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
Secure detention may be used
State
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
District of Columbia
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Only for
temporary
holding
purposes
Secure detention may be used
As a
sanction for
probation
As a
violations
disposition State
Only for
temporary
holding
purposes
As a
sanction for
probation
As a
violations
disposition
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
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 selfincrimination during detention proceeding? CO Supreme
Court (again) says no, the presumption of detention does
not neuter due process guarantees.