PREVENTIVE DETENTION OF JUVENILES

BY

NICOLE THOMPSON

December, 2002

Keywords: Juvenile, Pre-trial detention, Preventive detention, youth, juvenile court

Juvenile detention originated in 1905, only six years after the nations first juvenile court was established (Roush, 1999,p.64). Even though it has been around for nearly one-hundred years, juvenile detention continues to suffer from a lack of proper role and lack of proper function (Roush, 1999,p.64). The most basic role of detention is preventive detention. Preventive detention is keeping the accused in custody prior to trial because the accused is suspected of being a danger to himself, a danger to others in the community, or the possibility of additional violations occurring if the juvenile is released pending adjudication and sentencing (Seigel, Welsh, and Senna, 2003).

In juvenile cases were there is a finding of guilt the accused is detained in a juvenile detention facility. Throughout its history the juvenile justice system has had many landmark cases that have changed the way in which juveniles are handled. The case Kent versus United States brought much concern to the welfare of children. A few years later, In re Gault established that juveniles were entitled to the same procedural due process protections as adults. This case established that the juveniles were entitled to such rights as the right to counsel, the right to notice of specific charges being filed against the juvenile, the right to confront and cross examine witnesses, the right to remain silent, and the right to subpoena witnesses in the juvenile's defense. In re Winship provided that guilt must be proven "beyond a reasonable doubt" in juvenile proceedings just as in adult proceedings. (Giovanni, 2002, pp.54,55).

The United States Supreme Court case Schall versus Martin made it possible for a judge to deny a juvenile release prior to trial. A judge does this on the grounds that the juveniles may be dangerous to themselves, as well as, the community (Seigel,Welsh,and Senna, 2003). When Gregory Martin was arrested on December 13, 1977, in New York City on charges of robbery, assault, and criminal possession of a weapon, he was kept overnight because he lied about his place of residence. The next day he was brought to juvenile court for an "initial appearance" accompanied by his grandmother. On the charges for which he was arrested, the judge ordered Gregory Martin detained pending an adjudication hearing. Later, after trial, Martin was sentenced to two years probation.

While in pre-trial detention, Martin's attorney filed a class action lawsuit on the behalf of all juveniles subject to preventive detention, charging that this form of detention was a denial of due-process rights of the juveniles under the Fifth and Fourteenth amendments. The New York appellate courts upheld Martin's claim on the ground that at adjudication most delinquents are placed on probation; it was therefore unfair to incarcerate and hold the juvenile before the trial and the finding of guilt. The prosecution brought the case to the United States Supreme Court for final judgment. The United States Supreme Court upheld the states right to place juveniles in preventive detention, holding that the practice serves the legitimate objective of protecting both the juvenile and society from pre-trial crime. The court also found that detention based on the prediction of future behavior was not a violation of the due process rights of the juvenile (Seigel, Welsh, and Senna, 2003).

An intake officer should be notified within twenty-four hours of the time the juvenile is taken into custody by a law enforcement officer on an allegation of delinquency, violation of the terms and conditions of the juvenile's probation; or violation of a previous court order. The intake officer is responsible for making a detention decision. The prosecuting attorney should also be notified within twenty-four hours, in order for the prosecutor to prepare the charging documents for filing.

According to (Arkansas Code Annotated 9-27-322) in determining whether to detain a juvenile pending a detention hearing who has been taken into custody on an allegation of delinquency, an allegation of a violation of the terms and conditions of a juvenile's probation; or an allegation of a violation of a previous court order, the intake officer should consider the following facts: the juveniles ties to the community including; the place and length of residence of the juvenile and his family; the juvenile's school attendance; the juvenile's present and past employment; family relationships; references; and nature of the alleged offense, including: whether the offense would constitute a felony or misdemeanor; the use of force or violence; prior juvenile or criminal record; and any history of failure to appear for court appearances. In most cases the intake officer may determine that there is no alternative to detention if detention is necessary: to prevent imminent bodily harm to the juvenile or to another; or to prevent flight when the juvenile is a fugitive or has escaped from another jurisdiction (Arkansas Code Annotated 9-27-322). If all or some apply then the juvenile will be sent to detention prior to the detention hearing and the adjudication hearing.

If a juvenile remains in detention, a detention hearing should be held no later than seventy-two hours after the juvenile is taken into custody. If however, the juvenile's seventy-two hour time period ends on a Saturday, Sunday, or on a holiday then the hearing should be held on the next business day (Arkansas code Annotated p.465). In all instances where a juvenile is detained, the juvenile may be held for a seventy-two hour holdover in a juvenile facility if bed space is available. If no beds are available the juvenile may be held in an adult jail or lock up may also be used provided by (Arkansas Code Annotated 9-27-336) which states that a juvenile may be held in a detention facility if he or she has been away from home for more than twenty-four hours, when the parent or guardian lives out of state, or within a fifty-mile driving distance, for purposes of identification, processing or arranging for release or transfer to an alternative facility. In such cases the juvenile should be held the minimum time necessary to complete these actions. A juvenile should not be held in a facility utilized for incarcerating adults (Arkansas Code Annotated p519). All instances where a juvenile is detained the intake officer should immediately make every effort possible to notify the juvenile's parent or guardian (Arkansas Code Annotated p466).

At the detention hearing the judge should determine whether or not the juvenile has an attorney. If the juvenile is without representation, the court should inquire as to whether the juvenile will income qualify for court appointed counsel. The court should also make sure that the juvenile, his parent or legal guardian and his attorney has received prior written notice of the time, place, and purpose of the detention hearing. If the parent or guardian cannot be located the judge may proceed with the detention only after it has been determined that there has been a reasonable diligent effort to locate the parent or legal guardian. When the court proceeds the judge should inform the juvenile the reason that continued detention is being sought; that he or she is not required to say anything, and that anything he or she says may be used against him or her in the proceedings, and that the juvenile has the right to consult with his attorney and his parent or legal guardian if the same can be located prior to proceeding with the hearing.

The prosecutor will have the initial burden to prove that by clear and convincing evidence that the restraint on the juvenile's liberty is necessary and that there is no less restrictive alternative that will reduce the risk of flight, or of serious harm to property or to the physical safety of the juvenile or others. Witness will be called to give testimony of the alleged incident and testimony as to why continued detention is being requested. Hearsay evidence is allowed in this phase of the proceedings. Often testimony is given as to the lack of control the parents have over the juvenile, the lack of hours the parent or guardian is available to supervise the juvenile or the oppositional defiant nature of the juvenile. This testimony is often given from information given by parent to the authorities. After the prosecution has put on all its proof the juvenile is entitle to call witness that will support his contention that continued detention is not necessary. If the judge determines that probable cause exist that the juvenile has committed the offense as alleged and that detention is proper, then the juvenile is ordered detained pending the next phase of the trial. The adjudication hearing may be held fourteen days from the detention hearing meaning the juvenile would be held in a detention facility for an additional fourteen day before the hearing would be held (Arkansas Code Annotated p505).

WHAT SHOULD A JUVENILE DETENTION PROVIDE?

A juvenile being held for pre-trial detention must be kept away from juveniles who have already been found delinquent and are being held in a detention facility as a method of punishment. The pre-trial detention must also be carried out so as to be kept away from sight and sound of all adults incarcerated at a facility. A juvenile detention center must meet minimum standards to be certified as a juvenile detention facility. The facility must provide a minimum amount of hours for education of the juvenile each and every day the juvenile is detained at the facility. The detention facility must employ male and female guards twenty-four hours a day. The facility must provide an atmosphere that promotes a release of emotional tension; provides a constructive outlet for physical energy; teaches fundamentals of recreational activities; gives the youth self-confidence in wholesome pursuits; teaches fair play, instills rule following and teamwork in the youth, provides a socially acceptable outlet for hostility; gives the youth a better understanding of himself or herself; develops a new interest and skills to be followed upon release; keeps the youth busy by providing a structure for his or her day; develops good health habits and physique; breaks down resistance to adults and adult standards; and permits observation of the youth' s behavior, which aids in social diagnosis (Giovanni, 2002, p. 58).

According to Roush and McMillen (1999), detention activities should be enjoyable physically and mentally challenging, purposeful, educational, and helpful. Programs should also provide outlets for youthful energy, emphasize the positive and focus on the youth's strengths (Roush and McMillen, 1999). These facilities are expected to provide the youth with a structured environment that provides guidance and behavior modification for the youth in a short period of time. Something that the parent or legal guardian has not been able to accomplish in all the years of the juvenile's life.

The previously noted lack of proper role and function of detention limits efforts to measure the effectivemess of detention programming. There is a limited amount of literature regarding the ability of detention programs to effect positive behavior changes in the short time in which juveniles are detained. As noted by Howell (1997), "We have virtually no knowledge of the effects of the juvenile detention experience on detained youth" (Howell, 1997 p84). This limits our efforts to measure the effectiveness of preventive detention. Some believe that the detention experience will jolt the juvenile into reality and assist to modify the youth’s behavior in the future. Others feel that the detention is necessary for protection only. Because of the great expense of operating a detention facility and the growing number of troubled youth we have in society today there are some changes in recent opinions as to what will qualify as preventive detention.

In recent years electronic monitoring has been recognized as a form of preventive detention. In this type of detention the juvenile is put on an electronic monitor, this monitor is in the form of an ankle bracelet. The parent or the legal guardian must have a home telephone for this device to work. The monitoring company would install a device on the telephone that will allow the computer to electronically call the residence of the juvenile at random times to monitor whether the juvenile is within the area allowed around the home. The device can be set to where the juvenile would have to stay indoors or the device can be set to where the juvenile would be allowed to go outside his home but not outside the parameters of his yard. Supporters of this type of preventive detention argue that this accomplishes the same purposes as the detention facilities but is far less expensive to operate (Teresa French).

The use of preventive detention has been questioned in the past about its effects on the juvenile. Many advocates of preventive detention argue that dangerous juvenile offenders should not be granted bail and pre-trial release because they would then have and opportunity to intimidate witnesses, and commit further crimes. Opponents retaliate that defendants are innocent until proven guilty and therefore should be allowed freedom before trial.

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Howell, J. C. (1997). Juvenile Justice and Youth Violence Thousand Oaks, CA: Sage.

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Siegel, L.J., Welsh, B.C., and Senna, J.J. (2003). Juvenile Delinquency: Theory, Practice, and Law. Belmont, CA: Thomson Learning, Inc.

French, Teresa. (2002, November 15). [Personal Inerview].

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