Dear Mom, I'm spending the night in jail

They don't know it, but most jailed kids are eligible for bail

The length of time varies, but usually it's just a few days: A 14-year-old girl jailed three days after driving without a license; a 13-year-old boy locked up for five days after giving a police officer a phony name; another youth held five days for a minor shoplifting arrest. For some, the time behind bars is longer — like the 42 days a 15-year-old girl spent in jail, also on shoplifting charges.
In Georgia's historically under-funded, overcrowded juvenile justice system, these youngsters share more than temporary quarters courtesy of the state. Like the vast majority of children under Department of Juvenile Justice supervision, they're more than likely black, poor, jailed for nonviolent offenses — and, under Georgia law, eligible for bail.
In fact, 24,944 of the children under DJJ supervision in 1999 — 96 percent of the entire DJJ population — could have been released on bail, according to a letter from Commissioner Orlando Martinez.
So why didn't they get it?
"The truth is that a whole lot of kids go to jail that don't need to be there," says Rick McDevitt, president of the Georgia Alliance for Children. Worse, he says, most of those children have no idea that they have a right to bail — and neither do their parents.
He's not without some strong arguments. Under Georgia law, only a Superior Court judge may grant bail to juveniles charged or sentenced for any of 13 serious offenses, including murder, rape, armed robbery, arson and so forth. But such cases average between 4 and 10 percent of all juvenile cases, according to state figures. All others are automatically eligible for bail.
The letter from Martinez points up a major failure of the system, says McDevitt.
"That's astonishing," he says. "Here we've got this overcrowded, under-funded system, and the great majority of these kids don't even need to be there at all!" Now he's using the DJJ's figures to bolster his demands that Georgia comply with state law, which requires that children be offered bail "in the same manner and under the same circumstances and procedures as are applicable to adults."
The problem, he says, is twofold. First, juvenile court officers and judges don't routinely inform parents that their kids have a right to bail; and second, some parents may welcome the jailing of a troublesome youngster.
McDevitt is calling for posted notices explaining that parents and children have a right to bail during the booking process, and for parents to sign a form acknowledging they know those rights. He also wants the DJJ to create a list of bail bondsmen certified to write juvenile bonds, and to circulate a schedule of statewide bond rates for particular offenses. Further, he wants to penalize parents who simply refuse to make bail.
"Say a kid's got a $300 bond on a shoplifting charge," he says. "If a parent can't make that, a bondsman'll charge 10 percent: $30. Now if a parent can't come up with $30 to get their kid out of jail, maybe we should see whether what we've got is, in fact, a deprived child."
Among those who think McDevitt may be onto something is Martinez himself, who welcomes any discussion that may help how children are handled in juvenile courts.
"I think we need to re-think how we use correctional facilities for kids, and the bail issue helps facilitate that discussion," says Martinez. "The purposes of detention are to ensure court appearances and public safety. ... If kids are going to be in the criminal justice system, they have the same right to bail as adults."
"I was not surprised" when a review of 1999 records indicated an overwhelming majority of children eligible for bail, he says. "When I got here 20 months ago, it became very clear that we are over-relying on detention."
Other juvenile justice officials also agree with some of McDevitt's arguments. But they disagree with his assertion that judges aren't complying with the law.
"I think some people see a problem where there really isn't one," says Eric John, director of the state Council of Juvenile Judges. "The fact is, juvenile court was never created to be an adversarial process, so we try to avoid anything that stigmatizes a child by using words like 'guilty' or 'bond,' that may paint the picture of a criminal."
The majority of children who face a juvenile judge, he says, "come in and a judge usually sends them home with their parents, or gives them probation on their own recognizance."
"Then why are the detention centers overcrowded with property offenders?" asks McDevitt, who agrees that the majority of youths who come before a juvenile judge are, in fact, released. "It's those other 25,000 kids who aren't released we're talking about."
In a partial response, John notes that the DJJ's 96 percent figure is essentially a snapshot of a child's charges at that particular time, and doesn't reflect the complete history, which may involve frequent — or more serious — criminal behavior.
Martinez's assistant, Jaci Vickers, agrees.
"As with adults," she says, "the decision to grant bail is based not simply on the offense, but on past history: the likelihood they'll show up, whether there's a pattern of criminal behavior."
Fulton County Juvenile Judge Sanford Jones dismisses McDevitt's demands as unnecessary.
"It's all just talk," he says bluntly. "If your child gets locked up, if you can assure us you can take care of that child, we'll release him to you."
In Fulton last year, he says, some 17,000 cases came before the juvenile courts. "About 3,000 actually went through a detention facility," he says, "and the vast majority of them were released within 24 hours. ... That's what happens in about 90 percent of the cases."
And even in the cases where he does decide to issue bond, he says, it's seldom met. "In fact," he says, "in 10 years on the Fulton Juvenile Court, I have never put a bond on a child, and had that child actually post bond. Never."
The 96 percent figure, says Jones, "sounds shocking, but put it in perspective. If you or I get locked up, it's punitive. A child can only be placed there for his own protection or because we think he's a danger to society. ... Remember, the average child only stays there 11 days."
As to McDevitt's urging of sanctions against parents who let their children languish in jail, he says, "That happens every day. If we realize a parent is just refusing to pick up the child, that child goes directly to a shelter and we file a deprivation order against the parent."
That's not good enough, responds McDevitt.
"The truth is," he says, "a kid could be in jail three to five days" before even appearing before a judge. "Our position is that bail should be offered the moment the kid's processed, which is when they do it for adults. ... What a parent does or doesn't do is clearly after the fact. A child should not be locked up based on the parents' behavior!"
He also has little patience for arguments that prior offenses put bond off-limits for many children.
"If a kid has priors, then bail would be set higher," he says. "The only reason bail is denied is if the person is a flight risk or a serious danger to the community. Three shoplifting priors doesn't qualify."
McDevitt's call is echoed by one county-level DJJ worker with more than 20 years on the job.
"We seldom see a bond issued," says the employee, speaking on condition of anonymity. "And usually when we do, it's because a child has a paid lawyer to request it. Unlike the right to an attorney, it's not part of our established procedure to inform a child or parent that they have a right to bail. As a result, no one ever requests it."
A telephone survey of several local bonding companies confirms that assessment: Most said they don't write juvenile bails at all, and the few who do said that they were usually requested for minors facing serious felony charges.
"I'd say less than 1 percent of our business" comes from juvenile cases, said one Atlanta bondsman. Even then, he says, "it's almost always for pretty serious stuff." Paul Stewart, vice president of the Georgia Association of Professional Bondsmen, says his members would support any move to widen bond availability for youths.
"Typically, there are not a lot of 12-year-olds fleeing the state to avoid a court appearance," he says, "so it's not a problem with us."
McDevitt says he's heard all the arguments and, as CL goes to press, he's huddling with attorneys to craft a legal strategy to force the Supreme Court of Georgia, which oversees the rules juvenile judges operate under, to address the issue.
"Everybody always focuses on the conditions in our juvenile jails — and conditions are bad," he says. "But our focus here ain't about better housing and better jails. It's about jails being for dangerous kids; the rest shouldn't be locked up. Period."