DETENTION ADVOCACY

ETHICAL PRINCIPLES: EXPRESSED INTERESTS

• The JA/ABA Juvenile Justice Standards and RPC are clear that defenders have an ethical obligation to zealously advocate for the expressed interests of each juvenile client, even when the client’s expressed legitimate interest conflicts with the defender’s sound legal advice or with the defender’s own personal judgment about what might be in the client’s best interests.

• These standards apply regardless of the client’s age, education level, and perceived or measured intelligence level, so long as the client is “capable of considered judgment on his or her own behalf.”

• In every case where there is conflict between a juvenile client accused of an offense and his or her parents, and, in particular, in cases where there is a possible conflict of interest between the client and his or her parents, as in cases in which either the parent or one of the client’s siblings is a complainant, counsel should inform all parties involved that counsel represents the expressed legitimate interests of the client.

CONSULT EARLY WITH CLIENT BEFORE HEARING

• Find out the client’s expressed interests regarding detention and detention alternatives, including placement with family members or in a community-based program, as well as any specific reasons that mitigate against detention of the client, including age, special needs, special strengths and talents, health concerns, and mental health issues.

• The initial meeting with the client should also include discussion of: attorney-client confidentiality; the attorney’s ethical duty to zealously advocate for the child’s expressed interests; the client’s right to remain silent; and the client’s objectives for the case. Consultation with the client also includes explaining the roles of each of the courtroom players, the purpose of each part of the initial hearing, and preparing the child for the accusatory character of the hearing. If the child is detained counsel should inquire whether there is any evidence that the child has been harassed or mistreated by either staff or other inmates. (Caution if there is reason to question capacity to proceed.)

Dealing With Parents and Staff• Although defenders cannot give the client’s parent or guardian legal advice, as

part of their ethical duty to zealously represent their juvenile clients, defenders should be sure to prepare the client’s parent or guardian for the interview with the intake probation officer.

• Defenders should relate to the parent the purpose of the interview, warn the parent that everything the parent says will likely be recited in open court, inform the parent that the judge might solicit the parent’s opinion about the client’s behavior and appropriate placement options in open court, and tell the parent the importance of supporting release when speaking with the court counselor. Defenders should also cover the specific areas likely to be discussed at the hearing, including school attendance, extracurricular activities and hobbies, parental control, dangerousness, and risk of flight.

Preparation and Investigation• Defense counsel should conduct a complete investigation of the client’s history in preparation for the

detention hearing. Counsel should make every effort to obtain the client’s school/special ed., medical and treatment records, and talk with the client’s parent or guardian, teachers, and any other adults to whom the client is close. The social history from the client should cover information about the client’s strengths and skills, and the client’s prior involvement in the system, as well as the client’s special health needs, mental health needs, and family history.

• Defense counsel should also investigate the allegations against the client. Counsel should request discovery, receive and review any existing prior delinquency, truancy, and dependency record, as well as the police reports in the case. Counsel should also talk with the client about potential exculpatory information.

• Defense counsel should advocate with the court counselor and the prosecutor, as well as any involved providers, before the hearing. Counsel should request, receive, and review any risk assessment instrument (RAI) and detention reports the court counselor intends to rely on in the detention hearing. Question allegations of gang involvement. Demand to see placement and treatment paperwork. Don’t accept rejections at face value. Subpoena witnesses, if necessary.

Shackling and Hearing Conditions

• Restraints-7B-2402.1. Restraint of juveniles in courtroom.Only when the judge finds the restraint to be reasonably necessary to maintain order,

prevent the juvenile's escape, or provide for the safety of the courtroom. Whenever practical, the judge shall provide the juvenile and the juvenile's attorney an opportunity to be heard to contest the use of restraints before the judge orders the use of restraints. If restraints are ordered, the judge shall make findings of fact in support of the order. • Video hearings “allows the court and the juvenile to see and hear each other. If the juvenile

has counsel, the juvenile may communicate fully and confidentially with the juvenile's attorney during the proceeding. Prior to the use of audio and video transmission, the procedures and type of equipment for audio and video transmission shall be submitted to the Administrative Office of the Courts by the chief district court judge and approved by the Administrative Office of the Courts.

• 7B-2402. Open hearings/Media

Probable Cause• The probable cause standard, which is a very low evidentiary standard, is defined as 1)

whether there is probable cause to believe that a crime was committed and 2) whether there is probable cause to believe that the child was involved.

• The State has the burden of proof.• Carefully weigh whether to waive a probable cause hearing. Even if there is no chance of

winning the hearing, counsel can use the hearing as an opportunity for discovery, and for sworn statements to use at trial. Use waiver as leverage. Weigh transfer threats.

• Consider using experts to do evaluations. • Particularly if the client is detained, where counsel receives exculpatory information after

the probable cause hearing, counsel should immediately file a motion to reopen the hearing.

Statutory Criteria• Defenders should go into detention hearings knowing the purpose clause of the

statutes and, specifically, the statutory criteria necessary to imposing detention. Defenders should make an abbreviated and portable reference packet that includes the statute(7B-1903) and court rules, the statute’s legislative history, and synopses of recent and relevant case law.

• Defenders should argue from the position that detention is the last resort. Most statutes, as they are constructed, support this position, and typically, judges have a great deal of discretion. The discretion lies in the determination of two specific factors: a client’s potential dangerousness to the community and risk of flight.

• Juveniles should be held in the least restrictive conditions necessary to ensure the safety of the community and the return of the juvenile to court.

7B-1903• Reasonable factual basis that juvenile committed the offense AND• Best interests-nonsecure placement• Felony and DANGER to persons or property• Assault or Use of Weapon, DWI• WILLFUL failure to appear with proper NOTICE or reason to believe wont appear

in court• Absconder• Fear of self-inflicted injury-ONLY for 24 hours to determine need for hospital

commitment-continuous supervision and physician notified.• Undisciplined –only 24 hours to evaluate

Alternatives to Detention: Have a Plan

• An alternative to detention is whatever creative plan a defender and community partners can devise that is responsive to the needs of the client and addresses the concerns of the court. To craft individualized detention plans using community-based resources, defenders must become familiar with the available detention alternatives.

• Defenders should compile a list of each community-based program, with contact names and phone numbers, addresses, target populations, and develop a plan to keep the list updated.

• Defenders should visit community programs and aim to develop relationships with staff members.

• Defenders should challenge any decision to detain based on a lack of community resources. The failure of the community to provide suitable, evidence-based programs responsive to the client’s needs does not mean that the client should be detained.

Research on Incarceration Impact

• Defenders must be familiar with their local detention facilities to be able to argue convincingly concerning the harmful effects of detention. To that end, defenders should arrange tours of their local secure and non-secure detention facilities. They should request copies of each facility’s standard operating procedures, and rules regarding how staff should treat residents.

• File Freedom of Information Act requests about criminal allegations, staff training guides, discipline guidelines, and statistics on the use of discipline.

• Finally, juvenile defenders should talk with their clients about their experiences with different staff members at different facilities.

Conditions in Detention Facilities

• Defenders should be aware of and argue the detention facilities’ deficiencies, if they exist, including the limited or nonexistent access to special education, mental health treatment, and adequate medical care, increased chances of recidivism, and consequences of overcrowding and harsh treatment.

• Defenders should also be aware of and argue the advantages of staying on release, including continued involvement in family, school, and positive peer relationships.

• Separate from adults

Written Findings of Fact and Court Orders

• Counsel should ensure that, in as timely a manner as possible, counsel receives a clear, concise written order documenting the court’s findings with respect to the need for detention of the client.

• If counsel believes any conditions are excessively punitive or unnecessary, counsel should state that position on the record. If the order is ambiguous, counsel should seek clarification.

• Defenders should work to ensure that detention orders specify any special conditions or needs of the client.

• Both defense counsel and the client should receive copies of the order in a timely manner, and counsel should review the order with the client as soon as is practicable.

• Defense counsel should advocate for juvenile detention hearings to be recorded and transcribed, as needed.

Conditions of Release• Counsel should adequately explain the conditions of release to the client,

and provide the client with the name and telephone number of the court counselor or juvenile worker assigned to monitor the client’s case.

• Counsel should also contact the worker, provide counsel’s name, address, and phone number, and let the worker know that the worker should consider counsel another resource as the client’s case progresses.

• If a client is released, counsel should ensure that the client’s need for safety is met and that agencies are held responsible for the provision of any needed services.

Waiving Rights and Additional Hearings

• If the client is detained, defense counsel should create and seek out opportunities to win release. In particular, defense counsel should file motions to reconsider, review or modify the detention decision based on evidence showing, inter alia: that time in detention has changed the circumstances of the case such that the child can be released into the community; that new evidence discovered after the probable cause hearing casts doubt on the correctness of the probable cause determination; or that defense counsel has, since the detention decision, been able to create a release plan that addresses the specific reasons the court cited in support of detention. After the initial secure custody review hearing, further hearings may be waived by the juvenile through counsel.

• Waiver of 10 day reviews should occur only with the consent of the juvenile and may provide a basis for a concession by the State, such as an earlier date for adjudication or a plea agreement.

• If the client is detained, and counsel has exhausted the standard procedures available to obtain the client’s release, defense counsel consider filing a writ of habeas corpus or mandamus or motions for review.

Initial Secure Custody Hearing/First Appearances

• 7B-1906: No juvenile shall be held under a secure custody order for more than five calendar days or under a nonsecure custody order for more than seven calendar days without a hearing on the merits or an initial hearing to determine the need for continued custody. A hearing conducted under this subsection may not be continued or waived.

• The State shall bear the burden at every stage of the proceedings to provide clear and convincing evidence that restraints on the juvenile's liberty are necessary and that no less intrusive alternative will suffice.

• The court shall not be bound by the usual rules of evidence at the hearings.

Predisposition Detention

• 7B-2506• Hearings every 10 days• Cannot waive more than 30 days and ONLY with consent

of juvenile• Violation of probation, but only if damage to property or

injury to persons alleged.

Post-Release Violation DetentionThe court may not hold a juvenile under N.C.G.S. 7B-1903(b) (4) (cause to believe that the juvenile will not appear in court) because it only applies to juveniles who have a delinquency charge pending against them, not to juveniles who have already been adjudicated.For several years, there was some confusion about whether judges should hold review hearings after the juvenile was adjudicated delinquent. Although G.S. 7B-1906(b) stated that review hearings were required as long as the juvenile remains in secure or nonsecure custody. Some judges declined to hold review hearings. In 2009, the court of appeals held that juveniles are entitled to review hearings after adjudication. In re D.L.H., 198 N.C. App. 286, 294 (2009), overruled on other grounds, 364 N.C. 214 (20). The General Assembly amended G.S. 7B-1903 in 2015 to codify the holding in D.L.H.See 2015 N.C. Sess. Laws Ch. 58 (H 879)Under current G.S. 7B-1903(c), the court must hold review hearings every 10 calendar days for juveniles in secure custody after adjudication. The juvenile may waive further hearings for no more than 30 calendar days.

Detention for Placement?

• Unfortunately, some placements can take a long time, even months, to materialize, while the juvenile remains in detention with no services or treatment. Juvenile defense counsel should always consider arguing that a juvenile pending placement is also entitled to 10-day review hearings.

• Demand to see placement and treatment paperwork and rejection letters, as well as review of any evaluations.

• Issue subpoenas and hold providers and MCO accountable to meet needs of client.

Intermittent Confinement• Dispositional alternatives provided under N.C.G.S. -2506 (12) and (20)

amended in 2015 revision of juvenile code,• In the Matter of Jessica Renea Hartsock, 158 N.C. App. 287, 580 S.E.2d 395

(2003). Counsel should be aware that in some jurisdictions, the court will order that the juvenile be placed in detention “at the discretion of the court counselor.” Under Hartsock, the court may not delegate its authority to impose intermittent confinement. When you are at disposition for a child and the judge indicates she will include stayed intermittent confinement days as part of the order, ask for there to be language that specifies that the days cannot be imposed unless the child is brought back in front of the judge on an MFR. Cite Hartsock when making this request.

Credit for Time Served?• When a juvenile is ordered days in detention as part of disposition, and has already spent time in detention pre-

adjudication or post-disposition.• When a juvenile is committed to a youth development center and has spent time in detention prior to commitment. If an

attorney requests credit for time served on a commitment, the attorney should request that the judge specify the amount of detention time served in the dispositional order so that the administrators at the youth development center are fully knowledgeable about the juvenile’s prior confinement when determining a date of a release for the juvenile.

• When a juvenile is transferred to superior court. If requested, superior court judges typically grant the time spent in detention towards an active sentenced in the Department of Corrections.

• In 2010, the Supreme Court of North Carolina held that juveniles are not entitled to credit for time served in secure custody. In re D.L.H., 364 N.C. 214, 216 (2010). The decision overruled older decisions issued by the court of appeals, such as In re R.T.L.

Although juveniles are no longer entitled to credit for time spent in secure custody, there is no bar to the court taking such time into account at the dispositional hearing. The court has a great deal of latitude at the dispositional hearing. See G.S. 7B-2501 (granting the court authority to select the “most appropriate disposition” for the juvenile). Under G.S. 7B-2500, a dispositional order should promote public safety, emphasize accountability and responsibility, and provide the appropriate consequences, treatment, training, and rehabilitation to assist the juvenile toward becoming a responsible and productive member of the community. If the juvenile has spent a significant amount of time in secure custody or received services while in secure custody, counsel should argue that many of the purposes of disposition have already been met.

Confinement Pending Appeal?• If the juvenile appeals the case,the court must release the juvenile with or without conditions,

unless it enters a temporary order affecting custody or placement. Such an order must be in writing and must state “compelling reasons” that the placement or custody is in the best interests of the juvenile or the State. G.S. 7B-2605;In re J.J., Jr.216 N.C. App. 366, 376 (2011). The court of appeals has held that findings included in a dispositional order can support a custody order under G.S. 7B-2506. In re R.A.S., 166 N.C. App. 515(2004) (unpublished). However, a finding that no placement is available for the juvenile during the appeal is “clearly insufficient.”

• In re W.G.C.166 N.C. App. 516(2004) (unpublished).If counsel gives oral notice of appeal from a dispositional order imposing a period of confinement, counsel should ask the court to release the juvenile pursuant to G.S. 7B-2605. If counsel gives written notice of appeal after the dispositional hearing, counsel should include a request for release under G.S. 7B-2605 in the notice of appeal or in a separate motion. A sample notice of appeal and a sample motion for release pending appeal are available on the Juvenile Defender website.

Motions and Remedies

• OBJECT, APPEAL, WRITS• Written Motion for Review• Contact the Office of the Juvenile Defender

• OTHER?