1. Bail, Detention and Preventive Detention Class 13

2. 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”)?

3. 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

4. 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?

5. 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)

6. 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

7. 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

8. 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

9. Most States allow detention facilities to be used for sanctioning as well as for the routine detaining (temporary holding) of juveniles while their cases are processed.

13. 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

14. 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

15. 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.