Full text of DOI:10.1111/j.1755-6988.2001.tb00036.x

Ten Ways to Reduce
Detention Population
BY JUDGE LINDSAY G. ARTHUR
A B S T R A C T
“Juvenile detention is regularly overlooked, maligned, and misunderstood.
detain but it may chew you
out if you release. So deten-
tion fills up.
The Temptation
“When in doubt, hold.”
Its embattled condition is best described as severely abused and neglected.
1
It is underfunded, understaffed, crowded and largely ignored.”
T
It’s easy. Somebody, a police
“Detention caseloads increased 38 percent between 1987 and 1996.
The increase in the number of delinquency cases handled by the courts has
driven the growth in the number of juveniles in the detention system. In
1987, 1.2 million delinquency cases were disposed of in juvenile courts. By
1996, this number had risen 49 percent, to almost 1.8 million. This increase
in the volume of juveniles in the justice system resulted in a 38 percent
increase in the number of delinquency cases that involved the use of
detention. The number of juvenile delinquency cases detained in 1996 was
89,000 more than in 1987. This has resulted in increased demand for
officer,a probation officer,an
There are options
intake worker, all profession-
The law may provide
als, has already made the
options. It may even require
options. One option is sim-
ply to read the statutes
closely. Or the Constitution
itself may require release.
Or maybe others can be
persuaded or required to
find a place, especially if
they have to pay for deten-
tion.There are many in the
community operating facili-
ties that can be used as
alternatives, and they are
often anxious for the place-
decision to detain. Whoever
it was thought it was right.
It’s easy for the court to
agree. A detained child will
not hurt anyone, he won’t
run away. And he won’t get
2
juvenile detention bed space across the country.”
hurt himself—physically. Of
“Changes in statutes allowing more detainable offenses have
course, he will be cut off
from his own bed and his
significantly increased the number of youths admitted to regional detention
3
mother and his friends and
centers.“
his school, and he’ll never
“Although minority youth constituted about 32 percent of the youth
quite recover his reputation.
population in the country in 1995, they represented 68 percent of the
He’ll lose some potential
4
juvenile population in secure detention…
friends whose parents don’t
ments. Detention should be a last resort, not a first
resort as it too often is.
want them associating with a delinquent. Of course,
he’ll make new friends in detention, though they’ll
mostly be juvenile delinquents. If he’s detained, he’ll be
safe. If he’s released, it’s easy to imagine all manner of
bad things that may happen to others and to him. So,
unless he can prove it’s safe to release him, detain him.
It won’t be appealed since appeals cost so much and
take much longer than the probable time in detention.
It’s easy to hold. The media doesn’t complain if you
1. Don’t Hold Technical Violators
“Thirty-four percent of youth are detained for status
offenses and technical violations.This category includes
kids who have violated court orders or the rules of pro-
bation.While they may have angered an adult or broken
a rule, they have not committed new offenses. Adults
Judge Lindsay G. Arthur has been a judge for 47 years, 18 of them as Chief Judge of the state juvenile court sitting in Minneapolis. He has been
widely published and has been active with the National Council of Juvenile and Family Court Judges, serving as its president and the editor of its Juvenile and
Family Law Digest. Judge Arthur currently serves as the Council’s Senior Judicial Scholar. He has also served on juvenile and family related committees of the
American Bar Association, the National Center for State Courts, the American Law Institute, and various local organizations. He has long been an advocate of
individualized justice and of rehabilitation.
Winter 2001 • Juvenile and Family Court Journal
29

Ten Ways to Reduce Detention Population
would rarely if ever face detention as a consequence for
placing the child in a home or training school,
he receives the care and training he would not
5
these behaviors.” Many of these probation violators can
8
be punished by community service, electronic
bracelets, weekend or daytime detention, etc. On the
other hand, there are some few who must be detained
because other options for controlling them have failed.
There are those status offenders who persistently defy a
“valid court order,” but if the court is actually ordering
the detention of a status offender or misdemeanant, it
should clearly state the reason that justifies the loss of
liberty with all that that entails.
otherwise receive…
The refusal to use bail was further explained by the
theory that Juvenile Courts are concerned with rehabil-
itation which requires treating the causes of the child’s
delinquency, and since detention is part of the treat-
9
ment, to allow a child to be bailed out of detention
would be to interrupt the treatment. Of late, however,
Juvenile Courts have become more and more formalized
10
under due process requirements. They have been less
2. Use Bail
concerned with rehabilitation and treatment and more
concerned with just punishing juveniles on the same
It was the original wisdom of the Juvenile Court
that children should not be admitted to bail because
they would not deterred by the forfeiture of money that
was usually not their own, or because they would value
their liberty more than someone else’s money. The
wisdom has never been adequately investigated.
Additionally, juvenile proceedings were deemed to be
civil rather than criminal, and therefore the constitu-
11
basis as adults. The proceedings are becoming more
and more criminal, so logically juveniles should be
12
admitted to bail on the same basis as adults. This could
substantially reduce the number of juveniles in deten-
tion, particularly if the bail amount were geared to the
child’s level of values,such as by requiring his boom box
to be deposited, or his CD collection, or the license
plates to his car, or a favorite dress, doll, or bracelet.
6
tional provision requiring bail would not apply, though
an early opposing opinion stated,
3. Disallow Warrantless Arrests
On the ground that juvenile proceedings are
not criminal and that their purpose is not puni-
tive, (a statute may authorize a warrantless
arrest as) a form of protective custody to which
the general law of arrest does not apply and it is
therefore unnecessary that the child be com-
mitting a misdemeanor in the officer’s pres-
ence, or that the officer have probable cause to
believe that the child has been involved in the
The fact that [juvenile] proceedings are to be
classified as civil instead of criminal,does not…
necessarily lead to the conclusion that constitu-
tional safeguards do not apply. It is often dan-
gerous to carry any proposition to its logical
extreme.These proceedings have many ramifi-
cations which cannot be disposed of by denom-
inating the proceedings as civil. Basic human
7
rights do not depend on nomenclature.
13
commission of a felony.
Some courts have simply fallen back on the parens
patriae concept, that the court is better able than
parents to take care of some delinquent children.
The statutes have allowed detention for completely
subjective reasons. But in the new approach—that juve-
niles should be punished like adults, not rehabilitated—
the rationale for deviating from the adult law of arrest
no longer applies.Therefore,arrest and detention should
be limited by the same rules as for adults. Juveniles are
either children or adults; they cannot have the worst of
both worlds.
To allow a child judged delinquent or depend-
ent to go free on bail,pending appeal,would be
merely returning him to the environment
which was the cause of his problems initially!
Many times, in fact, the delinquents really have
nowhere to go. Most have come from environ-
ments totally adverse to their best interests.
There is no guidance and nothing to do but
return to their previous delinquent behavior.By
4. Don’t Hold Runaways Who Won’t Run
Though there is a strong administrative policy
against it, status offenders are in fact being detained.
30 Juvenile and Family Court Journal • Winter 2001

Judge Lindsay G. Arthur
Status offense cases were much less likely to
involve detention than were delinquency cases.
In 6 percent of the formally processed status
offense cases disposed by juvenile courts in
1997, the juvenile was held in a detention facil-
ity at some point between referral to court and
case disposition. Juveniles were detained in 11
percent of runaway cases, 7 percent of
ungovernability cases and status liquor law vio-
lations, and 2 percent of cases involving truan-
cy charges. Of the estimated 9,400 petitioned
status offense cases involving detention in
1997, liquor law violation cases and runaway
cases made up the greatest proportions.14
early in the case, within a day or two after the person
has been detained at the direction of the police or
detention staff, before there is time to accumulate the
detail of a full investigation. Because a mistake may
deprive an American of his liberty, due process requires
a defined set of standards,prescribed in advance to limit
any arbitrariness or bias of the judge.
The usual standards for preventive detention
prescribed by various state statutes are the violent
nature of the offense, the prior record, probation or
parole status, recent threats to witnesses, and any “risk
assessment” prepared by staff. But such criteria speak
mainly to the defendant’s past rather than to future
19
probabilities. Other elements that are sometimes used
are the defendant’s demeanor,dress,and grooming as he
appears in court and, from the evidence and their
appearances in court,the judge’s perception of the qual-
ity of parental supervision.Definitive psychological eval-
uations are seldom available so early in the proceedings.
Sometimes the court subconsciously bases the deten-
tion decision on the defendant’s membership in a
group, such as his race, his neighborhood, his economic
status, or his school record. Because the judge perceives
that these are the groups to which most criminals
belong, there is the syllogism that those who belong to
such groups are criminals.
Under most statutes, even status offenders can be
detained if there is a violation of a“valid court order”or
good probable cause to believe that they will not return
15
for their next hearing. Mere failure to appear in court
to answer a misdemeanor petition is not grounds for
16
pre-trial detention. But it’s too easy to say that a child
will not return for his next hearing;it’s too easy to opine
that a stay in custody pending his trial or disposition
hearing might have a salutary effect.Evidence should be
required to prove probable cause, with opportunity for
rebuttal.
There is too often little concern with detention’s
impact on the defendant and his family by the loss of a
job and employability, by the loss of schooling, or by
denigration of community reputation. Of great impor-
tance, detention may be a determinant in the subse-
5. The Threat of Danger to Others
is Seldom Valid
Juveniles may be detained if they pose a threat to
others. “Preventive detention involves a short-term
prediction of dangerousness or the prediction of some
future harm. — The development of definitions of
danger has focused on two concerns: danger to the
public generally posed by the defendant, and danger
20
quent trial and disposition. A detained child is more
likely to be committed to an institution, understandable
in most cases, but because a majority of detainees may
be committable does not justify the easy assumption
that all of them are.
17
posed to potential victims or witnesses.” The court
must make a prediction of future danger, and the pre-
diction must be based on evidence presented at a due
process hearing.The court should also realize that when
the child knows that the disposition is pending, he may
be on his good behavior so as not to aggravate the
disposition or to prove he can live in the community.
The Supreme Court has said, “There is nothing
inherently unattainable about prediction of future crim-
A possibly definitive study was made of a uniquely
appropriate situation.A federal court in New York ruled
that the state statute allowing preventive detention was
unconstitutional and enjoined the State Commissioner
of Juvenile Justice from detaining defendants who were
detained only preventatively. However, the New York
Court of Appeals had held the same statute constitu-
tional.As state courts ordered juveniles detained, those
committed to the State Commissioner were released
under the federal ruling, and those put in placements
18
inal conduct.” The problem comes in the criteria to be
used to determine danger. The decision has to come
Winter 2001 • Juvenile and Family Court Journal
31

Ten Ways to Reduce Detention Population
without the State Commissioner were held under the
state ruling.Two groups were thus created: both groups
had been found by a court to require detention because
of danger, but one group was released and the other
detained. The study made an extensive comparison of
the behavior of both groups during the pretrial period.
It recommended against preventive detention.
offender, family, community, and to prevent re-
offending.
While the ultimate goal of therapeutic deten-
tion is not the complete rehabilitation of the
juvenile offender, detention should be seen as
the place where the process begins…
The basis for the therapeutic detention
rationale is the emphasis on diagnosis and
observation. The court needs information
regarding the juvenile, the home environment,
and peers in order to make an informed deci-
sion about the future of the juvenile. Short-term
detention has been used as an opportunity to
accomplish this task.The diagnosis and observa-
tion themes are so common that most juvenile
codes include them as a rationale for detention.
It is this concept that has created much of the
There are reasonable and constitutional argu-
ments to incapacitate a presumptively innocent
individual when we are certain he or she is dan-
gerous. But whenever a significant number of
persons are presumptively detained, many indi-
viduals will be deprived of their liberty even
though they would not have endangered the
community. In light of the great cost to defen-
dants in terms of case outcomes and sanctions,
and the marginal gains to society in crimes
averted, preventive detention appears to be
22
conflict in the definition of detention goals.
21
unjustified.
If therapy is to be the basis for detention, it should
be acknowledged, with actual therapy being provided
at the detention center, therapy that addresses the
child’s individual needs, not just saying that a dose of
detention will be good for him.And if the child is held
for observation, there must be observation by profes-
sionals, not merely the staff shift notes.The concept of
therapy is that the child can be rehabilitated.Nowadays,
however,under the“new”approach,rehabilitation is dis-
carded to protect the juveniles from judicial bias and to
ensure equality. All similar offenses are to have similar
punishments regardless of the juvenile or his home envi-
ronment or his peers.There’s no need for observation or
diagnosis. Therapeutic detention is obsolete because
punishment, not therapy, is the order of the day.
6. Few Juveniles are
Themselves in Danger
If released,a very few juveniles may commit suicide
or maim themselves in the attempt because they
consider themselves to be losers, think the future is
hopeless, or are convinced that they have disgraced
their families. Juveniles may be at risk of injury from
victims or victims’ friends, or from the juvenile’s gang if
it believes that the juvenile has betrayed them or
“dissed” them, disgracing or disrespecting them. But
deeming or assuming that such a danger exists is too
easy.The court should insist upon admissible evidence
of actual danger to or by this child.
7. Therapeutic Detention May
Be Obsolete
8. Courtesy Holds are Improper
While preventive detention may stop or disrupt
certain behaviors or actions, the nature of ther-
apeutic detention is to start or cause certain
events to take place. Therefore, therapeutic
detention could also be called“educative deten-
tion,” “helpful detention,” or “proactive deten-
tion.”This function examines those things that
detention can do to help the juvenile achieve
the preventive detention goals of protecting the
A courtesy hold occurs when the detention facility
holds a child who is dependent but not delinquent or
incorrigible simply because the Child Protective
Services, the parents, or relatives all refuse to take her.
The practice is improper. Such children cannot be
23
held. With findings explaining the need for placement,
a trial court may order the state to accept a juvenile
even though the quota for the state facility is full, it
being the state’s obligation to either raise its quota or
32 Juvenile and Family Court Journal • Winter 2001

Judge Lindsay G. Arthur
24
tuted treatment of the juvenile.Therefore the state was
financially responsible for the costs of court-ordered
find alternative placements for residents. In the ulti-
mate case, this may require the court either to hold the
commissioner in contempt if he does not find room for
the child or to order the sheriff to deliver the child to
the commissioner personally or to an appropriate insti-
tution. Judge Lincoln of Detroit once accompanied the
sheriff on such a delivery.The children were accepted.
29
detention not paid by the juvenile’s mother.”
“Temporary detention is treatment for which the state
30
Department of Social Services must pay.” But the state
is not required to pay detention costs incurred prior to
31
adjudication, presumably because treatment doesn’t
start until after adjudication, though see Therapeutic
Detention, supra. A contra opinion is that temporary
detention is treatment for which the state Department
9. Use Home Detention
Even where the Court lacks authority to order
detention in a secure facility because the statutory
criteria are not met, it still may order home detention if
32
of Social Services must pay.
25
A Hearing is Always Necessary
it provides a hearing within 20 days. Home detention
A child is entitled to a hearing, constitutionally, and
more specifically,by statute.The hearing must usually be
within 72 hours of the beginning of detention, though
some statutes provide for a shorter period. Saturdays,
Sundays, and holidays are usually, but not always,
exempted. A hearing is not required, however, when a
can be supported by random phone calls or electronic
bracelets, or possibly holding the parent in contempt if
the child leaves home.
10. Use Options
Instead of considering detention to be only in a
maximum security building, a Juvenile Court may devel-
op resources involving lesser and cheaper degrees of
security as the needs of the juvenile may allow. These
may range from simple mentoring or informal probation
programs to community programs such as drug rehabil-
itation, day treatment, intensive probation, and electron-
ic monitoring, to various levels of group homes, such as
foster parent homes, staff monitored homes, and staff-
secure homes, to periodic detention, such as weekend
or daytime detention. A more complete and definitive
description of continuum of care programs is set forth
33
child is returned from an escape. If the hearing is not
held within the required time, the child must be
released regardless of his condition or danger.Detention
could not be extended for five days to permit the state
to locate a witness without proof of probable cause to
34
believe that the allegations in the petition were true.
High-risk juveniles may be detained longer than the
15-day statutory limitation if necessary for finding a
35
placement. The United States Supreme Court has held
that an Immigration and Naturalization Service regula-
tion that required that detained juvenile aliens could be
released only to parents, close relatives, or guardians
except in unusual circumstances does not violate due
26
by Dunlap and Roush.
Consider also that if parents or the state must pay
for detention, they may find options. Both will strongly
resist paying, pleading lack of authority, poverty, illogic.
36
process.
The hearing must meet the requirements of due
37
27
process such as:
But there is authority for requiring such payment and
when payment is required, those ordered to pay often
do a vigorous search for some other place or means of
detention.
Notice to the Child — Timely notice must be
given to the child of the purpose of the hearing;
The Child has a right to appear — The child
must be permitted to attend the hearing;
Require Parents to Pay — court may order the par-
ents to pay the costs of detention without inquiring as
to their ability to pay.The court is not required to detain
the child in a facility covered by the parents’ insur-
Provide the Child with Attorney — The child
must be advised of his right to an attorney, at
public expense if necessary. There is a differ-
ence of opinion among the states as to whether
the child’s attorney must [a] advocate the wish-
es of the child or [b] advocate the attorney’s
28
ance.
Require the State to Pay — “Because at least one
purpose of the detention was to facilitate juvenile’s
placement in a treatment facility, the detention consti-
Winter 2001 • Juvenile and Family Court Journal
33

Ten Ways to Reduce Detention Population
38
own concept of the child’s best interests.
Conclusion
The number of detained children is increasing too
Notify Parent — At least one custodial parent
or guardian must be notified of the hearing and
its purpose. Most statutes require that a parent
or guardian be present and there is some opin-
ion that the right to appear belongs to the par-
ent so that the child cannot waive his parent’s
rapidly. It is straining facilities and the staff that is trying
to help and manage the inmates. Instead of building
more and more cells for juveniles, courts should exam-
ine the standards they use to determine detention. It’s
easy to detain, too easy. Law enforcement prefers it.The
media prefers it. Probation officers may even like to
keep the kids where they can find them.To release may
be to swim against the stream. But that’s often part of
being a Juvenile Court Judge. The standard tests for
detention: danger to self or others or proclivity to run,
are often interpreted much too loosely, without valid
evidence.And there are options available. Some of them
are actually required by statute or by the Constitution.
Community facilities are often ready, willing, and able to
provide options. Others become apparent if real
evidence is required to prove the need for detention.
Detention should be a last resort.
39
presence. Certainly the chances of prevent-
ing further delinquency are greatly improved if
a parent is present.
Require Admissible Evidence —The petitioner
must prove its case by evidence admissible
under the Rules of Evidence. Since human lib-
erty is at stake in a criminal-type matter,proof is
probably necessary beyond a reasonable doubt.
Court must make Findings — The court must
make at least oral findings on the record of its
reasons for ordering or not ordering detention.
A U T H O R ’ S
A D D R E S S :
Judge Lindsay G. Arthur
1201 Yale Place, #205
Minneapolis, MN 55403
34 Juvenile and Family Court Journal • Winter 2001

Judge Lindsay G. Arthur
END NOTES
1
16
David M. Roush,“Public-Private Venture to HELP Youth in
J.L. v. McCormick, 671 So. 2d 202 (Fla., 1996).
Juvenile Detention,” Juvenile and Family Court Journal,
Vol. 50, No. 2, Summer 1999, pp 57.The author describes a
successful program conducted by a detention center to
reduce delinquency among violent juveniles.
17
Jeffrey Fagan and Martin Guggenheim, “Preventive
Detention and the Judicial Prediction of Dangerousness for
Juveniles:A Natural Experiment,”86 [Part 1] The Journal of
Criminal Law & Criminology, 415, 419 (1986).
2
3
Lynn Ryan MacKenzie, Detention in Delinquency Cases,
1987-1996, August 1999. Office of Juvenile Justice and
Delinquency Prevention“Court Summaries, 11/16/00.”
18
19
20
Schall v. Martin, 467 U.S. 253, 278 (1984).
Fagan and Guggenheim, op. cit. 420.
Juvenile Justice Detention Programs, Ten Year
Longitudinal Analysis, Bureau of data and Research,
“Research Digent Issue #26, 9/98, pp.1.
“A first offender detainee is more likely to be convicted and
severely sentenced than a recidivist with more than ten
prior arrests who was released before trial.” The
Presumption of Innocence: the Need for Due Process and
the Presumption of Innocence Prior to Trial, 1978 Jeff
Thaler,Wis. L.R. 441, 446.
4
5
Disproportionate Minority Confinement: 1997 Update,
Juvenile Justice Bulletin, OJJDP, September 1998.
Juvenile Detention Alternatives Initiative, The Annie E.
21
22
Casey Foundation,April 2000.
Fagan and Guggenheim, op. cit. 448.
6
7
47 Am. Jur.2d Sec. 62, pp. 1105 Juvenile Courts, etc.
Earl L. Dunlap and David W. Roush,“Juvenile Detention as
Process and Place,” Juvenile and Family Court Journal,
Vol. 46, No. 2, Spring 1995, pp. 6.
Trimble v. Stone, 187 F. Supp.483, 486 [D.D.C. 1960], as
quoted in“The Denial of a State Constitutional Right to Bail
in Juvenile Proceedings: The Need for Reassessment in
Washington State.” Kathleen A. Baldi, 19 Seattle University
Law Review 573, 582.
23
JV-502820 v. Superior Court of Maricopa Count, 889 P.2d
36 (Ariz. 1995).
24
25
State v. Stephens, S.E.2d (W.Va., 1996).
8
Estes v.Hopp, 438 P.2d 205 [Wash. 1968] as quoted in“The
Denial of a State Constitutional Right to Bail in Juvenile
Proceedings: The Need for Reassessment in Washington
State.”Kathleen A. Baldi, 19 Seattle University Law Review
573, 580.
State v.Marion County Superior Court, Juvenile Division,
704 N.E.2d 477 (Ind. 1998).
26
27
Dunlap and Roush, op. cit., pp. 11.
9
Baker v. Smith, 477 S.W. 2d 149 [Ky. 1971].
In re Gault, 387 U.S. 1 (1967).
In the Interest of N.D.S., a child, and concerning L.S. and
E.S., 5 P.3rd 382 (Colo. 2000).
10
11
28
29
30
J.W. v. Hendricks County Office of Family and Children,
N.E.2d (Ind. 1998).
Lindsay G.Arthur,“Punishment Doesn’tWork,”Juvenile and
Family Court Journal, Vol. 51, No. 3, (2000) pp. 37.
Scotts Bluff County v. Department of Social Services,
N.W.2d (Neb. 1996).
12
“The Denial of a State Constitutional Right to Bail in
Juvenile Proceedings: The Need for Reassessment in
Washington State.” Kathleen A. Baldi, 19 Seattle University
Law Review, 573.
Keith County v. Department of Social Services,
540 N.W.2d 109 (Neb. 1995).
13
14
31
32
47 Am. Jur.2d Sec. 62, pg 1103 Juvenile Courts, etc.
State in Interest of J.B., 708 So. 2d 1300 (La. 1998).
Puzzanchera, C., et al., Juvenile Court Statistics 1997
(Report) Department of Justice, OJJDP, June 2000, per
Internet 11/16/00.
Keith County v. Department of Social Services,
540 N.W.2d 109 (Neb. 1995).
33
34
In the Interest of J.L.P., S.E.2d (Ga 1997).
In re S.J., 686 A.2d 1024 (D.C., 1996).
15
See, for example, Minn. Stats., 260B.178 .
Winter 2001 • Juvenile and Family Court Journal
35

Ten Ways to Reduce Detention Population
END NOTES
35
38
Red v. Gnat, 681 So.2d 847 (Fla., 1996).
Lindsay G. Arthur, “Participant’s Rights and Duties in
Juvenile Court Hearings,” Juvenile & Family Court
Journal, Vol. 50, No. 3, Summer 1999, pp. 41, 43.
36
Reno v. Flores et al., 113 S. Ct. 1439 (Cal., 193).
37
39
For a full description of a juvenile’s rights at a due process
hearing, see Lindsay G. Arthur, “Participant’s Rights and
Duties in Juvenile Court Hearings,” Juvenile & Family
Court Journal, Vol. 50, No. 3, Summer 1999, pp. 41.
Re Roman, 527 N.Y.S.2d 488, N.Y.App. Div. [1988]
36 Juvenile and Family Court Journal • Winter 2001