Bail, Detention and Preventive Detention

Class 15

Case of the Day• N.G. & S.C. v. Connecticut, 382 F.3d 225 (2004)

– State policy allows juveniles to be strip searched at juvenile detention facilities upon:

• Initial intake (Protection from hazards of contraband)• Re-admission (including return from furlough, hospital, or court

proceedings)• Reasonable belief that a detainee may be carrying dangerous

contraband

• The principal basis for detention is to await trial following arrest for a juvenile offense, and (in CT, at least) the majority of which are status offenses

• Searches in custodial setting justified by “special need,” reasonable suspicion and “legitimate gov’t interest” (Bell v Wolfish, Roe v Marcotte) (see N.G. opinion at 233)– Penological interest (Turner v Safley)?– Child protection interest as special need? But is there a danger of

re-victimization if child is traumatized? (Justice v City of Peachtree)

• Facts:– Parents of two young girls (ages 13 & 14) file suit alleging

violation of daughters’ Fourth Amendment rights• Neither girl was convicted of any crime, but were being held for trial

as status offenders• History of mental illness, suicide attempts, self-mutilation, and drug

and alcohol abuse• Eight searches of one, two of another

• Legal Issues:– Fourth Amendment?– Are strip searches “reasonably related to a penological

interest?” (Turner v. Safely)– What about juveniles’ “special needs?” (Board v. Earls)

• Protecting kids from themselves• State as de facto guardian has right to search• Strip searches as a means of detecting abuse/well-being

– Do strip searches pose risks to juveniles’ psychological health (i.e. humiliating experience)

• Second Circuit concludes:– Strip searches conducted on female juveniles after their

transfer from one detention facility to another violates Fourth Amendment.

– However, strip searches are lawful when:• Preformed upon initial admission to detention facility to

assess juveniles’ well-being and institutional safety• Reasonable belief that detainee may be carrying

dangerous contraband at admission– Strip searches exclude cavity searches

• Sotomayor Dissent– where’s the individualized suspicion? Need a higher bar– Is deterrence interest enough to compromise invasion of

bodily privacy?– Invitation to abuse by staff?

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)

Bases for Detention• Ensure appearance at court hearings

• Parent refusal to take the child back into the home

• “FINS” cases where there is probable cause that a delinquent act has been committed (CT statutes)

• Georgia, LA screening criteria– Balance of risk versus protective factors ?

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

Recurring Legal and Policy Issues on 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? When does legitimate interest (danger) trump 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.

Detention Decision-Making• Decision Stages – Alfredo A v Sup Ct LA County

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

• Detention hearing is not a Preliminary Hearing• 48 Hour rules (McLaughlin) for adults need not apply to

juveniles• 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

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

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

unregulated 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”)– Also, legitimate regulatory interest

• 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

Conditions in Detention• Do conditions matter? Not much in Schall• Should conditions matter? Must conditions

match “parental supervision”? (Rehnquist in Schall)

• Do conditions contribute to failure?– Yes, if it is overused, since conditions may be

iatrogenic– See: Facilities Review Panel v Coe (WV case)– Rights to education? MH services? Health care?

• When is detention = punishment? Indexed to conditions?

• Juveniles in Adult Jails– Sight and sound separation