Secure Detention of Status Offenders

A research-based policy response to the Georgia General Assembly

Forward

For several years the Georgia General Assembly has considered legislation to address confusion in the current juvenile code around the treatment and secure detention of status offenders. For example, in 2006 House Bill (HB) 1396¹ was introduced and, if passed, would have allowed children over 14 years of age who were picked up for curfew violations and were "unruly toward a law enforcement officer" to be held in custody for up to 72 hours. The proposed bill would have also allowed unruly children who were 16 years of age or older to be restrained in a cell while in custody if they engaged in disruptive or unruly behavior while at a holding facility.

The 2007 legislative session saw the introduction of two bills, HB 52 and HB 662, both of which are still open for consideration by the 2008 Session of the Georgia General Assembly. HB 52² would prohibit the pre-adjudication, interim detention of all children under 16 years of age and would instead require the child's release to his or her parents, provided that the parents promise to bring the child before the court.

HB 662³ would significantly revise existing law regarding the treatment of status offenders. Among many other changes, HB 662 would place new requirements on juvenile courts before allowing the secure detention of status offenders. Specifically, the bill requires the judge presiding at the probable cause hearing to determine if the child has violated an existing court order; and requires the judge to review a written report submitted by an independent agency that reviews the child's behavior and determines whether all nonsecure disposition options have been exhausted or are inappropriate before detaining a child found to have committed a status offense.

The students and faculty of the Barton Child and Policy Clinic at Emory University School of Law hope that this white paper will aid policy makers and stakeholders as they continue to explore appropriate legislative responses to the secure detention of status offenders in Georgia. The recommendations in this paper are intended to bring the current Georgia Code into compliance with federal law in order to better serve Georgia's children.

Executive Summary

"Status offenses" are offenses such as truancy, running away from home, curfew violations, or other offenses that would not be crimes if committed by an adult. Georgia's children who commit status offenses are being detained for days, weeks, even months in secure juvenile detention facilities around the state. Yet, the practice of securely detaining children who commit status offenses violates federal law, diverges from best practices for treating youth charged with status offenses, and potentially places Georgia's federal funding for its juvenile justice system in jeopardy.

Under the federal Juvenile Justice and Delinquency Prevention Act (JJDPA), Georgia receives $1.8 million in formula grants by agreeing to comply with the Act's four core mandates: (1) the deinstitutionalization of status offenders; (2) the separation of juvenile and adult offenders; (3) the removal of juveniles from adult jails and lockups; and (4) the reduction of disproportionate minority contact. However, Georgia law is in direct conflict with the first and central mandate of JJDPA: the deinstitutionalization of status offenders.

The JJDPA allows states to detain status offenders in secure confinement for no more than 48 hours, unless the child has violated a valid court order (VCO), and the state has followed all of the requirements necessary to invoke the VCO exception.⁴ Yet, due to contradictions and lack of clarity in Georgia law, repeat status offenders and runaway youth, regardless of whether they have violated a valid court order, can be detained for 46 days before disposition and longer afterward -- far more than the mere two days allowed under federal law.⁵

Even in cases in which children are brought before Georgia courts on violations of court orders, there are no statutory procedures in place that satisfy the requirements of the VCO exception. For example, Georgia law does not require that a child have a hearing on the violation of a court order within 24 hours, as JJDPA demands. Instead, a child in Georgia may stay in a locked facility awaiting a detention hearing for up to 3 days and awaiting a hearing on the merits for an additional 13 days.

Failure to comply with JJDPA's mandate to reduce detention of status offenders puts Georgia in direct conflict with federal law and places youth who commit status offenses at greater risk for future involvement with the juvenile justice system. In addition, if found not to comply with federal law, Georgia could face a 25% reduction in federal funds and would have to devote the remaining JJDPA funds to reducing the detention of status offenders. Until reaching substantial compliance with JJDPA's deinstitutionalization goal, Georgia would be unable to use JJDPA funds for any other juvenile justice purpose.

This paper outlines simple legislative approaches that would ensure Georgia's compliance with the federal mandate of reducing the secure detention of status offenders. These recommended changes would better serve Georgia's children by improving practices in the juvenile justice system and moving children out of locked facilities and into the treatment and rehabilitation services they need. In addition, the changes would help Georgia avoid potential federal penalties for non-compliance with the JJDPA's deinstitutionalization mandate.

Introduction

To comply with the JJDPA, Georgia is required to reduce the secure detention rates of children who commit status offenses. However, in Georgia, some children who commit status offenses are being detained for up to 46 days. Not only is this detention a violation of federal law, it places youth who commit status offenses at greater risk of further involvement with the juvenile justice system. Furthermore, non-compliance potentially puts Georgia's nearly $2 million in necessary JJDPA dollars in jeopardy.⁶ This paper looks at this problem in four parts:

• First, it outlines current Georgia law. It explains how a child who commits a status offense or is "unruly" may be detained in Georgia, for how long he may be detained, and at which points he may expect a hearing. O.C.G.A. §§ 15-11-2, 15-11-45, 15-11-46, 15-11-46.1, 15-11-47, 15-11-48, 15-11-49.

• Second, it outlines the governing federal law, the JJDPA, 42 U.S.C. § 5601 et seq., and its regulations, 28 C.F.R. § 31.303. It highlights both the importance of deinstitutionalizing status offenders and the conflicts between the Georgia law and federal law.

• Third, it discusses how these conflicts have left Georgia practice in a state of confusion and forced juvenile court judges and others in the juvenile justice system to try to reconcile the conflicts while lacking the necessary legislative power to do so.

• Finally, it proposes legislative changes that would bring Georgia law into compliance with JJDPA, ensure best practices for children, and guarantee the State's future federal revenue stream. The first option would be to amend the Georgia Code to mirror the language of the JDDPA, as other states have attempted to do. The second option would be to remove all penalties for status offenses, thereby ensuring that status offenders are completely deinstitutionalized. These options would not only protect the State's funding but would create a comprehensible set of procedural rules for the juvenile justice system and improve Georgia's response to its children in need of treatment and rehabilitation rather than secure confinement.

Georgia Law

In Georgia, a child who commits a status offense is generally referred to as an "unruly child."

A child who commits "an offense which would not be a crime if it were committed by an adult," such as possessing or using alcohol, routinely skipping school, or running away from home, is a "status offender." O.C.G.A. § 15-11-2(11). Under Georgia law, a child who commits a status offense and is in need of supervision, treatment or rehabilitation is an "unruly child." O.C.G.A. § 15-11-2(12).⁷ In practice, the terms "status offender" and "unruly child" are used interchangeably, and this paper uses the terms synonymously as well.⁸

If a child is suspected of having committed a status offense, he may be taken into custody. O.C.G.A. § 15-11-45. If that child is a runaway or has committed a status offense before, he may then be detained in a secure juvenile detention facility for days or even weeks as the case against him progresses through the court system. The prolonged detention of these young status offenders is the result of a number of state statutes working together, as outlined in more detail below.

After being taken into custody, a child accused of being unruly may be detained for 12 hours in a holding facility.

Although the Georgia Code contains a statutory presumption against detaining accused children pending court proceedings,⁹ a child taken into custody may be detained if necessary to protect the child from harming himself or others, or to prevent the child from fleeing. See O.C.G.A. § 15-11-46.1; O.C.G.A. § 15-11-46.

If a child is taken into custody for being unruly, he may be held for up to 12 hours in a special holding facility for unruly children. O.C.G.A. § 15-11-47. If the child is disruptive while in custody, he may be restrained in a cell apart from other children. Id. By the end of this 12-hour grace period, the child must be released or brought before a juvenile court judge or intake officer, who may choose to detain him further. Id.

After the initial period of custody, a child accused of being unruly may be transferred to an appropriate "place of detention," such as a secure juvenile detention facility.

If the child is not released from custody after the initial 12 hours, he must be transferred from the holding facility to an appropriate "place of detention" as defined by O.C.G.A. § 15-11-48(e). This Code Section states that children who are deemed unruly can only be held in "a licensed foster home or a home approved by the court which may be a public or private home or the home of the noncustodial parent or of a relative" or in "a facility operated by a licensed child welfare agency." O.C.G.A. § 15-11-48(a)(1) and (2). Under certain circumstances, with specified time limits, as discussed in detail below, an unruly child can be placed in "a detention home or center for delinquent children." O.C.G.A. § 15-11-48(a)(3).  Thus, under state law, "detention" of an unruly child may be secure or nonsecure.  Id.  Throughout Title 15, however, the term "detention" is used without specific reference back to the definitions contained in O.C.G.A. § 15-11-48. 

As explained below, this ambiguity has led some Georgia juvenile court judges to construe state statutes to permit long periods of secure detention pending the child's court proceedings.  See, e.g., O.C.G.A. § 15-11-39(a) (allowing 10 days of "detention" between the filing of an unruliness petition and an adjudicatory hearing on the petition); O.C.G.A. § 15-11-65(a) (allowing 30 days in a "detention facility" between the adjudicatory hearing and the dispositional hearing).  As a result, some of Georgia's status-offending children are staying in locked facilities for extended periods of time while their cases move through the courts.

A child accused of being unruly may be detained in a secure facility for up to 72 hours before an initial detention hearing.

When an allegedly unruly child is detained pending a hearing, Georgia law differentiates between the first-time offender, the repeat offender, and the runaway. O.C.G.A. § 15-11-48(e) states in relevant part:

A child unruly or alleged to be unruly who has not been released from custody . . . may be detained or placed in shelter care only in the facilities stated in paragraphs (1) and (2) of subsection (a) of this Code section or in a secure juvenile detention facility for a period not to exceed 72 hours;

provided, however upon written order of the judge having jurisdiction of the case and upon good cause shown, a child alleged to be unruly may be detained for one additional period not to exceed 48 hours;

provided, further, that no child alleged to be or found to be unruly who has not previously been adjudicated unruly may be detained in a secure juvenile detention facility

unless such child is alleged to be under the court's jurisdiction as provided in subparagraph (D) of paragraph (12) of Code Section 15-11-2 [runaways] and then shall be detained in that facility only so long as is required to effect the child's return home or to ensure the child's presence at a scheduled court appearance when the child has previously failed to appear for a scheduled court appearance . . . .¹⁰ (paragraph breaks added).

The statute can be parsed in the following way.

First Time Status Offender: A child who has not previously been adjudicated unruly (with the exception of runaways) may never be detained in a secure juvenile detention facility. Instead, a first-time status offender may only be placed in non-secure shelter care for up to 72 hours, either in (1) a foster home or a court-approved home, such as the home of a noncustodial parent or relative, or (2) a licensed child welfare facility. A juvenile court judge with jurisdiction over the case may extend the detention for 48 hours, for a total of 5 days, upon written order of "good cause shown." O.C.G.A. § 15-11-48(e).

Repeat Status Offender: In contrast, a child who has been previously adjudicated unruly may be detained in a secure juvenile detention facility or placed in shelter care for up to 72 hours, as well as an additional 48 hours for "good cause shown" upon a written order by a juvenile court judge with jurisdiction over the case.

Runaway Child:¹¹ A runaway child, even a first-time offender, may be detained in a secure facility. Although the statute does not clearly set forth the length of time that a runaway child may be held, presumably a runaway can be held for at least 72 hours, pursuant to the general rule of O.C.G.A. § 15-11-48(e).¹² Pursuant to the rule's second proviso, the judge can extend that period for "so long as is required to effect the child's return home or to ensure the child's presence at a scheduled court appearance when the child has previously failed to appear for a scheduled court appearance."¹³

A child accused of being unruly may receive a detention hearing as late as 72 hours after being detained.

A child who is accused of being unruly has a right to an informal detention hearing "not later than 72 hours after the child is placed in detention or shelter care." O.C.G.A. § 15-11-49(c)(2).¹⁴ This initial hearing has two purposes: to determine whether there is probable cause to believe the allegations of unruliness, and to determine whether the child should continue to be detained pending further court proceedings. O.C.G.A. § 15-11-46.1; Uniform Juvenile Court Rules 8.1.

A child accused of being unruly may be securely detained for an additional 48 hours for good cause shown.

At the end of the detention hearing, the court may choose to detain the child further. If a child is a repeat offender and has already been securely detained for 72 hours, the court may extend his detention for an additional 48 hours with a written court order and good cause shown. O.C.G.A. § 15-11-48(e). If the child is a runaway, the court may extend the detention for "so long as is required" to secure the child's return home or his presence at his next court date. Id.

Due to lack of clarity in Georgia law, a child accused of being unruly may be securely detained for 13 days between a detention hearing and adjudicatory hearing.

Some juvenile courts have construed Georgia law as giving them the authority to hold a child in a secure facility from the time of the child's detention hearing until his adjudicatory hearing, for a period of up to 13 days. Section 15-11-49(e) permits a court to detain a child for three days after the detention hearing to allow for the filing of a petition of unruliness, which commences the case against the child. Section 15-11-39(a) allows the court to detain the child for an additional 10 days until an adjudicatory hearing can be held on the charges in the petition.¹⁵

These Code sections, however, authorize detention generally, not secure detention specifically. Thus, some practitioners argue that once the alleged unruly child has been detained in a secure facility for the maximum of 5 days permitted by Section 15-11-48(e), all further detention must be in a non-secure facility. As mentioned above, Georgia's juvenile code, however, uses the word detention to mean both secure and non-secure detention. See O.C.G.A. § 15-11-48. As a result, some juvenile courts construe Sections 15-11-49(e) and 15-11-39(a) as authorizing an additional 13 days of secure detention pending an adjudicatory hearing.

An unruly child may be detained an additional 30 days between an adjudicatory and dispositional hearing.

Courts have also construed Georgia law as giving them the authority to securely detain a child found to be unruly at an adjudicatory hearing for an additional 30 days pending a dispositional hearing. O.C.G.A. § 15-11-65 states:

(a) Dispositional hearing for delinquent or unruly child. If the court finds proof beyond a reasonable doubt that a child committed the acts of which he or she is alleged to be delinquent or unruly, it shall proceed immediately or at a later time to conduct a dispositional hearing . . . If the child is to be held in custody at a detention facility between the adjudicatory hearing and the dispositional hearing, the court shall conduct the dispositional hearing within 30 days of the adjudicatory hearing unless the court makes and files written findings of fact explaining the need for the delay.

The statute contemplates delays, providing that if the court does not conduct the dispositional hearing within 30 days, it must file written findings of fact. Presumably, such detention without disposition could go on indefinitely until the child's attorney brought a habeas corpus petition.

Like the Code sections discussed above which permit 13 days of detention between a detention and an adjudication hearing, Section 15-11-65 permits 30 days of detention without specifying whether that detention is to be secure or non-secure. In practice, it is primarily delinquent children who are detained in secure facilities for this length of time. However, because of the ambiguity in the Georgia law, juvenile courts have construed Section 15-11-65 as permitting an unruly child to be securely detained for these additional 30 days as well.

An unruly child may be committed to a secure facility at the conclusion of his court proceedings.

At the conclusion of the dispositional hearing, an unruly child may be ordered to spend even more time in a secure facility as a final disposition. Under Section 15-11-67, a court may make any disposition for an unruly child that is authorized for a delinquent child, including placement in a secure facility. For example, a court may order an unruly child into a local or court-run "institution, camp or other facility for delinquent children," which may include locked facilities. O.C.G.A. § 15-11-67; O.C.G.A. § 15-11-66(a)(3) (authorizing locked facilities as a disposition for delinquent children).

The court may also commit the child to the Department of Juvenile Justice (DJJ) if it first finds that "the child is not amenable to treatment or rehabilitation pursuant to paragraph (1), (2) or (3) of subsection (a) of Code Section 15-11-66." O.C.G.A. § 15-11-67.¹⁶ In other words, if the court concludes that there is no appropriate placement for the child outside of DJJ, it may commit the child to DJJ, which may then place the child into a secure juvenile detention facility.¹⁷

Consequently, it is possible for an unruly child in Georgia to be securely detained for many days as his case proceeds through the court system and then spend even more time in a locked facility as part of his final disposition.

Summary of Georgia law

In sum, under Georgia law, children who are charged with a status offense may be initially detained for up to 12 hours in a special facility for unruly children. After that, repeat offenders and runaways may be transferred and detained in a secure juvenile detention facility for up to 72 hours before an initial court appearance, and detained for an additional 48 hours for good cause shown. The court may hold runaways even longer if necessary to secure their return home or presence at court. Because of ambiguities in Georgia law, a court may also order a child securely detained for three days following the child's detention hearing until the filing of a petition of unruliness; another 10 days from the filing of the petition to the adjudicatory hearing; and yet another 30 days from the adjudicatory hearing to the dispositional hearing. If the child ultimately is found to be unruly by the court, the child may face even more time in a secure facility as a final disposition. Thus, it is entirely possible in Georgia for a repeat status offender or runaway child to spend 46 days in some type of secure detention before receiving treatment, rehabilitation or any disposition at all -- excluding court continuances -- and then spend even more time in a secure facility as a final disposition. As outlined in the next section of this paper, federal law, as a general rule, allows status offenders to be held no more than two days.

Federal Law:

The Juvenile Justice and Delinquency Prevention Act (JJDPA)

Available research on youth who commit status offenses supports the JJDPA prohibition on the secure detention of these children.¹⁸ Many youth who engage in status-offending behaviors like skipping school or drinking alcohol participate in these behaviors due to family, school, or community problems.¹⁹ For instance, many youth who skip school face "domestic violence, academic problems, substance abuse, a lack of parental involvement in education, and health issues."²⁰ Additionally, many children who run away from home experienced sexual or physical abuse in the year before they ran away, and other runaways face drug use in their home or other types of family dysfunction.²¹ These issues are best treated through the mental health and child welfare systems.²²

The JJDPA recognizes that children who commit status offenses should not be re-victimized through placement in secure detention facilities and are instead in need of services and treatment. Thus, in 2002, when Congress reauthorized the JJDPA, 42 U.S.C. §5601 et seq., it reaffirmed the Act's four core mandates with which states must comply to receive federal formula grants: (1) deinstitutionaliza- tion of status offenders; (2) separation of juveniles from adults in institutions; (3) removal of juveniles from adult jails and lockups; and (4) reduction of disproportionate minority contact. 42 U.S.C. § 5633. Each state must submit a three-year plan for meeting the mandates, along with annual compliance monitoring reports. 42 U.S.C. § 5633(a).

Federal grants under JJDPA

In order to receive full funding, a state must achieve compliance with each of the four mandates. A state's funding may be reduced by 25% for each mandate it fails to achieve, and the state must agree to spend all its remaining funds to achieve compliance with the mandates that it failed to meet. 28 C.F.R. § 31.303(f)(6).²³ Full compliance with the mandate to deinstitutionalize status offenders "is achieved when a State has removed 100 percent of status offenders . . . from secure detention and correctional facilities or can demonstrate full compliance with de minimis exceptions." 28 C.F.R. § 31.303(f)(6)(i).

Most states achieve compliance by satisfying the de minimis exception.²⁴ The exception has three criteria. Criterion A considers the extent to which non-compliance is insignificant in terms of the total juvenile population in the state. States that institutionalize fewer than 5.8 status offenders per 100,000 juveniles qualify for the de minimis exception without having to meet any additional criteria. States that have a higher institutionalization rate must address Criterion B, which measures the extent to which non-compliant detentions are in violation of state law or policy or, in other words, are aberrations. These states must also address Criterion C, which measures the extent to which the state has an acceptable plan for eliminating non-compliant incidents that were part of a pattern or practice consistent with the existing state law or policy. 46 Fed. Reg. 2566 (January 9, 1981).

Georgia currently receives approximately $1.8 million in federal grant money that is dependent upon its compliance with JJDPA's deinstitutionalization mandate under the de minimis exception. Thus, the failure to continue complying with federal restrictions on the detention of status offenders could be costly. Not only would it eliminate 25% of these funds for a total loss of $450,000, but it would prevent the State from using the remaining funds of $1,350,000 for anything else but finding ways to decrease detention of status offenders.

Federal mandate to deinstitutionalize status offenders

The general rule: maximum detention of 48 hours

While the federal statute prohibits detention of status offenders, federal regulations permit states to detain a child accused of a status offense for a maximum period of 48 hours -- 24 hours before an initial court appearance and 24 hours afterward. 28 C.F.R. § 31.303(f)(2). The federal regulations provide these two 24-hour grace periods to give states some leeway in achieving compliance with JJDPA.²⁵

Section 5633 of the federal statute states,

In order to receive formula grants under this part, a State shall submit a plan for carrying out its purposes . . . [S]uch plan . . . shall . . . provide that juveniles who are charged with or who have committed an offense that would not be criminal if committed by an adult . . . shall not be placed in secure detention facilities or secure correctional facilities." 42 U.S.C. § 5633 (a)(11) (emphasis added) (numbering omitted).

However, Section 31.303 of the federal regulations provides two 24-hour grace periods:

Accused status offenders . . . in lawful custody can be held in a secure juvenile detention facility for up to twenty-four hours, exclusive of weekends and holidays, prior to an initial court appearance and for an additional twenty-four hours, exclusive of weekends and holidays, following an initial court appearance. 28 C.F.R. § 31.303(f)(2).

These grace periods not only help states comply with JJDPA's mandate to deinstitutionalize status offenders, but they also allow states time to identify the child, conduct an investigation, and release the child to a parent, guardian, court appointee, or non-secure facility.

Simple math shows that Georgia law is far out of line with the JJDPA formula:

• Before an initial hearing: A repeat status offender or runaway in Georgia may be detained in a secure juvenile detention facility for 72 hours -- not the federally-allowed 24 hours -- before his initial detention hearing. Indeed, it may be possible for a court to hold a runaway even longer if necessary to secure her return home or presence at a court proceeding.

• After an initial hearing: Even under the most restrictive reading of the statute, the same child may be detained in a secure facility for 48 hours -- not the federally mandated 24 hours -- after the detention hearing. Because of ambiguities in the statute, however, some have interpreted the statute to permit secure detention for 43 days after the detention hearing: three days between the child's detention hearing and the filing of an unruliness petition; another 10 days between the petition's filing and the adjudicatory hearing; and yet another 30 days between the adjudicatory and dispositional hearings, excluding any court continuances. Again, a runaway child may be held even longer. An unruly child may also be committed to a secure facility as a final disposition.

Put simply, rather than status offenders spending a maximum of 48 hours in detention as dictated by federal law, Georgia law allows status offenders to be detained for days, weeks, even months in locked facilities.

The valid court order exception: maximum detention of 72 hours, plus detention as a possible final disposition

Some of the children in Georgia who are detained for longer periods of time have likely violated a prior court order, such as a probation order, supervision order, or order of conditional release from detention. These orders might have required the child to abide by a particular curfew, attend school without unexcused absences, or participate in after school programs.

In 1980, JJDPA was amended to include the "valid court order" (VCO) exception to its general rule that status offenders may not be detained in secure detention facilities. 42 U.S.C. § 5633(a)(23). Under this exception, a child may be securely detained beyond the 24-hour grace periods if the child is charged with violating a VCO. 24 C.F.R. § 31.303(f)(3)(iv):

A juvenile accused of violating a valid court order may be held in secure detention beyond the 24-hour grace period . . . for protective purposes . . . or to assure the juvenile's appearance at the violation hearing . . . if there has been a judicial determination based on a hearing during the 24-hour grace period that there is probable cause to believe the juvenile violated the court order. In such a case, the juveniles may be held pending a violation hearing for such period of time as is provided by State law, but in no event should detention prior to a violation hearing exceed 72 hours exclusive of nonjudicial days. A juvenile alleged or found in a violation hearing to have violated a Valid Court Order may be held only in a secure juvenile detention or correctional facility, and not in an adult jail or lockup." 28 C.F.R. § 31.303(f)(3)(iv) (emphasis added).

In sum, the VCO exception allows a court to detain a child in a secure facility for up to 72 hours pending a "violation hearing" to determine whether the child violated a valid court order. It also allows a court to order the child into a secure placement if it finds at the hearing that the order was violated. Id.

In order to detain a child under the VCO exception, however, the court must meet certain specific requirements:

• The court must hold a probable cause hearing on the alleged VCO violation within 24 hours of the child being placed in detention, 28 C.F.R. § 31.303(f)(3)(iv);²⁶

• The court must hold a violation hearing to determine whether the child violated the VCO within 72 hours of the child being placed in detention, 28 C.F.R. § 31.303(3)(iv);

• The court must provide the child with constitutional due process rights at the initial hearing when the VCO was issued, the probable cause hearing and the final violation hearing, 28 C.F.R. § 31.303(f)(3)(i), (ii), (iii), (v);

• Before the hearing to determine whether the child violated a valid court order, or the "violation hearing," the court must also obtain and review a written report from an independent agency that reviews the child's behavior and determines "whether all dispositions other than secure confinement have been exhausted or are clearly inappropriate." 28 C.F.R. § 31.303(f)(3)(vi).²⁷

Georgia law not only fails to conform to the general rule of the JJDPA, but it also fails to conform to the VCO exception. First, nowhere in the Georgia Code is it required that a child offender violate a VCO before he is detained longer than 48 hours. Instead, these children, with the exception of first-time offenders, may be held for extended periods of time without having violated—or even being subject to—a VCO of any kind.

Further, in those cases where status offenders have violated orders that could be considered VCOs, Georgia law does not demand that the specific requirements of the VCO exception be met. For example, while the VCO law requires that a child be given a probable cause hearing within the first 24 hours of detention, Georgia law allows a court to keep a child locked in a detention facility for 72 hours before having an opportunity to be heard. O.C.G.A. § 15-11-49.

Moreover, even if the court were to give the child a detention hearing within 24 hours, that child still may be detained for much longer periods of time than the maximum period of 72 hours allowed under the VCO exception, excluding final dispositions. For instance, if that child were found to be unruly at an adjudicatory hearing, he may be held in a secure facility for 30 days, not including any court delays, waiting for a hearing on his final disposition. O.C.G.A. § 15-11-65.

In addition, the JJDPA requires a court to obtain and review an independent agency report of the child's behavior and disposition options before committing a status offender who has violated a VCO to a secure placement. Yet, Georgia law allows a court to commit that same child to a secure institution for delinquent children without first considering nonsecure options or to commit him to the Department of Juvenile Justice, which may result in secure detention, without first receiving the input of an independent agency. O.C.G.A. § 15-11-67.

Thus, Georgia and federal law are at odds with respect to how long courts may detain status offenders -- with or without a violation of a valid court order -- and as the next section of this paper shows, Georgia's juvenile justice practice has suffered as a result.

Georgia Practice

The conflict between Georgia's law, which has been construed to permit repeat status offenders and runaways to be held in secure confinement for 46 days before disposition, and the federal law, which permits these children to be held for no more than two or three days, does more than jeopardize Georgia's JJDPA revenue stream. It also creates a legal practice that is marked by confusion and inconsistency.

The Council of Juvenile Court Judges acknowledges this confusion in a guide book it issues to Georgia juvenile court judges: "The laws which apply to the detention hearing of unruly or status offenders derive from two conflicting sources: (1) the Georgia Code and (2) Federal Regulations governing the receipt of federal funding for Georgia's juvenile justice system."²⁸ While the guide book attempts to aid judges in applying the rules in a fair and consistent way, it cannot reconcile certain conflicts. For example, when advising judges about the timing of as to when a detention hearing shall be held, the guide simply states, "Georgia: Within 72 hours after placed in detention. Federal: Within 24 hours after placement in detention excluding weekends and holidays."²⁹

Because Georgia's juvenile courts are guided by two sets of irreconcilable legal rules, it is difficult to predict the outcome of judges' detention decisions across the state. Some judges may choose to order longer periods of detention, which are permissible under Georgia law but forbidden under federal law, while other judges may choose the opposite approach. A judge's choice may vary depending on the facts of individual cases and the particular arguments of counsel. This changing playing field hurts all of the players in the juvenile justice system, particularly the children who face varying lengths of detention. It also puts Georgia's rate of JJDPA compliance—and its federal dollars—at the mercy of Georgia's practitioners and how they happen to apply state and federal laws on any given day.

A snapshot of Georgia's detention figures reveals that, in fact, great numbers of Georgia's children are being detained on status offenses for extended periods of time. Recent figures supplied by the Georgia Department of Juvenile Justice (DJJ) show that there were more than 1,900 children detained in Georgia's Regional Youth Detention Centers (RYDC) as status offenders in fiscal year 2006. Of that number, 1,231 were 15 years old or younger.³⁰

An additional study by DJJ looked at "pure" status offenders detained in RYDC between July 1, 2005 and May 31, 2006.³¹ Although this study excluded children who had been previously adjudicated for other offenses or were charged with additional non-status offenses, it still identified more than 1,000 pure status offenders in detention in less than one year. An analysis of their length of stay indicated that more than 50% of the children were detained five days or less, while the remainder were detained an average of more than 20 days.³²

Nevertheless, according to Georgia's compliance monitoring agency, the Children and Youth Coordinating Council (CYCC), Georgia is in compliance with JJDPA's deinstitutionalization mandate with de minimis exceptions.³³ In 2004 and 2005, CYCC reported to the Office of Juvenile Justice and Delinquency Prevention that Georgia satisfied the de minimis exception by maintaining a low institutionalization rate: 6.69 non-compliant detentions per 100,000 juveniles in 2004 and 5.75 non-compliant detentions in 2005.³⁴ Making use of the VCO exception has helped to lower the number of non-compliant detentions. According to CCYC, the State detained 266 juveniles in 2004 and 152 juveniles in 2005 for extended periods of time under the VCO exception.³⁵

With 1,000 to 2,000 children detained annually, CYCC must confirm each year that hundreds and hundreds of Georgia's children have been detained two days or less in order to once again secure JJDPA funding for the State. Given the vast discrepancy between Georgia and federal law and the variability of Georgia practice, this cannot be an easy task. And it would be foolhardy to hope that compliance can continue to be achieved without statutory change, especially statutory change that is simple and relatively costless.³⁶

The next section of this paper offers recommendations for how to align Georgia law with JJDPA's mandate for the deinstitutionalization of status offenders to better serve Georgia's youth by limiting their time in detention, and to ensure Georgia's future JJDPA funding.

Legislative Recommendations

This paper recommends the following legislative actions: (1) amend the Georgia Code to incorporate the language of the JJDPA, or (2) remove the penalties for status offenses. Either recommendation would ensure Georgia's compliance with the JJDPA's deinstitutionalization mandate, protect Georgia's children from the overuse of detention, and safeguard the State's future access to $1.8 million in needed federal funding.

1. Adopt statutory language that incorporates JJDPA language

Some states have incorporated JJDPA language into their statutes to fully conform to the federal law and ensure federal funding. The following is an example of a Missouri state statute that uses JJDPA language and the VCO exception.³⁷

Missouri Statute

211.063. Secure detention, limitations -- probable cause hearing required, when -- definitions -- application of law

1. A child accused of violating the provisions of subdivision (2) of subsection 1 of section 211.031 [unruly/status offender] shall not be held in a secure detention placement for a period greater than twenty-four hours, excluding Saturdays, Sundays and legal holidays, unless the court finds pursuant to a probable cause hearing held within that twenty-four-hour period, that the child has violated the conditions of a valid court order and that:

(1) The child has a record of willful failure to appear at juvenile court proceedings; or

    (2) The child has a record of violent conduct resulting in physical injury to self or others; or

    (3) The child has a record of leaving a court-ordered placement, other than secure detention, without permission.

2. As used in this section, the following terms mean:

    (1) "Secure detention", any public or private residential facility used for the temporary placement of any child if such facility includes construction fixtures designed to physically restrict the movements and activities of children held in the lawful custody of such facility;

    (2) "Valid court order", an order issued by a court of competent jurisdiction regarding a child who has been brought before the court, which sets forth specific conditions of behavior for the child and consequences of violations of such conditions.

3. This section shall not apply:³⁸

    (1) To a child who has been taken under the jurisdiction of the court pursuant to subdivision (3) of subsection 1 of section 211.031; or

    (2) To a child who was adjudicated pursuant to subdivision (3) of subsection 1 of section 211.031 after being taken under the jurisdiction of the court; or

    (3) To a child who is currently charged with a violation under subdivision (3) of subsection 1 of section 211.031.

One of the benefits of having a state statute that mirrors the statutory language of the JJDPA is that judges have an additional level of authority binding them to comply with the law. In addition, a higher rate of compliance with the law will help ensure that Georgia follows best practices for treating children who commit status offenses, likely foster a better relationship between the Department of Juvenile Justice and the Council of Juvenile Court Judges, and decrease Georgia's risk of losing federal funds. Another positive prediction with a statutory change similar to Missouri's would be the change in law enforcement action.

The Missouri statute, however, does not go far enough. It omits the 72-hour limit on detention from the VCO exception, as well as some of the due process guarantees that the federal law requires. These oversights are addressed in the recommended changes to the Georgia Code set forth below.

Proposed Amendment to Georgia Code

To align the Georgia Code to JJDPA and ensure continued receipt of federal grant money, the Code must be amended as follows:

1. Amend O.C.G.A. § 15-11-1 to state the Legislature's intention to conform with the federal mandate to deinstitutionalize status offenders;

2. Strike and amend language that conflicts with the federal restrictions on the detention of status offenders from O.C.G.A. §§ 15-11-47, 15-11-48, 15-11-49, 15-11-65, 15-11-67 and 15-11-73;

3. Insert a new provision, § 15-11-48.1, that mirrors the JJDPA language, including its VCO exception; and

4. Amend definitions to ensure other amendments apply exclusively to status offenders, not also to delinquent children.

15-11-1 Construction and purpose

This chapter [on juvenile proceedings] shall be liberally construed to the end:

(1) That children whose well-being is threatened shall be assisted and protected and restored, if possible, as secure law-abiding members of society;

(2) That each child coming within the jurisdiction of the court shall receive, preferably in his or her own home, the care, guidance, and control that will be conducive to the child's welfare and the best interests of the state; and

(3) That when a child is removed from the control of his or her parents the court shall secure for the child care as nearly as possible equivalent to that which his or her parents should have given the child; and

(4) That a child who is alleged or found to have committed a status offense shall be detained in secure juvenile detention or correctional facilities for no longer than allowed under the Juvenile Justice and Delinquency Prevention Act , 42 U.S.C. § 5601 et seq., and corresponding federal regulations, 28 C.F.R. § .31.303.

15-11-2(12) Definitions

(12) "Unruly child" means a child who:

(A) While subject to compulsory school attendance is habitually and without justification truant from school;

(B) Is habitually disobedient of the reasonable and lawful commands of his or her parent, guardian, or other custodian and is ungovernable;

(C) Has committed an offense applicable only to a child;

(D) Without just cause and without the consent of his or her parent or legal custodian deserts his or her home or place abode;

(E) Wanders or loiters about the streets of any city, or in or about any highway or any public place, between the hours of 12:00 Midnight and 5:00 A.M.;

(F) Disobeys the terms of supervision contained in a court order which has been directed to such child, who has been adjudicated unruly; or

(G) Patronizes any bar where alcoholic beverages are being sold, unaccompanied by such child's parents, guardian, or custodian, or possesses alcoholic beverages; and

(H) In any of the foregoing, is in need of supervision, treatment, or rehabilitation.; or

(I) Has committed a delinquent act and is in need of supervision, but not of treatment or rehabilitation.³⁹

15-11-47. Procedure after taking child into custody

(a) Release to parents; delivery to medical facility, intake officer, or court. A person taking a child into custody, with all reasonable speed and without first taking the child elsewhere, shall:

(1) Forthwith release without bond the child to the child's parents, guardian, or other custodian upon their promise to bring the child before the court when requested by the court;

(2) Forthwith deliver the child to a medical facility if the child is believed to suffer from a serious physical condition or illness which requires prompt treatment and, upon delivery, shall promptly contact a juvenile court intake officer. Immediately upon being notified by the person taking a child into custody, the intake officer shall determine if such child should be released, detained, or brought before the court. Prior to an informal detention hearing or committal hearing authorized under Code Sections 17-6-15 and 17-6-16 and Articles 1, 2, and 8 of Chapter 7 of Title 17, the child shall be placed in detention, if necessary, only in such places as are authorized by Code Section 15-11-48;

(3) Bring the child immediately before the juvenile court or promptly contact a juvenile court intake officer.  The intake officer shall determine if the child should be released or detained.  Prior to an informal detention hearing, or to an initial court appearance or hearing pursuant to Code Section 15-11-48.1, the child shall be placed in detention, if necessary, only in such places as are authorized by Code Sections 15-11-48 and 15-11-48.1;⁴⁰

(4) Bring the child who is suspected of committing a delinquent act before the superior court of the county where the delinquent act occurred if the act is an act over which the superior court has exclusive or concurrent jurisdiction as provided in subsection (b) of Code Section 15-11-28; however, pending a commitment hearing authorized under Code Sections 17-6-15 and 17-6-16 and Articles 1, 2, and 8 of Chapter 7 of Title 17 or an indictment, the child shall be returned and placed in detention, if necessary, only in such places as are authorized by Code Section 15-11-48.

. . .

(e) Treatment of unruly child.

(1) With respect to a child suspected of being unruly as defined in paragraph (12) of Code Section 15-11-2 or a child who is in violation of a curfew, a person taking such a child into custody shall not exercise custody over the child except for a period of 12 hours. A child taken into custody may be detained in a holding facility for unruly children as provided for in paragraph (2) of this subsection. If a parent or guardian has not assumed custody of the child at the end of such period or if the child has not been brought before the juvenile court or if an intake officer has not made a detention decision, the child shall be released from custody. In no case shall such a child in custody be detained in a jail.

(2) Counties and municipalities are authorized to establish facilities where a child who is suspected of being unruly or who is in violation of a curfew may be informally detained until the parent or guardian assumes custody of the child. Immediately after a child is brought into such a facility, every effort shall be made to contact the parent or guardian of the child. A child shall not be restrained in a cell or other such place apart from other children unless such child engages in disruptive or unruly behavior while at the holding facility.⁴¹

15-11-48 Place of detention; data on child detained

(e) Allegation of unruliness. A child unruly or alleged to be unruly who has not been released from custody as provided in subsection (e) of code Section 15-11-47 may be detained or placed in shelter care only in the facilities stated in paragraphs (1) and (2) of subsection (a) of this Code section or in a secure juvenile detention facility for a period not to exceed 72 hours; provided, however upon written order of the judge having jurisdiction of the case and upon good cause shown, a child alleged to be unruly may be detained for one additional period not to exceed 48 hours; provided, further, that no child alleged to be or found to be unruly who has not previously been adjudicated unruly may be detained in a secure juvenile detention facility unless such child is alleged to be under the court's jurisdiction as provided in subparagraph (D) of paragraph (12) of Code section 15-11-2 and then shall be detained in that facility only so long as is required to effect the child's return home or to ensure the child's presence at a scheduled court appearance when the child has previously failed to appear for a scheduled court appearance. In the event a child alleged to be unruly comes within the purview of the Interstate Compact on Juvenile and the proper authorities of a demanding state have made an official return request to the proper authorities of this state, the Interstate Compact on Juveniles shall apply to the child.⁴²

15-11-48.1 Detention of unruly child; limitations; valid court order exception

(a) No prior adjudications of unruliness; runaway exception. A child who is alleged to be unruly, but has no prior adjudications of unruliness, shall not be held in a secure juvenile detention facility for any period of time; provided, however, that a child alleged to be unruly in violation of subparagraph (D) of paragraph (12) of Code Section 15-11-2 may be detained to effect the child's return to his or her home or place of abode but for no longer than 24 hours.

(b) Previous adjudications of unruliness. A child who is alleged to be unruly, but who has one or more prior adjudications of unruliness, may be held in a secure juvenile detention facility for up to 24 hours, excluding weekends and legal holidays, prior to an initial court appearance, and for an additional 24 hours, excluding weekends and legal holidays, following an initial court appearance.

(c) Valid court order exception. A child who is alleged to be unruly and to have violated a valid court order may be held in a secure juvenile detention facility beyond the initial 24-hour period of detention, if the court finds at a probable cause hearing held within the initial 24-hour period that there is probable cause to believe that the child violated the court order and that:

(1) The child has a record of willful failure to appear at juvenile court proceedings; or

(2) The child has a record of violent conduct resulting in physical injury to self or others; or

(3) The child has a record of leaving a court-ordered placement, other than secure detention, without permission.⁴³

In such case, the court may hold the child pending a subsequent hearing to determine if the child violated the court order (the "violation hearing"), but in no event should the child's total detention prior to the violation hearing exceed 72 hours, excluding weekends and legal holidays.

(d) Valid court order, elements. Before detaining a child pursuant to subsection (c) of this Code section, a judge presiding over a probable cause or violation hearing must determine that all of the elements of a valid court order exist. As used in this section, a "valid court order" is any order issued by a court of competent jurisdiction regarding a child who has been brought before the court and afforded due process, which sets forth specific conditions of behavior for the child and consequences of violations of such conditions. The order must have been provided in writing to the child and the child's attorney or legal guardian.

(e) Due process rights. Before detaining a child pursuant to subsection (c) of this Code section, the judge presiding over the probable cause and violation hearing shall determine that the child received the following due process rights: the right to have the charges against him served upon him in writing at a reasonable time before the hearing; the right to an explanation of the nature and consequences of the hearing; the right to legal counsel or appointed legal counsel, if the child is indigent; the right to confront and present witnesses; the right to a transcript or record of the hearing; and the right of appeal to an appropriate court.

(f) Independent agency report. Before ordering an unruly child into a secure juvenile detention facility, the judge presiding over a violation hearing or a dispositional hearing pursuant to Code Section 15-11-65(b) shall obtain and review a written report, prepared by an independent public agency (other than the court or law enforcement) that reviews the child's behavior and the circumstances under which the child was brought before the court and made subject to the valid court order; addresses the reasons for the child's behavior; and determines whether all non-secure disposition options have been exhausted or are clearly inappropriate.

(g)  Limitations on placement in shelter care. A child who is unruly or alleged to be unruly may placed in shelter care only in the facilities stated in paragraphs (1) and (2) of subsection (a) of Code Section 15-11-48 for a period not to exceed 72 hours; provided, however, upon written order of the judge having jurisdiction of the case and upon good cause shown, the child may be held in shelter care for one additional period not to exceed 48 hours.⁴⁴

(h) Interstate Compact on Juveniles. In the event a child alleged to be unruly comes within the purview of the Interstate Compact on Juveniles and the proper authorities of a demanding state have made an official return request to the proper authorities of this state, the Interstate Compact on Juveniles shall apply to the child.⁴⁵

15-11-49 Release from detention or shelter care; hearing

(a) If a child is brought before the court or delivered to a detention or shelter care facility designated by the court, the intake or other authorized officer of the court shall immediately make an investigation and release the child unless it appears that the child's detention or shelter care is warranted or required under Code Section 15-11-46.

(b) If a child is so released and the case is to be prosecuted further other than by informal adjustment, a petition under Code Section 15-11-38.1 shall be made and presented to the court within 30 days.

(c)(1) If a child alleged to be delinquent is not so released, an informal detention hearing shall be held promptly and not later than 72 hours after the child is placed in detention or shelter care to determine whether detention or shelter care of the child is required under Code Section 15-11-46, provided that, if the 72 hour time period expires on a Saturday, Sunday, or legal holiday, the hearing shall be held on the next day which is not a Saturday, Sunday, or legal holiday.

(2) If a child alleged to be unruly is not so released, Code Section 15-11-48.1 shall apply, provided, however, that if the child is held in shelter care, the informal detention hearing shall be held promptly and not later than 72 hours after the child is placed in detention or shelter care as provided in subsection (g) of Code Section 15-11-48.1 (e) of Code Section 15-11-48.⁴⁶

(3) If a child alleged to be deprived is not so released, the informal detention hearing shall be held promptly and not later than 72 hours after the child is placed in shelter care as provided in subsection (f) of Code Section 15-11-48, provided that, if the 72 hour time period expires on a Saturday, Sunday, or legal holiday, the hearing shall be held on the next day which is not a Saturday, Sunday, or legal holiday.

. . .

(e) If the child is not so released, a petition under Code Section 15-11- 38.1 shall be made and presented to the court within 72 hours of the detention hearing; provided, however, that,

(1) if the child not so released is alleged to be an unruly child, a petition under Code Section 15-11-38.1 shall be made and presented to the court within 72 hours of the detention hearing or violation hearing, under Code Section 15-11-48.1. ⁴⁷

(2) if the child not so released is alleged to be a deprived child, a petition under Code Section 15-11-38.1 shall be made and presented to the court within five days of the detention hearing.

15-11-65 Dispositional hearing for delinquent or unruly child; evidence; continuances; scheduling

(a) Dispositional hearing for delinquent or unruly child. If the court finds proof beyond a reasonable doubt that a child committed the acts of which he or she is alleged to be delinquent or unruly, it shall proceed immediately or at a later time to conduct a dispositional hearing for the purpose of hearing evidence as to whether the child is in need of treatment, rehabilitation, or supervision and shall make and file its findings thereon. If the court finds that the allegations of delinquency or unruly conduct have not been established, it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in relation to the allegations. If the child is to be held in custody at a detention facility between the adjudicatory hearing and the dispositional hearing, the court shall conduct the dispositional hearing within 30 days of the adjudicatory hearing unless the court makes and files written findings of fact explaining the need for the delay. In the absence of evidence to the contrary, evidence sufficient to warrant a finding that acts have been committed which constitute a felony is also sufficient to sustain a finding that the child is in need of treatment or rehabilitation. If the court finds that the child is not in need of treatment, rehabilitation, or supervision, it shall dismiss the proceeding and discharge the child from any detention or other restriction theretofore ordered.⁴⁸

(b) Dispositional hearing for unruly child. If the court finds proof beyond a reasonable doubt that a child committed the acts of which he or she is alleged to be unruly, it shall proceed immediately or at a later time to conduct a dispositional hearing for the purpose of hearing evidence as to whether the child is in need of treatment, rehabilitation, or supervision and shall make and file its findings thereon. If the court finds that the allegations of unruly conduct have not been established, it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in relation to the allegations. If the child is to be held in custody between the adjudicatory hearing and the dispositional hearing in a licensed foster home, a home approved by the court, or a facility operated by a licensed child welfare agency, the court shall conduct the dispositional hearing within 30 days of the adjudicatory hearing unless the court makes and files written findings of fact explaining the need for the delay.

15-11-67 Disposition of unruly child

(a) If the child is found to be unruly, the court may make any disposition authorized for a delinquent child except that, if commitment to the Department of Juvenile Justice is ordered or the court orders the child placed in any secure detention or correction facility, the court shall first:

(1) find that the child is not amendable to treatment or rehabilitation pursuant to paragraph (1) or, (2), or (3) of subsection (a) of code Section 15-11-66;

(2) find that the child violated a valid court order and received all applicable due process rights, pursuant to Code Section 15-11-48.1; and

(3) obtain and review an independent agency report that concludes that

non-secure placement options have been exhausted or are clearly inappropriate, pursuant to subsection (g) of Code Section 15-11-48.1.⁴⁹

§ 15-11-73. Juvenile traffic offenses

(e) Procedure. The summons, notice to appear, or other designation of a citation accusing a child of committing a juvenile traffic offense constitutes the commencement of the proceedings in the court of the county in which the alleged violation occurred and serves in place of a summons and petition under this article. These cases shall be filed and heard separately from other proceedings of the court. If the child is taken into custody on the charge, Code Sections 15-11-46, 15-11-48.1 and 15-11-49 shall apply. If the child is, or after commencement of the proceedings becomes, a resident of another county of this state, the court in the county where the alleged traffic offense occurred may retain jurisdiction over the entire case.⁵⁰

2. Remove penalties for status offenses

Another way to ensure compliance with JJDPA's mandate to deinstitutionalize status offenders is to remove sanctions and penalties for status offenses. Rather than be placed in secure detention facilities, troubled youth who are charged with status offenses, such as truancy, running away from home or substance abuse, would be diverted into treatment and rehabilitation programs, where they would receive the services that they need. This is the kind of delinquency prevention program that the JJDPA envisions and that would ensure Georgia's continued federal funding.⁵¹

Status offenders engage in behaviors that would not be illegal if done by an adult; therefore, status offenders are not committing crimes per se, but rather are engaging in behaviors that may be directly related to mental health issues and interpersonal difficulties.⁵² Studies demonstrate that status offenders are often victims instead of offenders.⁵³ Further, detention and removal from the home often results in the child having greater problems reintegrating back into the family system.⁵⁴ The most effective treatment interventions for at-risk youth are holistic, intensive, in-home, and family focused.⁵⁵ Not least, court intervention stigmatizes youth for having committed relatively petty acts that can be best handled outside the formal court system.⁵⁶

Recommendations for Services and Supplements to Graduated Sanctions

Georgia law already permits the use of graduated alternative sanctions, in lieu of detention, as a possible method of disposition under O.C.G.A. § 15-11-66(b)(2). This paper recommends several enhancements to this option:

• First, a comprehensive assessment of the child at the entry point of the juvenile justice system should be implemented. A brief screening measure, such as the Massachusetts Youth Screening Instrument (MAYSI-2), should be integrated to identify youth with potential mental, emotional, or behavioral problems. ⁵⁷

• Second, there should be an intermediary system that allows families to access needed services without utilizing the court system.

• Third, if status offense cases are referred to juvenile court, the court should divert these youth away from the formal justice system to other social service agencies for assistance.

• Fourth, the court should place conditions on the parents, in addition to conditions of probation on the child.⁵⁸

Conclusion

Under federal law, Georgia must achieve compliance with each of the JJDPA's four mandates, including the mandate to deinstitutionalize status offenders. Pursuant to the JJDPA, status offenders may only be detained in a secure juvenile detention facility for a maximum of 48 hours—24 hours before an initial hearing and 24 hours afterward. If a child has violated a valid court order, the JJDPA allows a court to hold him 72 hours under certain conditions, as well as order him into a secure long-term placement as a final disposition. Georgia law contains no 2-day or 3-day limits on detention; instead, a repeat status offender or runaway child in Georgia may stay in a secure juvenile detention facility for 46 days before he receives treatment, rehabilitation or a final disposition of any kind, longer if there are court delays. He may then be committed into a secure long-term placement as a final disposition.

The irreconcilable differences between Georgia law and JJDPA have made Georgia's juvenile justice practice inconsistent and unreliable. As a result, the children who need treatment or rehabilitative services may not receive them, putting them at risk of becoming further inured in the juvenile justice system. In addition, Georgia's compliance with JJDPA's deinstitutionalization mandate is never assured, and Georgia's federal dollars are potentially at risk, as well.

There are two possible legislative solutions: (1) amend the Georgia Code to mirror the JJDPA language, as other states have done or (2) remove the penalties for status offenses so that status offenders are not subject to detention. Either approach would ensure Georgia's continued receipt of federal money under JJDPA's deinstitutionalization mandate and improve Georgia's response to children in need, not of detention, but of community services, treatment, and rehabilitation.

Acknowledgements

The Barton Child Law and Policy Clinic would like to thank all of those who gave their time, insight, and work to this paper. In particular, we would like to thank:

Lead Authors: Darlene Lynch, Randee J. Waldman, and Karen Worthington

Editors: Melanie Mendenhall and Elizabeth Reimels

Contributors: Nicole A. Corley, Robin Nash, Elizabeth Rose, and Kirsten Widner

Reviewers: Judge Steve Teske, Judge Peggy Walker, Linda Pace, and Trish McCann

Footnotes

PDF Version for Printing

---

Home ^. About ^. News ^. Activities ^. Resources
The Barton Child Law and Policy Clinic, info@ChildWelfare.net
Emory University School of Law, Gambrell Hall, Atlanta, GA 30322, (404) 727-6664.