3.152 Criteria for Detention in Secure Facilities-Delinquency

Juveniles subject to the jurisdiction of the family court over delinquency should not be detained in a secure facility unless: a. They are fugitives from another jurisdiction; b. They request protection in writing in circumstances that present an immediate threat of serious physical injury; c. They are charged with murder in the first or second degree;

d. They are charged with a serious property crime or a crime of violence other than first or second degree murder which if committed by an adult would be a felony, and

i) They are already detained or on conditioned release
in connection with another delinquency proceeding;
ii) They have a demonstrable recent record of willful
failures to appear at family court proceedings;
iii) They have a demonstrable recent record of violent
conduct resulting in physical injury to others; or
iv) They have demonstrable recent record of adjudica-
tions for serious property offenses; and

e. 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.

Source:

See generally Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Interim Status, Standards 6.6 and 6.7 (tentative draft, 1977) [hereinafter cited as IJA/ABA, Interim Status]

Commentary

This standard describes the circumstances in which a juvenile subject to the jurisdiction of the family court over delinquency may be detained in a secure facility. It is intended to limit secure detention to those instances in which no less restrictive alternative is sufficient to protect the juvenile, the community, or the jurisdiction of a family court.

Under paragraph (a), juveniles who have fled from a jurisdiction in which a delinquency complaint or petition is pending against them may be detained in a secure facility unless nonsecure detention, conditioned or unconditioned release would be sufficient to significantly reduce the risk of flight.

Paragraph (b) recommends that protective custody be permitted only on the juvenile's written request coupled with circumstances that indicate that the juvenile is in immediate danger of serious physical injury. Such danger is intended to be more than being on the streets at night or the possibility that the juvenile may be harmed if he/she continues to get into trouble. See IJA/ABA, Interim Status, supra at Commentary to Standard 5.7. Protective custody provisions have sometimes functioned as convenient excuses for holding a child in custody because of other reasons or the lack of less restrictive facilities. Such a practice would not be authorized under the standard. If the juvenile is endangered by his/her parents, guardian, or primary caretaker in one of the ways set forth in Standard 3.113, a neglect or abuse action may be appropriate.

Paragraph (c) recommends that secure detention be permitted but not required when a juvenile is charged with first or second degree murder. This provision is somewhat analogous to the statutes in some states prohibiting adults charged with a capital offense from being released on bail.

Under paragraph (d), commission of a crime of violence short of murder but still equivalent to a felony, e.g., manslaughter, rape, or aggravated assault, is not in itself sufficient to detain a juvenile. The juvenile must also have, for example, a demonstrable record of committing violent offenses that result in physical injury to others or be on conditioned release or in detention pending adjudication, disposition, or appeal of another delinquency matter. Similarly, being charged with a serious property offense, e.g., burglary in the first degree or arson, must be coupled with a demonstrable record of adjudications for serious property offenses. The term "demonstrable record" is not intended to require introduction of a certified copy of a prior adjudication order, but should include more than allegations of prior misconduct. In order to protect the juvenile's rights and to assure that the decision to detain a juvenile in a secure facility was made in accordance with this standard and Standard 3.151, related standards recommend that a detention hearing be held before a family court judge within twenty-four hours and, if detention is continued, that it be subject to judicial review every seven days. See Standards 3.155 and 3.158.

The standard differs significantly from the IJA/ABA, Interim Status, supra provisions on which it is based in four ways. First, it urges that the proposed strict criteria be limited to detention in secure facilities. Second, in view of the large number of burglaries and other serious property offenses

3.153 Criteria and Procedures for Detention and Release—

Noncriminal Misbehavior

Persons subject to the jurisdiction of the family court over noncriminal misbehavior should not be detained in secure detention facilities. A juvenile subject to that jurisdiction should be placed in a foster home or shelter facility pending adjudication, disposition, or appeal only when the juvenile is in danger of imminent bodily harm and no less coercive measure will reduce the risk or when there is no person willing and able to provide supervision and care.

Written rules and guidelines should be developed by the agency responsible for intake services to govern detention and release decisions.

Commentary

Although precise national data is not yet available, a number of studies have estimated that from 20 percent to over 50 percent of juveniles detained prior to disposition are status offenders. See J. Poulin, J. Levitt, T. Young, and D. Puppenfort, Juveniles in Detention Centers and Jails: An Analysis of State Variations During the Mid 1970s (1980); Airessohn and Gonion, "Reducing the Juvenile Detention Rate," 24 Juvenile Justice 28 (1973); Sumner, "Locking Them Up," 17 Crime and Delinquency 168 (1971); R. Sarri, Under Lock and Key: Juveniles in Jails and Detention, 20 (1974);

a. The nature and seriousness of the alleged conduct;

b. The juvenile's age and maturity;

c. The nature and number of contacts with the intake unit or family court that the juvenile and his/her family has had;

d. The outcome of those contacts; and

e. The presence of a parent, guardian, or other adult able and willing to provide supervision and care for the juvenile.

If unconditional release is determined not to be appropriate,

the least restrictive alternative should be selected. When it is

necessary to provide temporary custody for a juvenile pending a noncriminal misbehavior proceeding, every effort should be made to provide such custody in the least restrictive setting possible and to assure that contact with juveniles detained under Standard 3.151 or who have been adjudicated delinquent is minimized. In no case should a juvenile be placed in a facility in which he/she has regular contact with adults accused or convicted of a criminal offense.

Sources:

See generally National Advisory Committee on Criminal Justice Standards and Goals, Report of the Task Force on Juvenile Justice and Delinquency Prevention, Standard 12.8 (1976) [hereinafter cited as Report of the Task Force]; 18 U.S.C. §5633(a) (12) (1978).

Corrections in the United States" reprinted in President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Corrections (1967). As with detention of juveniles in general, the reasons for and rates of detention of juveniles accused of engaging in noncriminal misbehavior vary widely among and within states, although as noted by the Report of the Task Force "... detention is presently the most convenient method for the pre-adjudicatory handling of juveniles exhibiting 'status' types of behavior because other resources . . . are either not available or

available only on a very selective basis." Report of the Task Force, supra at Commentary to Standard 12.8. Although the number and percentage of such children who are detained appear to be declining and are expected to continue to do so, in part due to the implementation of the Juvenile Justice and Delinquency Prevention Act of 1974, 42 U.S.C. Sections 5601, 5633(a) (12) (Supp. 1979) there is still a need to define the circumstances and conditions under which juveniles subject to the jurisdiction of the family court over noncriminal misbehavior may be detained See Standard 3.112.

The standard makes clear, at the outset, that persons accused of noncriminal misbehavior-juveniles or adults alleged to have repeatedly misused their lawful parental authority should never be placed in a secure detention center or jail. See Juvenile Justice and Delinquency Prevention Act of 1974, supra; Report of the Task Force, supra. In most cases, such persons should be released without conditions upon their promise to appear. However, the standard provides that juveniles may be placed in a foster home or shelter

3.154 Criteria and Procedures for Imposition of Protective Measures in Neglect and Abuse Cases

Written rules and guidelines should be developed by the agency responsible for intake services to govern imposition of protective measures prior to adjudication or disposition of matters submitted pursuant to the jurisdiction of the family court over neglect and abuse.

In determining whether to impose conditions to protect a juvenile alleged to be neglected and abused or to place the juvenile in emergency custody, the intake officer should consider: the nature and seriousness of the alleged neglect or abuse and the circumstances in which it occurred; the juvenile's age and maturity; the nature and number of contacts with the intake unit and the family court which the family has had; and the presence of a parent, guardian, relative, or other person with whom the juvenile has substantial ties, willing and able to provide supervision and care.

Conditions should not be imposed on a juvenile's parents, guardian, or primary caretaker unless necessary to protect the juvenile against any of the harms set forth in Standard 3.113(b)-(i).

Juveniles should not be placed in emergency custody unless: a. They are unable to care for themselves and there is no parent, guardian, relative, or other person willing and able to provide supervision and care; b. There is a substantial risk that they would suffer one of the forms of neglect or abuse set forth in Standard 3.113(b)-(h) if they were returned home; c. There is a substantial risk that they will fail to or be prevented from appearing at any family court proceeding resulting from the filing of the complaint; and d. There is no other measure that will provide adequate protection.

When in accordance with the above criteria and factors it is determined that emergency custody is required every effort should be made to provide such custody in the most homelike setting possible. Juveniles subject to the neglect and abuse jurisdiction of the family court should not be placed in detention or correctional facilities or facilities housing juveniles or adults accused of or found to have committed a delinquent or criminal offense.

Sources:

See generally U.S. Department of Health, Education and Welfare, Model Act for Family Courts, Section 20 (1975); see also Institute of Judicial Administration/ American Bar Association Joint Commission on Juvenile Justice Standards, Standards Relating to Neglect and Abuse, Standard 4.3 (tentative draft, 1977) [hereinafter cited as IJA/ABA, Neglect].

Commentary

This standard sets forth the factors and circumstances that an intake officer should consider in deciding whether protective measures should be imposed pending adjudication and disposition of a neglect and abuse case. As in the other standards dealing with discretionary decisions by the intake. officer, it urges that written rules and guidelines be issued by the agency responsible for intake services to promote consistency. See Standards 3.143-3.145, 3.151, and 3.153; see, e.g., Florida Department of Health and Rehabilitative Services, Manual: Intake for Delinquency and Dependency Juvenile Programs, Section 6.7 (1976). The family court, police, child protective services agency, and other state and local agencies affected by the imposition of protective condition or the placement of children alleged to have been neglected or abused in emergency custody should participate in the development of such regulations. The National Advisory Committee recommends the development of rules and guidelines governing decisions to impose protective measures in neglect and abuse cases as an action that states can take immediately, without a major reallocation of resources, to improve the administration of juvenile justice. The factors listed in the second paragraph of the standard are intended to serve as guides for the decision-making and rule-making processes. They are similar to those that the intake officer should consider in making the intake decision. See Standard 3.145.

Conditions should only be imposed on a juvenile's parents or parental surrogates when necessary to protect the child