POLICY ON JAILING OF SEVENTEEN-YEAR-OLDS AS DISPOSITION OR FOR VIOLATION OF PROBATION

The probate court, like the circuit court, is a constitutional court in Michigan. Unlike the circuit court, the probate court does not have general jurisdiction of all matters not prohibited to it by law. While the probate court has original jurisdiction in all cases of juvenile delinquents and dependents, except as otherwise provided by law, the jurisdiction, powers, and duties of the probate court are only those provided by law.

Prior to June 16, 1972, MCL 712A.18(1)(f) provided that the probate court could commit a delinquent between 17 and 19 years of age to the county jail for not more than 30 days or to the Michigan Corrections Commission for a period of time not exceeding the delinquent's 21st birthday. The authority of the probate judge to order such incarceration was repealed by PA 175 of 1972.

Therefore, under the rules of statutory construction, if the Legislature repeals a law which granted certain powers to a court and the court is one of statutory jurisdiction, the court henceforth lacks authority to exercise that power. As a result, probate judges may no longer use jail or commitment to the Department of Corrections for delinquents 17 and older for the purpose of disposition or as a sanction of violation of probation, although they may sentence such delinquents to jail for up to 30 days for contempt of court under MCL 712A.26.

POLICY ON JAILING OF SEVENTEEN-YEAR-OLDS FOR CONTEMPT

The Michigan Committee on Juvenile Justice believes that if a 17 year-old non-status delinquent commits a contempt of court after reaching age 17, he or she may be placed in jail for contempt without violating the jail removal mandate. The Michigan Committee on Juvenile Justice also believes this policy is consistent with the position of the Office of Juvenile Justice and Delinquency Prevention as stated by Deputy Administrator John J. Wilson on January 11, 1995, at the Committee on Juvenile Justice meeting.

SECURE DETENTION OF STATUS OFFENDERS AND THE "VALID COURT ORDER" EXCEPTION HISTORY

One of the mandates of the federal Juvenile Justice and Delinquency Prevention Act since 1974 has been the "deinstitutionalization of status offenders" or "D.S.O." mandate. The theory behind this mandate is that juveniles who have not committed a criminal-type offense should not be placed in secure facilities. In 1980, the federal act was amended to say that juveniles who had violated a "valid court order" could be placed in secure facilities without violating the mandate.

Federal regulations pertaining to the "valid court order" exception are found at 28 CFR 31.303 (f)(3). The regulations set forth preconditions which must be met prior to allowable "secure incarceration". 28 CFR 31.303 (f)(3). The regulations were last amended in March, 1995.

ISSUE

Congress, by enacting the "valid court order" exception, recognized that courts needed to be able to control juveniles who might otherwise be considered status offenders. The federal regulations, by specifying detailed requirements before a court order can be considered "valid", and by adding federal requirements to existing state court procedures, have severely limited the circumstances under which a juvenile who is charged with a violation or who is found to have violated a state court order can be securely detained without being "counted" as a violation of the D.S.O. mandate. Assuming that the Administrator attempted to promulgate regulations consistent with the statute, may 28 CFR 31.303(f)(3) be interpreted to allow state courts using lawful state procedures to control juveniles under court jurisdiction without violating the D.S.O.?

DISCUSSION

The most simplistic approach possible would be to say that in all cases in which a juvenile is charged with violation of a court order and secure detention is sought, the procedure set forth in the regulation should be used. This approach overlooks the wide variety of circumstances under which secure detention may be requested. In order to determine how this regulation applies to Michigan juveniles, it is appropriate to review applicable state law.

No child in Michigan may be held in secure detention without court authorization. Michigan law provides that no runaway, incorrigible child, child charged with school incorrigibility, or child under concurrent jurisdiction may be placed in secure detention unless he/she is also under court jurisdiction for a delinquent offense. MCL 712A.15(3); MSA 27.3178[598.15(3)]. Therefore, as a matter of state law, juveniles may not be securely detained for status offenses alone. Children charged with violations of court orders for whom secure detention is sought generally fall into one of the following categories:

• Juveniles charged with contempt of court.
• Juveniles who are awaiting placements that may not be immediately available.
• Juveniles who have deserted lawful placements and need to be returned to those placements.

Each of the categories presents a slightly different issue.

1. Juveniles charged with contempt.
   Every court has the inherent authority to enforce its own orders by use of the contempt sanction. If a juvenile under the age of 17 is found to have violated a court order and the court is contemplating secure detention as a disposition for that violation, it is clear that the federal procedure must be used or the child will count as a violation of the D.S.O. mandate. Children 17 years of age or older are a special case and this Committee has addressed their circumstances in a separate position paper.
2. Juveniles who are found to have violated court dispositional orders and are awaiting placement.
   In essence, these juveniles are awaiting modification of the disposition on the original charge. The court has the authority to securely detain a juvenile who is pending dispositional placement. MCL 712A.18(d); MSA 27.3178[598.18(d)]. Modification of the original disposition is permitted by MCL 712.19(1); MSA 27.3178[598.19(1)]; and MCR 5.944(E). Any secure detention involved is incidental to the adjustment of the original disposition, rather than a new disposition imposed as a result of violating the court's order. Under these circumstances, the federal regulation should not apply unless the original charge was a status offense. In all other cases, the juvenile has already been adjudicated on a criminal-type offense. Any other interpretation imposes undue (and unfounded) federal mandates on the court's ongoing authority to review and modify dispositions in juvenile cases.
3. Juveniles who have deserted lawful placements and are being returned.
   The federal regulatory procedure does not apply unless the juvenile is charged with contempt of court and secure detention is being sought as a disposition of the contempt charge. In any other circumstance, there is no "accusation" of violation of the court order and no "violating hearing". Any secure detention is incidental to the original disposition. The Michigan Juvenile Court rules are currently in the process of being reviewed, and a change has been suggested to clarify the court's authority to detain without additional charges for a limited period in order to accomplish a return to placement.

MICHIGAN COMMITTEE ON JUVENILE JUSTICE INTERPRETATION "VALID COURT ORDER" EXCEPTION

Juveniles charged with violating a valid court order may be securely detained if the court complies with Michigan statues and court rules and utilizes the procedure set forth in 28 CFR 31.303(f)(3). Compliance with 28(f)(3) is not required for post-adjudication secure detention for juveniles awaiting placement or for juveniles being returned to placement from which they have wanted, provided the original adjudication was for a criminal-type offense.