Mary M. Downey
Charleston, West Virginia
Attorney for Facilities Review Panel
Senior Assistant Attorney General
Charleston, West Virginia
Attorney for Department of Human Services
George M. Scott
Spencer, West Virginia
Attorney for the Respondent Judge Gustke
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. "Young children should not be placed in secure
detention except in the most extraordinary cases." Syllabus point
5, State ex rel. M.C.H. v. Kinder, ___ W.Va. ___, 317 S.E.2d 150
2. The juvenile detention standards adopted by this
Court are in accord with our State law as set forth in W.Va. Code
§ 49-1-1 et seq. (1990) and State ex rel. M.C.H. v. Kinder, ___
W.Va. ___, 317 S.E.2d 150 (1984), and to be implemented within
sixty days from the date of this opinion.
3. Before any juvenile can be sent to a detention
facility, the arresting officer or the detention hearing officer
must telephone the detention facility to determine whether there is
a vacancy before the juvenile can be transported to the juvenile
4. No facility can accept any juveniles beyond their
licensed capacity and must immediately report any attempt to force
them to do so to the Department of Human Services and the Juvenile
5. A juvenile must remain in detention no longer than
thirty days awaiting a dispositional hearing.
6. Following the dispositional hearing, a juvenile shall not remain in detention longer than fourteen days before moving the juvenile into an appropriate placement. Thus, the circuit courts must move swiftly and efficiently to avoid overcrowding.
7. In the event overcrowding occurs, the courts must
develop alternate methods of detention, such as in-home detention,
electronic monitoring, and emergency shelters.
8. Within ten days after the end of each month, each detention facility must file a report with the Department of Human Services and the Juvenile Justice Committee which lists each new child detained, the reason and charge, and the date the child enters and leaves the facility, including explanations of any interim absences. Also required is a listing of the number of children detained on each day of the month. The report form is to be prepared by the Department of Human Services.
This case is before the Court on the response of the
Special Master to our November 17, 1989, order, in which we
authorized the Honorable Larry Starcher, as Special Master, to
investigate the need for standardized juvenile detention
guidelines, to review the detention centers and relevant statistics
statewide, and to determine the need to rotate the assignment of
juvenile cases among the circuit judges in each circuit.See footnote 1
This case was initiated by a petition for a writ of
mandamus brought in 1989 by the Facilities Review Panel and Taunja
Willis Miller, Commissioner of the West Virginia Department of
Human Services, which dealt with the detention of juveniles prior
to adjudicatory hearings in Wood County, West Virginia.See footnote 2
On November 17, 1989, we issued an order appointing Larry Starcher, Judge of the Seventeenth Judicial Circuit, to act as Special Master to determine whether standardized juvenile detention guidelines were needed and to review the situation at the West Central Regional Juvenile Detention Center (WCRJDC) and other detention facilities "to determine the danger overcrowding poses to children and the resulting effect the overcrowding has on the services normally offered." In addition, Judge Starcher was to investigate the need for cases to be rotated, regardless of type, among the circuit judges of Wood County.
Judge Starcher's report was received by this Court on
September 4, 1990. We compliment Judge Starcher and his assistants
on an excellent and thorough report.See footnote 3 Also filed is the report of
private investigator, Warren Stedman, who investigated the WCRJDC
at the request of the respondent, Judge Gustke. Judge Starcher's
report makes it clear that juvenile detention standards exist in
this State. The issue now before us, however, is whether those
standards are sufficient or if the American Bar Association
Juvenile Justice Standards should be adopted.
At the outset of his report, Judge Starcher emphasizes
the legislative intent to prohibit detaining minor children in
secure custody except in very specific circumstances.See footnote 4 West
Virginia Code § 49-5A-2 (1986) states that:
It shall be the duty of the judge or referee to avoid incarceration of such child in any jail. Unless the circumstances of the case otherwise require, taking into account the welfare of the child as well as the interest of society, such child shall be released forthwith into the custody of his parent or parents, relative, custodian or other responsible adult or agency.
Similarly, W.Va. Code § 49-5-8(d) provides that:
The sole mandatory issue at the detention
hearing shall be whether the child shall be
detained pending further court proceedings.
The court shall, if advisable, and if the
health, safety and welfare of the child will
not be endangered thereby, release the child
on recognizance to his parents, custodians or
an appropriate agency; however, if warranted,
the court may require bail . . . .
This Court provided further guidance on the issue of
juvenile detention in State ex rel. M.C.H. v. Kinder, ___ W.Va.
___, 317 S.E.2d 150 (1984). "Young children should not be placed
in secure detention except in the most extraordinary cases." Id.
at syl. pt. 5. In Kinder, the Court set forth seven relevant
factors to be taken into account when preadjudication detention was
being considered. See syl. pt. 4. The focus of the seven factors
is the interest of society and the welfare of the child.
In making their report, Judge Starcher and his assistants not only reviewed the statute and case law, but also interviewed personnel involved in the various aspects of juvenile detention and reviewed statistics reported by the various detention centers. In his findings of fact, Judge Starcher reported that "the vast majority of personnel interviewed believe that there should be more of an emphasis on releasing versus detaining at the detention hearing" and that they "believe that it would be better to inappropriately release than inappropriately detain a youth." Judge Starcher concluded that the "failure to have mandatory rotation of juvenile case assignments is not a primary factor in the overcrowding of juvenile detention facilities and that the issue of whether "West Virginia needs formalized detention standards may well be only a matter of preference. Detention problems can be resolved with or without such standards."
The two options set forth by the Special Master for
consideration by this Court are substantially the same. The major
difference is that the first option provides that the current
detention standards -- those found in W.Va. Code § 49-1-1 et seq.
and State v. Kinder, discussed supra -- be maintained while the
second option recommends the adoption of statewide standards, such
as those found in the ABA Juvenile Justice Standards. With the
implementation of tighter detention standards, it is hoped that the
detention population would be significantly reduced. However,
since the possibility of overcrowding remains even with the
adoption of new standards, many of the protective measures found in
Option One are again recommended in Option Two.
The protective measures found in the report include
requiring the hearing officer, judge, or arresting officer to call
ahead to the detention center to determine if there is a vacancy.
In addition, each circuit should be required to develop a back-up
program to assist detention hearing officers in the event the
detention centers are at maximum capacity. Other alternatives to
secure detention should be developed, such as in-home detention,
house arrest, electronic monitoring, and emergency shelters. The
detention center must have the authority to refuse to house a
juvenile if the facility is at maximum capacity and must report any
infraction of overcrowding to the Juvenile Justice Committee and
the Department of Human Services. Finally, following an
adjudicatory hearing, a juvenile shall not remain in detention
longer than thirty days awaiting a dispositional hearing, and
following a dispositional hearing, the juvenile shall remain in
detention no longer than fourteen days before being moved into an
appropriate placement. Again, this time limitation needs to be
enforced and accurate records maintained.
Judge Starcher points out that if the detention criteria
are adhered to, there should be no need for a rotating judge within
a circuit, noting that the complexity of juvenile case assignments
makes a multi-judge system unworkable in many cases. Finally, the
Special Master recommends that accurate and complete detention
facility status data be maintained through standardized monthly
reports to the Department of Human Services and the Juvenile
Justice Committee. The status report, which is to be created by
the Department of Human Services, shall be filed monthly as new
cases are received and must include each new detention, the
reason(s) detained, the charge, the date in, and the date out.
This report will be crucial in monitoring each facility and
determining if overcrowding exists due to lack of adequate space or
as a result of a back-up in the system.
After reviewing both options and the attached reports,
this Court concludes that there is no need to provide for a
rotating judge system if detention standards similar to those
recommended by the American Bar Association and the Institute for
Judicial Administration are adopted. However, the recommended ABA
standards must be modified to fit the specialized needs of our
juvenile system. Therefore, we adopt juvenile detention standards,
set forth in Appendices A, A.1, A.2, and A.3, which have been
agreed upon by the Kanawha County Prosecutor, the Facilities Review
Board, and the Department of Health and Human Resources. We
believe the use of these guidelines will discourage the vague and
often subjective method of deciding whether to detain a juvenile.
Moreover, the juvenile detention standards adopted in this opinion
are in accord with our State law as set forth in W.Va. Code § 49-1-1 et seq. (1990) and State v. Kinder, ___ W.Va. ___, 317 S.E.2d 150
Equally important are the accompanying recommendations,
discussed supra, which we adopt along with the Juvenile Detention
1. Before any juvenile can be sent to a detention facility, the arresting officer or the detention hearing officer must telephone the detention facility to determine whether there is a vacancy before the juvenile can be transported to that facility.
2. No facility can accept any juveniles
beyond their licensed capacity and must
immediately report any attempt to force
them to do so to the Department of Human
Services and the Juvenile Justice
3. A juvenile must remain in detention no
longer than thirty days awaiting a
4. Following the dispositional hearing, a
juvenile shall not remain in detention
longer than fourteen days before moving
the juvenile into an appropriate
placement. Thus, the circuit courts must
move swiftly and efficiently to avoid
5. In the event overcrowding occurs, the
courts must develop alternate methods of
detention, such as in-home detention,
electronic monitoring, and emergency
6. Within ten days after the end of each
month, each detention facility must file a
report with the Department of Human
Services and the Juvenile Justice
Committee which lists each new juvenile
detained, the reason and charge, and the
date the child enters and leaves the
facility, including explanations of any
interim absences. Also required is a
listing of the number of children detained
on each day of the month. The report form
is to be prepared by the Department of
We are confident that with time and effort the problem of
overcrowding can be relieved. All the parties involved in this
case, from the judges to the probation workers, appear deeply
concerned with and committed to the juveniles entrusted to their
care. We ask that they work together in implementing these new
criteria and guidelines to better serve the children of this State.
However, it is important to note that the Legislature has a part to
play in this situation. Although we believe the number of
facilities is adequate today, many of the structures need updating
and the services improved. Moreover, we cannot discount the
possibility that in the future, additional space and facilities
will be needed. The welfare of our children is a high priority for
this State, and the Legislature would be wise to plan accordingly.
However, the Legislature is not alone in its
responsibilities. The Department of Human Services is duty bound
to aggressively seek the funding from the Legislature necessary to
fulfill those responsibilities. The Department's statutory
obligations, found in W.Va. Code § 49-5-16a, may not be transferred
to the judicial and legislative branches of government. Proper
management of the facilities is an essential element of the
Accordingly, we grant the writ as moulded, adopt the
Juvenile Detention Standards set forth in Appendices A, A.1, A.2,
and A.3, and order that they be implemented within sixty days.
Further, the six additional elements set forth in this opinion,
including the report form which is to be prepared by the Department
of Human Services, are also adopted and are to be implemented and
in effect sixty days from the date of this opinion.
STANDARDS RELATING TO
Interim Status: Secure Detention of Accused Juvenile Offenders
Between Arrest and Disposition
Guidelines for status decision.
A. Mandatory release. -- The intake official should release the
accused juvenile unless the juvenile:
1. Is charged with a criminal-type delinquent behavior which
in the case of an adult would be punishable by a sentence
of one year or more, and which if proven could result in
commitment to a security institution, and one or more of
the following additional factors is present:
a. The crime charged is a category one (Appendix A.1)
b. The crime charged is a category two (Appendix A.1)
juvenile offense and there is a judicial finding that
the juvenile presents a danger to the public if not
securely detained, pursuant to an immediate full
detention hearing in which the juvenile is represented
by an attorney.
c. The crime charged is a category two or three
(Appendices A.1 and A.2) juvenile offense and the
juvenile is an escapee from detention or any commitment
setting ordered pursuant to W.Va. Code, §49-5-1 et seq;
or the juvenile has a recent record of willful failure
to appear at juvenile court proceedings and no measure
short of secure detention can be imposed to reasonably
d. The juvenile is waiting adjudication or disposition for
an offense which would be a felony under criminal
jurisdiction or a category one, two, or three offense
and is charged with committing another offense during
the interim period which would be a felony or a
category one, two, or three offense. Another less
restrictive means of supervising the juvenile such as
electronic monitoring, home detention, or shelter care
must have been tried and failed.
e. The juvenile is awaiting adjudication or disposition for an offense which would be a felony under criminal jurisdiction or a category one, two, or three offense
and is released on bond conditions but is found by a
judicial authority to have committed a material
violation of bond as defined in Appendix A.3 of these
standards. Another less restrictive means of
supervising the juvenile, such as electronic
monitoring, home detention, or shelter care must have
been tried and failed.
2. The juvenile has been verified to be a fugitive from
another jurisdiction, and an official of which has formally
requested that the juvenile be placed in detention.
3. Release may be upon bond conditions set by judicial
B. Mandatory detention. -- A juvenile who is excluded from
mandatory release under subsection A. is not, pro tanto, to be
automatically detained. No category of alleged conduct in and
of itself may justify a failure to exercise discretion to
release in consideration of the needs of the juvenile and the
C. Discretionary situations.
1. Release vs. detention. In every situation in which the
release of an arrested juvenile is not mandatory, the
intake official should first consider and determine whether
the juvenile qualifies for an available diversion program,
or whether any form of control short of detention is
available to reasonably reduce the risk of flight or
misconduct. The official should explicitly state in
writing the reasons for rejecting each of these forms of
2. Unconditional vs. conditional or supervised release. In
order to minimize the imposition of release conditions on
persons who would appear in court without them, and present
no substantial risk in the interim, each jurisdiction
should develop guidelines for the use of various forms of
release based upon the resources and programs available,
and analysis of the effectiveness of each form of release.
3. Secure vs. nonsecure detention. The intake official should
consider nonsecure detention alternatives prior to
committing a juvenile to a secure detention facility.
D. Protective detention.
1. Placement in a nonsecure detention facility solely for the protection of an accused juvenile should be permitted only upon the voluntary written request of the juvenile in
circumstances that present an immediate threat of serious
bodily harm to the juvenile if released.
2. In reaching this decision, or in reviewing a protective
custody decision made by the arresting officer, the intake
official should first consider all less restrictive
alternatives, and all reasonably ascertainable factors
relevant to the likelihood and immediacy of serious bodily
harm resulting from interim release or control.
E. Threatening Witnesses. -- One additional ground for detention is a determination by a judicial authority that there exists a substantial probability of danger to witnesses should the applicant be granted bail.
Commitment setting. Any out-of-home setting in which a juvenile is
placed pursuant to order of a judicial authority under W.Va.
Code, §49-5-1 et seq.
Control. A restricted or regulated nondetention interim status,
including release on conditions or under supervision.
Detention. Placement during the interim period of an accused
juvenile in a home or facility other than that of a parent,
legal guardian, or relative, including facilities commonly
called "detention," "shelter care," "training school,"
"receiving home," "group home," "foster care," and "temporary
The implementation of a court order of
A. release based upon a finding that the juvenile is not guilty of committing the offense charged; or
B. supervision, punishment, treatment, or correction based upon a finding that the juvenile is guilty of committing the offense charged.
Interim period. The interval between the arrest or summons of an
accused juvenile charged with a criminal offense and the
implementation of a final judicial disposition. The term
"interim" is used as an adjective referring to this interval,
e.g., "interim status," "interim liberty," and "interim
Judicial authority. An official statutorily designated within a
local juvenile justice system to conduct hearings on juvenile
delinquency matters; circuit court judges, juvenile referees,
and any magistrate performing in the absence of a juvenile
Material violation of bond. A violation of a court ordered release
condition in which the juvenile is found by the court to pose
a risk to community safety if not detained, including but not
limited to charges of criminal-type conduct, a positive drug
screen when the juvenile has been charged or adjudicated upon
drug-related offense(s), or involvement with other persons
prohibited by the court in consideration of public safety or
judicial process; excluding status offense-type behavior
including but not limited to violations related to school
attendance, curfew, or alleged incorrigible behavior.
Nonsecure detention facility. A detention facility that is open in
nature and designed to allow maximum participation by the
accused juvenile in the community and its resources. It is
intended primarily to minimize psychological hardships on an
accused juvenile offender who is held out-of-home rather than
to restrict the freedom of the juvenile. These facilities
include, but are not limited to:
A. single family foster homes or temporary boarding homes;
B. group homes with a resident staff, which may or may not specialize in a particular problem area, such as drug abuse, alcohol abuse, etc.; and
C. facilities used for the housing of neglected or abused juveniles.
Any of the following:
A. the juvenile's natural parents, stepparents, or adopted
parents, unless their parental rights have been
B. if the juvenile is a ward of any person other than his or her parent, the guardian of the juvenile;
C. if the juvenile is in the custody of some person other than his or her parent whose knowledge of participation in the proceedings would be appropriate, the juvenile's custodian; and
D. separated and divorced parents, even if deprived by judicial decree of the respondent juvenile's custody.
Release. The unconditional and unrestricted interim liberty of a
juvenile, limited only by the juvenile's promise to appear at
judicial proceedings as required. It is sometimes referred to
as "release on own recognizance."
Release on condition. The release of an accused juvenile under
written requirements that specify the terms of interim liberty,
such as living at home, reporting periodically to a court
officer, or refraining from contact with named witnesses.
Release under supervision. The release of an accused juvenile to
an individual or organization that agrees in writing to assume
the responsibility for directing, managing, or overseeing the
activities of the juvenile during the interim period.
Secure detention facility. A facility characterized by physically
restrictive construction and procedures that are intended to
prevent an accused juvenile who is placed there from departing
Security institution. A commitment setting in which juveniles
placed may be restricted from normalized community involvement
by use of bars, fences, locked rooms, or physical restraint.
Status decision. A decision made by an official that results in the interim release, control, or detention of an arrested juvenile. In the adult criminal process, it is often referred to as the bail decision.
Footnote: 1This opinion is filed pursuant to a petition for rehearing granted on July 25, 1991. The opinion is modified to include Appendices A, A.1, A.2, and A.3.
Footnote: 2The petitioners asked that this Court do the following: (1) Adopt the juvenile justice standards developed by the American Bar Association and the Institute for Judicial Administration; (2) require the respondent, Circuit Clerk Juanita Coe, to rotate juvenile cases randomly among the three circuit judges presiding in Wood County; (3) require the respondent, Circuit Judge Arthur Gustke, to cooperate with the West Virginia Department of Human Services in establishing guidelines for an in-home detention program; (4) require the respondent, Judge Gustke, to arrange for utilization of the electronic monitoring systems for juveniles and provide information about the monitoring system to the Department of Human Services and the Director of the West Central Regional Juvenile Detention Center (WCRJDC) in Wood County; and (5) require that the respondent, Judge Gustke, refrain from committing additional children to the WCRJDC when the maximum capacity of ten children had been reached.
Footnote: 3We acknowledge the contributions of Marcia Pops and James Kane, the two probation officers who worked with Judge Starcher in completing his investigation and report.
Footnote: 4West Virginia Code § 49-5-8(b) (1986) relates the circumstances under which a juvenile may be taken into custody. It also provides that, once a child is taken into custody, the child must be taken immediately before a referee or circuit court judge (i.e., the next succeeding judicial day) for the purpose of holding a detention hearing based upon the previously discussed standards.