LEGAL MEMORANDUM 10 – 269

TO: ALL JUSTICES OF THE PEACE

ALL JUSTICE OF THE PEACE COURTS

FROM: HONORABLE ALAN G. DAVIS

CHIEF MAGISTRATE

RE: PRE-HEARING DETENTION OF JUVENILES

DATE: OCTOBER 22, 2010

______________________________________________________________________________

SCOPE

This legal memorandum sets out the statutory provisions and legal principles regarding
pre-hearing detention of juveniles, specifically addressing the statutory changes brought about by
Senate Bill 264, signed into law on July 12, 2010 and the constitutional implication of
incarcerating a juvenile for a non-jailable offense.

LEGAL MEMORANDA AFFECTED

This legal memorandum supersedes the following, which are hereby rescinded as of this
writing:
Legal Memorandum 03-269 (March 13, 2003)
Legal Memorandum 03-269 (Supplement) (May 2, 2003)
Legal Memorandum 03-269 (2nd Supplement) (June 6, 2003)
Legal Memorandum 03-269 (2nd Supplement Revised) (August 6, 2004)
Legal memorandum 03-269 (3rd Supplement) (January 18, 2005)

This legal memorandum is related to the following:

Legal Memorandum 83-111 (June 10, 1983)
Legal Memorandum 92-191 (2nd Supplement) (July 26, 1994)
Legal Memorandum 92-191 (3rd Supplement) (May 11, 1998)

1
 DISCUSSION

STATUTORY REQUIREMENTS FOR PRE-TRIAL DETENTION OF A JUVENILE

A state’s physical confinement of an individual is a deprivation of a liberty interest

subject to review under the Due Process Clause of the Fourteenth Amendment to the United
States Constitution.1 This means that individuals have a right not to be confined for purposes that
constitutional principles place beyond the legitimate control of government.2 “[T]he right to the
enjoyment of liberty from confinement is not absolute.”3 Broadly speaking, there are two
purposes that justify a state deprivation of this right. “The right may be denied as punishment
upon conviction of a crime, and it may be denied in some limited circumstances as regulation,
for example, to prevent the spread of contagious disease.”4 A state may not detain persons prior
to adjudication to punish them.5 Instead, pretrial detention must serve some legitimate regulatory
purpose. Courts have recognized two: insuring the accused’s presence at trial and preventing
additional criminal acts.6

In regard to juveniles, these principles have been codified in 10 Del.C. §1007, which
provides guidance to the Court in determining when secure detention of juveniles is warranted
and permissible. 10 Del.C. §1007 was recently amended by Senate Bill 264, signed into law on
July 12, 2010, a product of the joint effort of the agencies involved in the Juvenile Justice
Collaborative (“Collaborative”). Working for several years toward the goal of reducing
unwarranted detention of juveniles, the Collaborative found that the prior provisions of 10 Del.C.
§1007 did not, “…adequately meet the circumstances faced by the courts dealing with juvenile
detention decisions.”7 In particular, the Collaborative found that violent misdemeanors against
parents, guardians and facility staff, escape from non-secure detention, intimidation of witnesses
and breaches of conditional release involving additional alleged charges proved difficult to
handle because they did not previously warrant secure detention.8

Senate Bill 264 expands the list of possible acts for which a child may be detained in a
secure facility and safeguards against abuse of detention. It requires that less restrictive options
be examined and requires a decision to override the presumptive analysis in a Risk Assessment
Instrument to be documented in writing.9

1
See Schall v. Martin, 467 U.S. 253 (1984)(holding that state statute permitting the pre-hearing detention of
juveniles because of the “substantial risk” of additional delinquent acts in the interim does not violate the Due
Process Clause). See also U.S. v. Melendez-Carrion, 790 F.2d 984, 998 (2nd Cir. 1986)(noting that physical
confinement is the “ultimate” deprivation of liberty).
2
See R. Rotunda & J. Nowak, 2 TREATISE ON CONSTITUTIONAL LAW at 530 (1999)(describing substantive due
process review).
3
U.S. v. Melendez-Carrion, 790 F.2d at 998.
4
Id.
5
See Bell v. Wolfish, 441 U.S. 520, 535 (1979)(holding that conditions of confinement in pretrial detention must be
reasonably related to the purpose of securing accused’s presence at trial or maintaining order in the detention
facility).
6
See, e.g., State v. Perkins, Del.Super., 2004 WL 1172894*2, Slights, J., (May 21, 2004) (acknowledging that, for
adult offenders, Delaware’s statutory bail scheme considers both risk of flight and preventive detention).
7
Synopsis of Senate Bill 264, 145the General Assembly.
8
Id.
9
Id.
2
 10 Del.C. §1007 in its new form continues to disfavor placing a child in secure detention
pending adjudication on an allegation of delinquency. The statute provides that pending
adjudication, a child may not be place in secure detention unless both elements of a two-pronged
test are met. First, the Court must determine that, “…no means less restrictive of the child’s
liberty gives reasonable assurance that the child will attend the adjudicatory hearing.” 10 If this
threshold requirement is met, the Court must then determine that one of the following nine
factors applies:

(1) The child is a fugitive from another jurisdiction on a delinquency petition; or

(2) The child is charged with an offense, which, if committed by an adult would
constitute a felony, including offences contained within this Title, Title 11, and Chapter
47 of Title 16, the Uniform Controlled Substance Act; or

(3) The child is charged with an offense, which, if committed by an adult would
constitute a Class A Misdemeanor, provided that offense involved violence, a sexual
offense, unlawful imprisonment, or a weapons offense; or

(4) The child has, in the past, failed to appear at a delinquency hearing and circumstances
indicate the child will likely fail to appear for further proceedings, or, absent a prior
history of failure to appear, circumstances demonstrate a substantial probability that the
child will fail to appear at a subsequent hearing; or

(5) The child is alleged to be intimidating one or more witnesses or otherwise unlawfully
interfering with the administration of justice; or

(6) The child has escaped from a secure or non-secure detention facility, or has
demonstrated a pattern of repeated failure to comply with court-ordered placement
pursuant to a delinquency petition in an out-of-home residential or foster care setting; or

(7) The child has incurred new charges while a resident, as a result of a prior delinquency
petition, of a non-secure detention facility, out-of-home residential or foster care setting
and the parent, guardian, custodian or facility refuses to take custody of the child; or

(8) The child has breached a condition of release; or,

(9) Having been released pending adjudication on prior charges for which the child could
have been detained, the child is alleged to have committed additional changes on which
the child would not normally be permissibly held in secure detention under this section.11

These nine factors represent the addition of five factors not present in the prior version of
10 Del.C. §1007. The new factors include the intimidation of witnesses, escape from a secure or
non-secure facility, incurring new charges while in an out-of-home placement, breaching a
condition of release and committing additional charges after having been released on prior

10
10 Del.C. §1007(a) states, in pertinent part:
“Pending adjudication no child alleged to be delinquent may be placed in secure detention operated by the
Department of Services for Children, Youth and Their Families unless the Court determines that no means less
restrictive of the child's liberty gives reasonable assurance that the child will attend the adjudicatory hearing…”
11
10 Del.C. §1007(a).
3
charges for which the child could have been detained. This last factor permits secure detention
even if the additional charge is not one that would traditionally warrant secure detention.

The strict relationship between the first and second requirements has a significant impact
on the court’s application of the statute. As previously noted, if the court determines that there is
a less restrictive means of insuring the child’s attendance at the hearing, the inquiry ends. This
means that, even if the child is charged with a delinquent act which would be a felony for an
adult, the court lacks statutory authority to order secure detention. There must be, in this
example, both a determination of no less restrictive means and a “felony” delinquency charge.
Conversely, the court shall not order secure detention, despite its conclusion that no less
restrictive means exists, if one of the nine factors is not also present. 12

If the first and second factors are both met, a third factor requires the court to consider
alternatives to placing the child in secure detention. 13 The statute provides the following five
alternatives that the court must consider:

(1) Release on the child’s own recognizance;

(2) Release to parents, guardian, custodian or other willing member of the child’s family
acceptable to the Court;

(3) Release on bail, with or without conditions;

(4) Release with imposition of restrictions on activities, associations, movements and

residence reasonably related to securing the appearance of the child at the next hearing;

(5) Release to a non-secure detention alternative developed by the Department of

Services for Children, Youth and Their Families such as home detention, daily
monitoring, intensive home base services with supervision, foster placement, or a non-
secure residential setting.14

These five factors were updated by the recent legislation to include a “willing member of
the child’s family” as a possible placement for the court to consider and also added that the

12
Logically, the existence of one of the other factors, i.e. fugitive status, willful failure to appear together with
probability of flight, or pattern of repeated failure to comply, will influence the threshold consideration. Thus, for
example, a child’s history of willfully failing to appear at a delinquency hearing and the substantial probability that
the child will abscond, see 10 Del.C. §1007(a)(3), may raise doubts about the efficacy of release. In the words of
the statute, such findings suggest that there is no less restrictive means of insuring the child’s appearance at the
hearing.
13
10 Del.C. §1007(b) states:
(b) Prior to making a decision of secure detention pending adjudication the Court shall consider and, where
appropriate, employ any of the following alternatives:
(1) Release on the child's own recognizance;
(2) Release to parents, guardian, custodian or other willing member of the child's family acceptable to the Court;
(3) Release on bail, with or without conditions;
(4) Release with imposition of restrictions on activities, associations, movements and residence reasonably related to
securing the appearance of the child at the next hearing;
(5) Release to a non-secure detention alternative developed by the Department of Services for Children, Youth and
Their Families such as home detention, daily monitoring, intensive home base services with supervision, foster
placement, or a non-secure residential setting.
14
Id.
4
release on bail may be “with or without conditions”. If any of these alternatives is appropriate,
the Court must employ it rather than place the child in secure detention.

Finally, 10 Del.C. §1007(c) mandates documentation. When the court places a child in
secure detention, the Court must set out in writing: 1) its basis for determining that no less
restrictive alternative exists that will insure the child’s appearance, 2) which of the nine factors it
found present, and 3) its reasons for not using one of the five alternatives. Additionally, if a Risk
Assessment Instrument has been completed for the child, with the presumptive disposition being
to release the child or hold the child in a non-secure detention facility, the court must place in
writing the basis for overriding the presumption.15

CONSTITUTIONAL IMPLICATIONS OF INCARCERATING A JUVENILE FOR A

NON-JAILABLE OFFENSE

The constitutionality of pre-trial detention of an individual for a non-incarcerable offense

has been addressed by Chief Magistrate Barron and Chief Magistrate Griffin. An additional
reminder is warranted, however, when discussing pre-trial detention of juveniles as constitutional
protections apply to juveniles as well as adults. Although not yet addressed by the Delaware
Courts, the U.S. District Court for the Eastern District of Virginia declared unconstitutional the
practice of incarcerating persons for non-jailable offenses solely for failure to meet bail. After
reaching this conclusion, the Court also awarded requested fees against the Magistrate that had
ordered the incarceration.16

This holding is consistent with a West Virginia Supreme Court decision in which the
Court concluded that jailing an indigent charged with an offense which did not carry the penalty
of incarceration, solely because he was unable to post bond, violated the Equal Protection Clause
of the United States and West Virginia Constitutions.17 This decision relied upon several United
States Supreme Court cases, including Tate v. Short, in which the Supreme Court held that
incarcerating a defendant convicted of an offense which did not otherwise carry a jail term
because he was unable to pay the fine was unconstitutional. 18 It is significant to note that in the
above-referenced decisions, the detainment was deemed unconstitutional based solely on the
defendant’s inability to make bail or pay a fine. If the juvenile is detained on the basis of the 10
Del.C. §1007 statutory requirements, this analysis would not be applicable.

Based upon the clear trend of decisions related to this issue, I concur with the
recommendation of my predecessors that you should not incarcerate juvenile or adult defendants
for failure to make bail on a non-jailable offense and seek appropriate alternatives.

15
10 Del.C. §1007(c) states:
(c) If the Court places a child in secure detention pending adjudication, the Court shall state in writing the basis for
its detention determination pursuant to subsection (a) of this section and the reasons for not employing any of the
secure detention alternatives under subsection (b) of this section. In the event that a Risk Assessment Instrument has
been completed for the child for the pending offense, with the resulting presumptive disposition being to release the
child, or hold the child in a non-secure detention facility, the Court shall further state in writing the basis for
overriding that presumption.
16
Allen v. Burke and Pulliam, 690 F.2d 376(4th Cir. 1982), aff. 104 S.Ct. 1970 (1984).
17
Robertson v. Goldman, W.V. Supr., 369 S.E.2d 888 (1988).
18
Tate v. Short, 91 S.Ct. 668 (1971).
5
 CONCLUSION

Although pretrial detention to insure presence at trial is a legitimate purpose of

confinement, Delaware law restricts the use of secure detention for children pending adjudication
of delinquency charges. 10 Del.C. § 1007 dictates four requirements a court must meet to order
secure detention:

1) The court must determine that no less restrictive means of insuring the child’s
appearance exists; and
2) The court must determine that one of nine factors is met, indicating that attendance at
an adjudicatory hearing is unlikely unless secure detention is ordered; and
3) The court must also consider and employ, if appropriate, five listed alternatives to
secure detention; and
4) The court must document its findings in writing.

Senate Bill 264, signed into law on July 12, 2010 provided additional factors for the Court to
consider in determining whether attendance at a hearing is unlikely unless secure detention is
ordered. These additional factors, developed in a collaborative effort among juvenile justice
agencies, provide the Court adequate provisions to meet the circumstances faced with making
juvenile detention decisions. In addition to the statutory considerations for pretrial detention, the
Court must also be cognizant of the constitutional implications of ordering secure detention
based solely on the juvenile’s inability to post bail.

cc: Honorable Myron T. Steele

Honorable James T. Vaughn, Jr.
Honorable Alex J. Smalls
Honorable Chandlee Johnson Kuhn
All Justice of the Peace Courts
Maryanne Kennedy
Jody Huber
Stephanie Montgomery
H. John Betts
City of Wilmington Law Department
Law Libraries: New Castle County, Kent County, Sussex County,
Widener University School of Law