Bail, Detention and Preventive Detention

Class 13

Right to Bail

• Juveniles do not have an absolute constitutional or statutory right to bail (L.O.W. v District Court)– Protective purposes of juvenile court intervention

supercede individual rights– Due process then, is limited to “fundamental fairness”

in the trial proceeding (Gault, Winship)– Does denial of bail weaken pre-trial preparations and

unduly disadvantage youthful defendant?– Does (informal) pretrial hearings provide ample

opportunity for judge to consider factors relevant to pretrial release or other forms of release (i.e., “the child’s needs and welfare”)?

• Bail can be set, for the usual reasons

• Some juvenile courts assume that the regulatory function of the juvenile detention hearing is a substitute for bail– Presumption of innocence/release limits use

of detention– Explicit consideration of child welfare issues– Tacit consideration of child’s assistance in his

or her defense– Statutory standards for detention also mitigate

its harm vis-à-vis child’s welfare

Bail Raises Difficult Questions about the Juvenile Court

• If we have a bail system, why then have a juvenile court? Isn’t the purpose to use the law’s teeth to protect children, not just ensure that they make their court date?

• Doesn’t a bail system reproduce the same inequalities for juveniles as for adults? Isn’t it double punishment for children (poor parents lead to delinquency, then poor parents increase risk of detention)?

• Presumption of guilt• Remedial value of detention?

DETENTION• Case Law

– Bell v Wolfish – use of detention to ensure appearance at trial, a regulatory function and not a penal one

– Barefoot v Estelle – validity of individualized predictions of dangerousness based on clinical criteria

– Schall v Martin – since it was regulatory, time limited and not punitive, detention did not violate due process – is this an excuse for minimal services in detention? (despite litigation over conditions)

ABA Juvenile Detention Standards• Purposes of Detention are:

– Protect the jurisdiction and process of courts– Public safety– Protect juvenile from bodily harm

• Purposes are NOT:– Punishment– Allow parents to avoid responsibility– Satisfy victim or police demands– Ease administrative access to juvenile– Facilitate interrogation– Substitute for inadequate alternatives

Schall v Martin (1984)• NYS Court of Appeals found that detention was

used for punishment, since most petitions were dismissed or defendants were released

• US Supreme Court: Judges can predict future danger best (reject social science claim)

• State interest in protecting juveniles justifies use of detention to help juveniles themselves avoid future crimes that would expose them to further court action and other harms (“his own folly”)

• Schall blamed for much overcrowding, leading to significant litigation all across the country– Schall narrowed and simplified standards for

detention, substituted procedural standards for substantive standards

Validity of Predictions

• Fagan & Guggenheim Research on Schall Sample– Short-term test – 14 days, 30 days – no

significant differences for violent offenses – Significant differences for all offense types– High rates of false positives among Schall

sample– FTA rates not significantly different– Long-term predictions were useless

State laws regarding purposes for which secure detention is allowed, 1997

State State

Alabama Montana Alaska Nebraska Arizona Nevada Arkansas New Hampshire California New Jersey Colorado New Mexico Connecticut New York Delaware North Carolina District of Columbia North Dakota Florida Ohio Georgia Oklahoma Hawaii Oregon Idaho Pennsylvania Illinois Rhode Island Indiana South Carolina Iowa South Dakota Kansas Tennessee Kentucky Texas Louisiana Utah Maine Vermont Maryland Virginia Massachusetts Washington Michigan West Virginia Minnesota Wisconsin Mississippi Wyoming Missouri

Secure detention may be used Secure detention may be used

Only for temporary

holding purposes

As a sanction for probation violations

As a disposition

Only for temporary

holding purposes

As a sanction for probation violations

As a disposition

Suggested Citation: Adapted from Sickmund, Melissa. Census of Juveniles in Residential Placement 1997 . Pittsburgh, PA: National Center for Juvenile Justice, 2000.

Impacts of Detention

• Strongest predictor of severity of sentence (disposition)

• Primary source of racial disparities and disproportionate minority confinement

• Unregulated punishment – generally poor services, poor staff, chaotic and violent places

• Remediation – race-blind screening, alternatives to detention, development of standards that invite regulation (See, Feld, at 355-7

Detention Decision-Making• Decision Stages

– Police Apprehension– Initial Hearing (24-72 hours) (CA: 48 hour rule invalid)– Continued Detention (14 days)

• Detention hearing is not a Preliminary Hearing• Factors that Influence Decision (State Studies)

– Prior record– Severity of charge, weapon (gun), Injury to victim– Appearance of responsible adult at each hearing– Demeanor, physical appearance– Gender and Race

• Alternatives are permissible at each stage

Rationales for Detention

• Juveniles cannot be detained in secure facilities for status offenses

• Does presumption of dangerousness (and therefore detention) for certain offenses automatically trigger right to bail?

• Do harsh conditions of pretrial confinement also trigger additional due process rights (including bail)? CO Supreme Court says no (People v Denver Juvenile Court, 1995)

• Does rebuttable presumption of dangerousness risk self-incrimination during detention proceeding? CO Supreme Court (again) says no, the presumption of detention does not neuter due process guarantees.