After attending a few of the Juvenile Detention Alternatives Initiative (JDAI) trainings, it has become clear that some of the stakeholders do not have a clear understanding of detention procedures, which makes the prospect of developing detention alternatives a leap across a vast cannon. Detention hearings involve the judge (a member of the judicial branch of government) and a probation officer (an employee of the judicial branch of government) in a hearing with the parents, guardians, or custodians and the juvenile to determine whether the juvenile is detained or remains in the community.
The State should be the entity that puts forth the assertion that there is probable cause that the child committed a delinquent act — through affidavit or testimony by law enforcement officers — and that the child must be detained to protect the child or the community, or to assure that child’s future appearance in court proceedings. I.C. 31-37-6-6. “The State, as representing society at large, springs from a moral necessity…. The State is not to be guided by expediency, nor by the merely external purpose of society. It has an existence of its own to maintain, a conscience of its own to assert, moral principles to vindicate. An act of delinquency is a wrong against the state for which the state has provided corrective as well as protective remedies…. The state is not designated as a party plaintiff in the proceedings, yet it is the state speaking to assert its paramount interest in the protection of society and infants even though it is not named in the petition.” State ex rel. Johnson v. White Circuit Court, 225 Ind. 602, 77 N.E.2d 298 (1948). In juvenile court, the State is represented by the prosecuting attorney. I.C. 31-9-2-99. The prosecuting attorneys and law enforcement officers are members of the executive branch of government.
Ideally, a defense attorney is present at each detention hearing to help the juvenile understand the court proceedings, unless there is a rare circumstance in which the child has knowingly waived the right to counsel. It is hoped that Indiana Criminal Procedure Rule 25 will increase the number of defense attorneys attending detention hearings when it goes into effect on January 1, 2015.
Finally, reflect back on a troubling moment in Indiana juvenile court history. In 2004, then-Judge James Payne of the Marion County Juvenile Court, received a private caution from the Indiana Supreme Court’s Commission on Judicial Qualifications for holding a detention hearing and ordering that a child be detained on a court holiday without the presence of a prosecutor, defense attorney, or other key court personnel. See this Indiana Law Blog summary with a link to the archived Indianapolis Star article.