit,” and yesterday morning it convened at the Catholic school in Warwick to hear arguments in the “gap kids” controversy and other cases.

In July, the General Assembly adopted Governor Carcieri’s budget proposal to save money by treating 17-year-olds as adults in criminal matters. But the savings never materialized, and on Nov. 7 the Assembly repealed the law, without making the repeal retroactive. That left about 500 “gap kids” charged as adults between July 1 and Nov. 8.

In February, Superior Court Judge Daniel A. Procaccini dismissed felony charges filed against 115 of those teens, and he decided to hold four indictments “in abeyance” pending Family Court hearings — including the indictment of Ryan Greenberg, who faces a second-degree murder charge in connection with the boating death of another Barrington teenager. The Supreme Court is now weighing appeals in those cases.

Yesterday, the justices zeroed in on why the law was changed in the first place.

“Why is this such a hot topic?” Justice Maureen McKenna Goldberg asked. “Heretofore, 17-year-olds were sufficiently and justly adjudicated in the Family Court, with the exception of those who are charged with the most heinous offenses.”

“I don’t quarrel with that,” Assistant Attorney General Aaron L. Weisman said. But he noted that the General Assembly did change the law before changing it back.

“All because of an effort to save money,” Supreme Court Chief Justice Frank J. Williams said. “How much money?”

Weisman said, “They contemplated savings of up to $3.6 million.”

“And how much did they save?” Williams asked.

Weisman said, “It turned out they did not save money.”

“Of course,” Williams said. “Every single proposal that’s been made in the past two years, whether it’s furlough days or stuff like this, has not saved a single dime. And we’re talking about people here.”

Weisman said there were reasons behind the decision. “Obviously, it is far more expensive to keep someone at the Training School than to incarcerate them at the ACI,” he said.

“What about A.T. Wall?” Goldberg asked, referring to the state corrections director. “Didn’t he testify to just the opposite?”

Weisman said 17-year-olds were held in protective custody at the Adult Correctional Institutions, and that proved “slightly more expensive” than the Training School.

“What is your office’s position on these 17-year-olds? Where do you think they ought to be, Mr. Weisman?” Goldberg asked.

Weisman said Attorney General Patrick C. Lynch was not in favor of the legislation that treated 17-year-olds as adults. But, he said, “We honor our commitment to execute the laws whether we agreed or disagreed with them at the time.”

Williams said, “We commend you for that.”

Deputy Public Defender Barbara Hurst argued that Procaccini “should have fashioned a remedy that recognizes the unconstitutionality of the gap itself.” She asked, “What earthly reason in the law is there to not apply the benefit of [the November repeal] to these kids and let Family Court adjudicate them?”

Justice Paul A. Suttell said, “What about fiscal savings? Isn’t that a rational basis?”

Hurst said, “What Judge Procaccini pulled out of the sky as possible rational bases evaporated when we produced evidence.” For example, she said, “We produced experts in the field” and a letter in which Lynch said youths are more likely to reoffend when they’re prosecuted as adults.

Justice Francis X. Flaherty questioned whether that shows there was no rational basis or merely that “they might be wrong.”

Hurst said, “It is one thing to search for a conceivable rational basis. It’s another to speculate when we produce evidence showing there is no rational relationship between the purpose of the General Assembly, whatever it might have been, and the means chosen.”

After the hearing, Lynch issued a statement saying, “Anyone who heard today’s arguments could easily sense the frustration of our Supreme Court justices, who have the ultimate task of guiding our criminal justice system out of this morass. Constitutionally and statutorily, the attorney general’s office doesn’t exist to make or pass laws; we exist to uphold and enforce the laws.”

While he had criticized the law, Lynch had opposed making its repeal retroactive. And yesterday he said, “We look forward to receiving clarity and guidance from the Supreme Court so that we may proceed to seek justice for the victims.”

Williams said the court hopes to issue decisions in these cases, and others, by July 4.

Mary Ryan — a Burrillville woman whose lawsuit against Catholic Church officials was dismissed because she waited too long to sue after she was raped by a priest in 1982 — contacted The Journal to object to the Supreme Court hearing arguments at Bishop Hendricken. “The court is entangling religion with the state,” she said. “It’s totally inappropriate.”

Williams disagreed, saying, “We go everywhere. It was an open forum where the public was invited.”

efitzpat@projo.com