The Many Ironies of Juvenile Detention

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I have found over the years that many naysayers of detention alternatives for juvenile offenders are lacking in the body of research supporting alternatives to detention and are ignorant of the laws governing detention.

Some are politicians, victim advocates and even law-makers. I am more disturbed with the considerable number of prosecutors, defense attorneys and law enforcement unfamiliar with these restrictions — and they are directly involved with kids in the system.

I have been doing some work in North Carolina on detention alternatives over the past few months. I am impressed with the leadership of the secretary of the state’s Department of Juvenile Justice Linda Hayes, her Chief of Staff Robin Jenkins and Deputy Secretary Mike Rieder. They are determined to do the right thing with kids despite the shoe-string budget.

They can showcase many outstanding outcomes from using evidence-based practices. Take for instance Union County, outside of Charlotte. They pursued and got a MacArthur Foundation Action Network grant to develop strategies to reduce racial and ethnic disparities in the detention of kids. They have developed many tools that have produced outstanding results.

The coordinators of the effort in Union County are Karen Tucker and Becky Smith. They shared with me that early on in their effort they learned that law enforcement knew very little about the juvenile laws around detention. This frustrated police and sometimes made the relationship between the court and police difficult.

Tucker and Smith worked with law enforcement to introduce specialized training on juvenile laws — especially detention. They found that whether law enforcement agreed philosophically or not with some of the prohibitions on detention for kids, police were less frustrated with the system knowing that the law is the law. This frustration is reduced more when the training also introduces the research in support of the legal prohibitions against detention in many circumstances.

In Georgia up until 1989, the only provision in the code defining the use of detention stated that a youth can be detained if he or she requests detention, is a risk to persons and property, is a risk to take flight from the jurisdiction of the court or has no parent or guardian.

In 1989, this came under attack in the state Legislature as too broad and consequently increasing the unnecessary detention of kids. This attack resulted in the passage of a statute requiring that restraints on the freedom of a child — including detention — cannot be used unless there is probable cause to believe the child committed the offense and there is clear and convincing evidence to impose a restraint.

The Legislature went further and dropped property offenses as a reason for detention prior to adjudication and defined harm to others as “serious bodily injury.” Simple assault and simple battery for example are not detainable offenses unless involving family violence or there is a history of violent conduct. Property offenses are not detainable unless inherently dangerous to others such as residential burglary and theft of a motor vehicle. These changes marked a dramatic shift in Georgia’s philosophy toward detention of kids — theoretically making it more difficult to lock-up a kid.

Just in case this was not clear enough, the Legislature gave absolute mandates that kids cannot be detained to punish, treat or rehabilitate. This makes sense within the scope and purpose of juvenile justice and due process. Kids have a presumption of innocence, the same as adults. Even if adjudicated, the kid may not be found delinquent.

Here lies the philosophical distinction between adult and juvenile courts — just because a kid commits a delinquent act doesn’t necessarily make him delinquent. Many of us can recall our own delinquent mischief. We didn’t get arrested or go to jail or appear in court — but we’re doing all right despite our teenage antics.

In order to preserve the integrity of the court, the code prohibits judges from giving into the demands of victims, police and the community. From time to time I read a blog or hear a comment railing against the court for releasing kids. I simply don’t respond. I have taken an oath to uphold the law. So I do — I simply ignore the ignorant. I like this law!

The irony in these demands to “lock-em up” is that some of these proponents changed their tune when their own teenager got arrested. How quick we abandon our principles when it hits home. But that’s OK — they now understand the law. Good kids do stupid things and “but for the grace of God, there go I.”

Another irony in this debate whether to lock up or release a kid is that the law requires us to seek alternatives to detention. The law states that, “Whenever an accused child cannot be unconditionally released, conditional or supervised release that results in the least necessary interference with the liberty of the child shall be favored over more intrusive alternatives.” There should be no debate — the law is clear.

I think it’s time we get back to basics — the law. We need to do what Union County did and regularly train police on juvenile practice and procedure. Defense attorneys should always be asking in court this one question: If an alternative is available and can reduce the risk, than why not use it?


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