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 selfincrimination 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
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–
–
–
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)
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–
–
–
–
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