State Statutes That Govern the Transfer of Juveniles to the Adult Court System, part 3

Illinois

§ 705 ILCS 405/5–410

Non-secure custody or detention

(1) Any minor arrested or taken into custody pursuant to this Act who requires care away from his or her home but who does not require physical restriction shall be given temporary care in a foster family home or other shelter facility designated by the court.

(2) (a) Any minor 10 years of age or older arrested pursuant to this Act where there is probable cause to believe that the minor is a delinquent minor and that (i) secured custody is a matter of immediate and urgent necessity for the protection of the minor or of the person or property of another, (ii) the minor is likely to flee the jurisdiction of the court, or (iii) the minor was taken into custody under a warrant, may be kept or detained in an authorized detention facility. No minor under 12 years of age shall be detained in a county jail or a municipal lockup for more than 6 hours.

(b) The written authorization of the probation officer or detention officer (or other public officer designated by the court in a county having 3,000,000 or more inhabitants) constitutes authority for the superintendent of any juvenile detention home to detain and keep a minor for up to 40 hours, excluding Saturdays, Sundays, and court-designated holidays. These records shall be available to the same persons and pursuant to the same conditions as are law enforcement records as provided in Section 5–905 [705 ILCS 405/5–905].

(b–4) The consultation required by subsection (b–5) shall not be applicable if the probation officer or detention officer (or other public officer designated by the court in a county having 3,000,000 or more inhabitants) utilizes a scorable detention screening instrument, which has been developed with input by the State’s Attorney, to determine whether a minor should be detained, however, subsection (b–5) shall still be applicable where no such screening instrument is used or where the probation officer, detention officer (or other public officer designated by the court in a county having 3,000,000 or more inhabitants) deviates from the screening instrument.

(b–5) Subject to the provisions of subsection (b–4), if a probation officer or detention officer (or other public officer designated by the court in a county having 3,000,000 or more inhabitants) does not intend to detain a minor for an offense which constitutes one of the following offenses he or she shall consult with the State’s Attorney’s Office prior to the release of the minor: first degree murder, second degree murder, involuntary manslaughter, criminal sexual assault, aggravated criminal sexual assault, aggravated battery with a firearm, aggravated or heinous battery involving permanent disability or disfigurement or great bodily harm, robbery, aggravated robbery, armed robbery, vehicular hijacking, aggravated vehicular hijacking, vehicular invasion, arson, aggravated arson, kidnapping, aggravated kidnapping, home invasion, burglary, or residential burglary.

(c) Except as otherwise provided in paragraph (a), (d), or (e), no minor shall be detained in a county jail or municipal lockup for more than 12 hours, unless the offense is a crime of violence in which case the minor may be detained up to 24 hours. For the purpose of this paragraph, “crime of violence” has the meaning ascribed to it in Section 1–10 of the Alcoholism and Other Drug Abuse and Dependency Act [20 ILCS 301/1–10].

(i) The period of detention is deemed to have begun once the minor has been placed in a locked room or cell or handcuffed to a stationary object in a building housing a county jail or municipal lockup. Time spent transporting a minor is not considered to be time in detention

or secure custody.

(ii) Any minor so confined shall be under periodic supervision and shall not be permitted to come into or remain in contact with adults in custody in the building.

(iii) Upon placement in secure custody in a jail or lockup, the minor shall be informed of the purpose of the detention, the time it is expected to last, and the fact that it cannot exceed the time specified under this Act.



(iv) A log shall be kept which shows the offense which is the basis for the detention, the reasons and circumstances for the decision to detain, and the length of time the minor was in
detention.


(v) Violation of the time limit on detention in a county jail or municipal lockup shall not, in and of itself, render inadmissible evidence obtained as a result of the violation of this time limit. Minors under seventeen (17) years of age shall be kept separate from confined adults and may not at any time be kept in the same cell, room, or yard with adults confined pursuant to criminal law. Persons seventeen (17) years of age and older who have a petition of delinquency filed against them shall be confined in an adult detention facility.


(d) (i) If a minor twelve (12) years of age or older is confined in a county jail in a county with a population below 3,000,000 inhabitants, then the minor’s confinement shall be implemented in such a manner that there will be no contact by sight, sound, or otherwise between the minor and adult prisoners. Minors twelve (12) years of age or older must be kept separate from confined adults and may not at any time be kept in the same cell, room, or yard with confined adults. This paragraph (d)(I) shall only apply to confinement pending an adjudicatory hearing and shall not exceed 40 hours, excluding Saturdays, Sundays, and court-designated holidays. To accept or hold minors during this time period, county jails shall comply with all monitoring standards promulgated by the Department of Corrections and training standards approved by the Illinois Law Enforcement Training Standards Board.


(ii) To accept or hold minors, twelve (12) years of age or older, after the time period prescribed in paragraph (d)(i) of this subsection (2) of this Section but not exceeding seven (7) days including Saturdays, Sundays, and holidays pending an adjudicatory hearing, county jails shall comply with all temporary detention standards promulgated by the Department of Corrections and training standards approved by the Illinois Law Enforcement Training Standards Board.


(iii) To accept or hold minors twelve (12) years of age or older, after the time period prescribed in paragraphs (d)(i) and (d)(ii) of this subsection (2) of this Section, county jails shall comply with all programmatic and training standards for juvenile detention homes promulgated by the Department of Corrections.


(e) When a minor who is at least fifteen (15) years of age is prosecuted under the criminal laws of this State, the court may enter an order directing that the juvenile be confined in the county jail.



However, any juvenile confined in the county jail under this provision shall be separated from adults who are confined in the county jail in such a manner that there will be no contact by sight, sound, or otherwise between the juvenile and adult prisoners.


(f) For purposes of appearing in a physical lineup, the minor may be taken to a county jail or municipal lockup under the direct and constant supervision of a juvenile police officer. During such time as is necessary to conduct a lineup, and while supervised by a juvenile police officer, the sight and sound separation provisions shall not apply.


(g) For purposes of processing a minor, the minor may be taken to a county jail or municipal lockup under the direct and constant supervision of a law enforcement officer or correctional officer. During such time as is necessary to process the minor, and while supervised by a law enforcement officer or correctional officer, the sight and sound separation provisions shall not apply.


(3) If the probation officer or State’s Attorney (or such other public officer designated by the court in a county having 3,000,000 or more inhabitants) determines that the minor may be a delinquent minor as described in subsection (3) of Section 5–105 [705 ILCS 405/5–105], and should be retained in custody but does not require physical restriction, the minor may be placed in non-secure custody for up to 40 hours pending a detention hearing.


(4) Any minor taken into temporary custody, not requiring secure detention, may, however, be detained in the home of his or her parent or guardian subject to such conditions as the court may impose. 
                                                                                                                                                                   
Indiana


Burns Ind. Code Ann. § 31–37–19–7 (1998)
Wardship awarded to department of correction, place of confinement


(c) The department of correction may not confine a delinquent child, except as provided in IC 11–10–2–10, at:


(1) an adult correctional facility; or


(2) a shelter care facility; that houses persons charged with, imprisoned for, or incarcerated for crimes unless the child is restricted to an area of the facility where the child may have not more than haphazard or incidental sight or sound contact with persons charged with, imprisoned for, or incarcerated for crimes.

Burns Ind. Code Ann. § 11–10–2–10 (1998)

Transfer to adult facility or program

(a) The commissioner may transfer a committed delinquent offender to an adult facility or program according to the following requirements: 

(1) The offender must be seventeen (17) years of age or older at the time of transfer.

(2) The department must determine that:

(A) either the offender is incorrigible to the degree that his presence at a facility or program for delinquent offenders is seriously detrimental to the welfare of other offenders, or the transfer is necessary for the offender’s own physical safety or the physical safety of others;

and

(B) there is no other action reasonably available to alleviate the problem.

(3) No offender may be transferred to the Indiana state prison or the Pendleton Correctional Facility.

(b) The offender is under the full custody of the adult facility or program to which he is transferred until he is returned to a facility or program for delinquent offenders, except that his parole or discharge from the department shall be determined under IC 11–13–6.

                                                                                                                                                                   

Iowa

Code § 232.22 (1997)

Placement in detention

2. Except as provided in subsection 6, a child may be placed in detention as provided in this section in one of the following facilities only:

a. A juvenile detention home.

b. Any other suitable place designated by the court other than a facility under paragraph “c.”

c. A room in a facility intended or used for the detention of adults if there is probable cause to believe that the child has committed a delinquent act which if committed by an adult would be a felony, or aggravated misdemeanor under section 708.2 or 709.11, a serious or aggravated misdemeanor under section 321J.2, or a violation of section 123.46, and if all of the following apply:

(1) The child is at least fourteen (14) years of age.

(2) The child has shown by the child’s conduct, habits, or condition that the child constitutes an immediate and serious danger toanother or to the property of another, and a facility or place enumerated in paragraph “a” or “b” is unavailable, or the court determines that the child’s conduct or condition endangers the safety of others in the facility.

(3) The facility has an adequate staff to supervise and monitor the child’s activities at all times.

(4) The child is confined in a room entirely separated from detained adults, is confined in a manner which prohibits communication with detained adults, and is permitted to use common areas of the facility only when no contact with detained adults is possible.

4. A child shall not be detained in a facility under subsection 2, paragraph “c” for a period of time in excess of six (6) hours without the oral or written order of a judge or a magistrate authorizing the detention. A judge or magistrate may authorize detention in a facility under subsection 2, paragraph “c” for a period of time in excess of six (6) hours but less than twenty-four (24) hours, excluding weekends and legal holidays, but only if all of the following occur or exist:

a. The facility serves a geographic area outside a standard metropolitan statistical area as determined by the United States Census Bureau.

b. The court determines that an acceptable alternative placement does not exist pursuant to criteria developed by the department of human services.

c. The facility has been certified by the department of corrections as being capable of sight and sound separation.

d. The child is awaiting an initial hearing before the court.

6. If the court has waived its jurisdiction over the child for the alleged commission of a forcible felony offense pursuant to section 232.45 or 232.45A, and there is a serious risk that the child may commit an act which would inflict serious bodily harm on another person, the child may be held in the county jail. However, wherever possible the child shall be held in sight and sound separation from adult offenders. A child held in the county jail under this subsection shall have all the rights of adult post-arrest or pretrial detainees.

                                                                                                                                                                   

Kansas

§ 11. K.S.A. 1997 Supp. 38–16,111 is hereby amended to read as follows:

(A) When a juvenile who is under sixteen (16) years of age at the time of the sentencing, has been prosecuted and convicted as an adult or under the extended jurisdiction juvenile prosecution, and has been placed in the custody of the secretary of the department of corrections, the secretary shall notify the sheriff having such juvenile in custody to convey such offender at a time designated by the juvenile justice authority to a juvenile correctional facility. The commissioner shall notify the court in writing of the initial placement of the juvenile in the specific juvenile correctional facility as soon as the placement has been accomplished. The commissioner shall not permit the juvenile to remain detained in any jail for more than 72 hours, excluding Saturdays, Sundays, and legal holidays, after the commissioner has received the written order of the court placing the juvenile in the custody of the commissioner, except that, if that placement cannot be accomplished, the juvenile may remain in jail for an additional period of time, not exceeding 10 days, which is specified by the commissioner and approved by the court.

(B) A juvenile who has been prosecuted and convicted as an adult, shall not be eligible for admission to a juvenile correctional facility. All other conditions of such juvenile offender’s sentence imposed under this code, including restitution orders, may remain intact. The provisions of this subsection shall not apply to a juvenile who:

(1) is under sixteen (16) years of age at the time of the sentencing;

(2) has been prosecuted as an adult or under extended juvenile jurisdiction;

and

(3) has been placed in the custody of the secretary of corrections, requiring admission to a juvenile correctional facility pursuant to subsection (A).

                                                                                                                                                                   

Kentucky

KRS § 610.220 (1998)

Permitted purposes for holding child in custody, time limitation, extension

(1) If an officer takes or receives a child into custody, the child may be held at a police station, secure juvenile detention facility, juvenile holding facility, intermittent holding facility, the offices of the court-designated worker, or, as necessary, in a hospital or clinic for the following purposes:

(a) Identification and booking;

(b) Attempting to notify the parents or person exercising custodial control or supervision of the child, a relative, guardian, or other responsible person;

(c) Photographing;

(d) Fingerprinting;

(e) Physical examinations, including examinations for evidence;

(f) Evidence collection, including scientific tests;

(g) Records checks;

(h) Determining whether the child is subject to trial as an adult; and

(i) Other inquiries of a preliminary nature.

(2) A child may be held in custody pursuant to this section for a period of time not to exceed two (2) hours, unless an extension of time is granted. Permission for an extension of time may be granted by the court, trial commissioner, or court-designated worker pursuant to KRS 610.200(5) (d) and the child may be retained in custody in facilities listed in subsection

(1) of this section for the period of retention.

2. Separation From Adults

There was no legal authority for the detention of a 13-year-old child in any portion of a county jail that is not physically separated from sight and sound of all other portions of the jail. Skeans v. Vanhoose, 512 S.W.2d 520 (Ky. 1974).

                                                                                                                                                                   

Louisiana

Art. 306. Places of detention; juveniles subject to criminal court jurisdiction A. Prior to the divesting events specified in Paragraphs A through D of Article 305, the child shall be held in custody in a juvenile detention center, except as hereinafter provided.

B. If a detention facility for juveniles is not available, he may be held in an adult jail or lockup for identification or processing procedures or while awaiting transportation only as long as necessary to complete these activities for up to six (6) hours, except that in non-metropolitan areas, he may be held for up to twenty-four (24) hours if all of the following occur:

(1) The child meets the age and offense criteria set out in Article 305.

(2) A continued custody hearing in accordance with Articles 820 and 821 is held within twenty-four (24) hours after his arrest.

(3) There is no acceptable alternative placement to the jail or lockup in which he is being held.

(4) The sheriff or the administrator of the adult jail or lockup has certified to the court that facilities exist providing for sight and sound separation of the juvenile from adult offenders and that he can be given continuous visual supervision while placed in the jail or lockup.

C. If an indictment has not been returned, a bill of information filed, or a continued custody hearing not held within twenty-four (24) hours, the child held in an adult jail or lockup in a non-metropolitan area shall be released or removed to a juvenile detention facility.

D. If at the conclusion of the continued custody hearing, the court determines that the child meets the age requirements and that there is probable cause that the child has committed one of the offenses enumerated in Article 305, the court shall order him held for trial as an adult for the appropriate court of criminal jurisdiction. The child shall thereafter be held in any facility used for the pretrial detention of accused adults and shall apply to the appropriate court of criminal jurisdiction for a preliminary hearing, bail, and for any other rights to which he may be entitled under the Code of Criminal Procedure.

E. If for any reason the court determines that the child is not subject to the jurisdiction of the criminal courts, it may continue him in custody only in those places authorized by Article 822.

F. The court authorizing the detention of the child in an adult jail or lockup pursuant to Paragraph B or D of this Article shall submit a written report delineating appropriate reasons for the continued custody to the judicial administrator of the supreme court for review and shall submit copies to the Louisiana Commission on Law Enforcement and Administration of Criminal Justice and to the sheriff or chief of police of the facility in which the child is being detained within seven (7) working days of the court’s decision.

La. Ch.C. Art. 305 (1998)

Divestiture of juvenile court jurisdiction, original criminal court jurisdiction over children, when acquired

A. (1) When a child is fifteen (15) years of age or older at the time of the commission of first degree murder, second degree murder, aggravated rape, or aggravated kidnapping, he is subject to the exclusive jurisdiction of the juvenile court until either:

(a) An indictment charging one of these offenses is returned.

(b) The juvenile court holds a continued custody hearing pursuant to Articles 819 and 820 and finds probable cause that he committed one of these offenses, whichever occurs first.

(2) Thereafter, the child is subject to the exclusive jurisdiction of the appropriate court exercising criminal jurisdiction for all subsequent procedures, including the review of bail applications, and the child shall be transferred forthwith to the appropriate adult facility for detention prior to his trial as an adult.

B. (1) When a child is fifteen (15) years of age or older at the time of the commission of any of the offenses listed in Sub-paragraph (2) of this Paragraph, he is subject to the exclusive jurisdiction of the juvenile court until whichever of the following occurs first:

(a) An indictment charging one of the offenses listed in Subparagraph

(2) of this Paragraph is returned.

(b) The juvenile court holds a continued custody hearing and finds probable cause that the child has committed any of the offenses listed in Sub-paragraph (2) of this Paragraph and a bill of information charging any of the offenses listed in Sub-paragraph (2) of this Paragraph is filed.

(2) (a) Attempted first degree murder.

(b) Attempted second degree murder.

(c) Manslaughter.

(d) Armed robbery.

(e) Aggravated burglary.

(f) Forcible rape.

(g) Simple rape.

(h) Second degree kidnaping.

(i) Aggravated oral sexual battery.

(j) Aggravated battery committed with a firearm.

(k) A second or subsequent aggravated battery.

(l) A second or subsequent aggravated burglary.

(m) A second or subsequent offense of burglary of an inhabited dwelling.

(n) A second or subsequent felony-grade violation of Part X or X–B of Chapter 4 of Title 40 of the Louisiana Revised Statutes of 1950 involving the manufacture, distribution, or possession with intent to distribute controlled dangerous substances.

(3) The district attorney shall have the discretion to file a petition alleging any of the offenses listed in Sub-paragraph (2) of this Paragraph in the juvenile court or, alternatively, to obtain an indictment or file a bill of information. If the child is being held in detention, the district attorney shall make his election and file the indictment, bill of information,or petition in the appropriate court within thirty (30) calendar days after the child’s arrest, unless the child waives this right.

(4) If an indictment is returned or a bill of information is filed, the child is subject to the exclusive jurisdiction of the appropriate court exercising criminal jurisdiction for all subsequent procedures, including the review of bail applications, and the child shall be transferred forthwith to the appropriate adult facility for detention prior to his trial as an adult.

C. Except when a juvenile is held in an adult jail or lockup, the time limitations for the conduct of a continued custody hearing are those provided by Article 819.

D. The court exercising criminal jurisdiction shall retain jurisdiction over the child’s case, even though he pleads guilty to or is convicted of a lesser included offense. A plea to or conviction of a lesser included offense shall not revest jurisdiction in the court exercising juvenile jurisdiction over such a child.

                                                                                                                                                                   

Maine

§ 3101 (1998)

E–1. If the Juvenile Court binds the juvenile over to Superior Court, the court may direct detention of any such juvenile who is to be detained in a section of a jail that is used primarily for the detention of adults when it finds by clear and convincing evidence that:

(1) The juvenile’s behavior presents an imminent danger of harm to that juvenile or to others; and

(2) There is not a less restrictive alternative to detention in an adult section that serves the purposes of detention. In determining whether the juvenile’s behavior presents a danger to that juvenile or others, the Juvenile Court shall consider, among other factors:

(a) The nature of and the circumstances surrounding the offense with which the juvenile is charged, including whether the offense was committed in an aggressive, violent, premeditated, or intentional manner;

(b) The record and previous history of the juvenile, including the juvenile’s emotional attitude and pattern of living; and

(c) If applicable, the juvenile’s behavior and mental condition during any previous and current period of detention or commitment.