Chapter 6:
State Statutes Governing the Transfer of
Juveniles to the Adult Court System

Juveniles in Adult Prisons and Jails.
A National Assessment

By James Austin Ph.D.
Kelly Dedel Johnson, Ph.D.
Maria Gregoriou, M.A.

October 2000

GORSKI-CENAPS Web Publications (www.tgorski.com)
Published On: June 10, 2001 Updated On: August 07, 2001
© Terence T. Gorski, 2001

New York

New York CLS CPL 510.15 (1998)

Commitment of principal under sixteen (16). When a principal who is under the age of sixteen (16) is committed to the custody of the sheriff the court must direct that the principal be taken to and lodged in a place certified by the state division for youth as a juvenile detention facility for the reception of children. Where such a direction is made the sheriff shall deliver the principal in accordance therewith and such person shall although lodged and cared for in a juvenile detention facility continue to be deemed to be in the custody of the sheriff. No principal under the age of sixteen (16) to whom the provisions of this section may apply shall be detained in any prison, jail, lockup, or other place used for adults convicted of a crime or under arrest and charged with the commission of a crime without the approval of the state division for youth in the case of each principal and the statement of its reasons therefor.

NY CLS Family Ct Act Section 304.1 (1999) Detention

1. A facility certified by the state division for youth as a juvenile facility must be operated in conformity with the regulations of the state division for youth and shall be subject to the visitation and inspection of the state board of social welfare.

2. No child to whom the provisions of this article may apply shall be detained in any prison, jail, lockup, or other place used for adults convicted of crime or under arrest and charged with crime without the approval of the state division for youth in the case of each child and the statement of its reasons therefor.

3. The detention of a child under ten (10) years of age in a secure detention facility shall not be directed under any of the provisions of this article.

North Carolina

N.C. Gen. Stat. Section 7B-2809 (1999) Detention practices

To every extent possible, it shall be the policy of states party to this Compact that no juvenile or delinquent juvenile shall be placed or detained in any prison, jail, or lockup, nor be detained or transported in association with criminal, vicious, or dissolute persons.

Section 153A-221.1 Effective July 1, 1999 Standards and inspections

The Secretary of Health and Human Services shall also develop standards under which a local jail may be approved as a holdover facility for not more than five (5) calendar days pending placement in a juvenile detention home which meets state standards, providing the local jail is so arranged that any child placed in the holdover facility cannot converse with, see, or be seen by the adult population of the jail while in the holdover facility. The personnel responsible for the administration of a jail with an approved holdover facility shall provide close supervision of any child placed in the holdover facility for the protection of the child.

North Dakota

Cent. Code, Section 27-20-16 (1999) Place of detention

1. A child alleged to be delinquent or unruly may be detained only in:

a. A licensed foster home or a home approved by the court;

b. A facility operated by a licensed child welfare agency;

c. A detention home or center for delinquent or unruly children which is under the direction or supervision of the court or other public authority or of a private agency approved by the court;

d. Any other suitable place or facility, including a medical facility for the treatment of mental illness, alcoholism, or drug addiction, designated by the court; or

e. A jail or other facility for the detention of adults only if the facility in subdivision c is not available, the detention is in a room separate and removed from those for adults, it appears to the satisfaction of the court or the juvenile supervisor, intake officer, or other authorized officer of the court, that public safety and protection reasonably require detention, and it is so authorized.

2. The official in charge of a jail or other facility for the detention of adult offenders or persons charged with crime shall inform the court immediately if a person who is or appears to be a child is received at the facility and shall bring the person before the court upon request or deliver the person to a detention or shelter care facility designated by the court.

3. If a case is transferred to another court for criminal prosecution the child may be transferred to the appropriate officer or detention facility in accordance with the law governing the detention of persons charged with crime.

4. A child alleged to be deprived may be placed in shelter care only in the facilities stated in subdivisions a, b, and d of subsection 1 and may not be detained in a jail or other facility intended or used for the detention of adults charged with criminal offenses or of children alleged to be delinquent or unruly.

5. Effective January 1, 1988, a child alleged to be unruly may be detained only in the facilities listed in subdivisions a, b, c, and d of subsection 1.

Ohio

Section 2151.31 (1997)

B(2) Except as provided in division (C) of section 2151.311 of the Revised Code, a child taken into custody shall not be held in any state correctional institution, county, multicounty, or municipal jail or workhouse, or any other place where any adult convicted of crime, under arrest, or charged with crime is held.

Section 2151.311

(C)(1) a person taking a child into custody may hold the child for processing purposes in a county, multicounty, or municipal jail or workhouse, or other place where an adult convicted of crime, under arrest, or charged with crime is held for either of the following periods of time:

(a) For a period not to exceed six (6) hours, if all of the following apply:

(i) The child is alleged to be a delinquent child for the commission of an act that would be a felony if committed by an adult;

(ii) The child remains beyond the range of touch of all adult detainees;

(iii) The child is visually supervised by jail or workhouse personnel at all times during the detention;

(iv) The child is not handcuffed or otherwise physically secured to a stationary object during the detention.

(b) For a period not to exceed three (3) hours, if all of the following apply:

(i) The child is alleged to be a delinquent child for the commission of an act that would be a misdemeanor if committed by an adult or is alleged to be an unruly child or a juvenile traffic offender;

(ii) The child remains beyond the range of touch of all adult detainees;

(iii) The child is visually supervised by jail or workhouse personnel at all times during the detention;

(iv) The child is not handcuffed or otherwise physically secured to a stationary object during the detention.

(C)(2) If a child has been transferred to an adult court for prosecution for the alleged commission of a criminal offense, subsequent to the transfer, the child may be held as described in division (C) of section 2151.312 [2151.31.2] or division (B) of section 5120.16 of the Revised Code.

Oklahoma

Section 130.7 (1998) Separation from adults

No child shall be confined in any police station, prison, jail, or lockup, nor be transferred or detained in any place where such child can come in contact or communication with any adult convicted of a crime, or under arrest and charged with a crime. Provided further that any male person sixteen (16) or seventeen (17) years of age who may be in the custody of any peace officer or detained or confined in any police station, jail, or lockup, shall not be permitted to come in contact with, and shall be kept separate from, any person eighteen (18) years of age or older convicted of a crime or under arrest and charged with a crime.

10 Okl. St. Section 7304-1.1 (1998) Section 7304-1.1 Conditions of detention of child, detention or confinement in adult facility

(A)(2) No child alleged or adjudicated to be deprived or in need of supervision or who is or appears to be a child in need of mental health treatment as defined by the Inpatient Mental Health Treatment of Children Act, shall be confined in any jail, adult lockup, or adult detention facility. No child shall be transported or detained in association with criminal, vicious, or dissolute persons.

(E)(1) Except as otherwise provided in this section, no child shall be placed in secure detention in a jail, adult lockup, or other adult detention facility unless:

a. the child is detained for the commission of a crime that would constitute a felony if committed by an adult, and

b. the child is awaiting an initial court appearance, and

c. the child's initial court appearance is scheduled within twenty-four (24) hours after being taken into custody, excluding weekends and holidays, and

d. the court of jurisdiction is outside of the Standard Metropolitan Statistical Area as defined by the Bureau of Census, and

e. there is no existing acceptable alternative placement for the child, and

f. the jail, adult lockup, or adult detention facility meets the requirements for licensure of juvenile detention facilities, as adopted by the Office of Juvenile Affairs, is appropriately licensed, and provides sight and sound separation for juveniles, which includes:

(1) total separation between juveniles and adult facility spatial areas such that there could be no haphazard or accidental contact between juvenile and adult residents in the respective facilities,

(2) total separation in all juvenile and adult program activities within the facilities, including recreation, education, counseling, health care, dining, sleeping, and general living activities, and

(3) separate juvenile and adult staff, specifically direct care staff such as recreation, education, and counseling.

Specialized services staff, such as cooks, bookkeepers, and medical professionals who are not normally in contact with detainees or whose infrequent contacts occur under conditions of separation of juvenile and adults can serve both.

2. Nothing in this section shall preclude a child who is detained for the commission of a crime that would constitute a felony if committed by an adult, or a child who is an escapee from a juvenile training school or from a Department of Juvenile Justice group home from being held in any jail certified by the State Department of Health, police station, or similar law enforcement offices for up to six (6) hours for purposes of identification, processing or arranging for transfer to a secure detention or alternative to secure detention. Such holding shall be limited to the absolute minimum time necessary to complete these actions.

a. The time limitations for holding a child in a jail for the purposes of identification, processing, or arranging transfer established by this section shall not include the actual travel time required for transporting a child from a jail to a juvenile detention facility or alternative to secure detention.

b. Whenever the time limitations established by this subsection are exceeded, this circumstance shall not constitute a defense in a subsequent delinquency or criminal proceeding.

3. Nothing in this section shall preclude detaining in a county jail or other adult detention facility an 18-year-old charged in a juvenile petition for whom certification to stand trial as an adult is prayed.

4. Nothing in this section shall preclude detaining in a county jail or other adult detention facility a person provided for in Section 7304-1.2 of this title if written or electronically transmitted confirmation is received from the state seeking return of the individual that the person is a person provided for in Section 7304-1.2 of this title and if, during the time of detention, the person is detained in a facility meeting the requirements of 7304-1.3 of this title.

5. Nothing in this section shall preclude detaining a person, whose age is not immediately ascertainable and who is being detained for the commission of a felony, in a jail certified by the State Department of Health, a police station, or similar law enforcement office for up to twenty-four (24) hours for the purpose of determining whether or not the person is a child, if:

a. there is a reasonable belief that the person is eighteen (18) years of age or older,

b. there is a reasonable belief that a felony has been committed by the person,

c. a court order for such detention is obtained from a judge of the district court within six (6) hours of initially detaining the person,

d. there is no juvenile detention facility that has space available for the person and that is within thirty (30) miles of the jail, police station, or law enforcement office in which the person is to be detained, and

e. during the time of detention the person is detained in a facility meeting the requirements of subparagraph f of paragraph 1 of this subsection.

The time limitation provided for in this paragraph shall include the time the person is detained prior to the issuance of the court order.

The time limitation provided for in this paragraph shall not include the actual travel time required for transporting the person to the jail, police station, or similar law enforcement office. If the time limitation established by this paragraph is exceeded, this circumstance shall not constitute a defense in any subsequent delinquency or criminal proceeding.

F. Nothing contained in this section shall in any way reduce or eliminate a county's liability as otherwise provided by law for injury or damages resulting from the placement of a child in a jail, adult lockup, or other adult detention facility.

10 Okl. St. Section 7306-2.4 (1998) Treatment of a child certified as an adult or youthful offender in criminal proceedings

D. Upon arrest and detention of a person subject to the provisions of Section 7306-2.5 or 7306-2.6 of this title, the person has the same right to be released on bail as would an adult in the same circumstances and, if detained, may be detained in a juvenile detention facility or in a county jail if separated from the adult population as otherwise authorized by law.

E. Upon a verdict of guilty or entry of a plea of guilty or nolo contendere by a youthful offender who has been certified for the imposition of an adult sentence as provided by Section 7306-2.8 of this title the person may be detained as an adult and, if incarcerated, may be incarcerated with the adult population.

Oregon

137.705 (1997)

(2) (a) Notwithstanding ORS 419B.100 and 419C.005, a person 15, 16, or 17 years of age at the time of committing the offense may be charged with the commission of an offense listed in ORS 137.707 and may be prosecuted as an adult.

(b) The district attorney shall notify the juvenile court and the juvenile department when a person under 18 years of age is charged with an offense listed in ORS 137.707.

(c) The filing of an accusatory instrument in a criminal court under ORS 137.707 divests the juvenile court of jurisdiction in the matter if juvenile court jurisdiction is based on the conduct alleged in the accusatory instrument or any conduct arising out of the same act or transaction. Upon receiving notice from the district attorney under paragraph (b) of this subsection, the juvenile court shall dismiss, without prejudice, the juvenile court proceeding and enter any order necessary to transfer the matter or transport the person to the criminal court for further proceedings. Nothing in this paragraph affects the authority or jurisdiction of the juvenile court with respect to other matters or conduct.

(3) (a) A person charged with a crime under ORS 137.707 who is sixteen (16) or seventeen (17) years of age shall be detained in custody in a jail or other place where adults are detained subject to release on the same terms and conditions as for adults.

(b) Notwithstanding paragraph (a) of this subsection, the sheriff and the director of the county juvenile department may agree to detain the person charged in a place other than the county jail.

(c) If a person charged with a crime under ORS 137.707 is under sixteen (16) years of age, the person may not be detained, either before conviction or after conviction but before execution of the sentence, in a jail or other place where adults are detained.

ORS Section 419C.130 (1997) Youth may not be detained where adults are detained, exceptions

(1) No youth shall be detained at any time in a police station, jail, prison, or other place where adults are detained, except as follows:

(a) A youth may be detained in a police station for up to five (5) hours when necessary to obtain the youth's name, age, residence, and other identifying information.

(b) A youth waived under ORS 419C.349 or 419C.364 to the court handling criminal actions or to municipal court may be detained in a jail or other place where adults are detained, except that any such person under sixteen (16) years of age shall, prior to conviction or after conviction but prior to execution of sentence, be detained, if at all, in a facility used by the county for the detention of youths.

(2) No youth waived to the court handling criminal actions or to municipal court pursuant to a standing order of the juvenile court under ORS 419C.370, including a youth accused of nonpayment of fines, shall be detained in a jail or other place where adults are detained.

Pennsylvania

42 Pa.C.S. Section 6327 (1998) Place of detention

(A) General Rule.

Under no circumstances shall a child be detained in any facility with adults, or where the child is apt to be abused by other children.

(B) Report by Correctional Officer of Receipt of Child. The official in charge of a jail or other facility for the detention of adult offenders or persons charged with crime shall inform the court immediately if a person who is or appears to be under the age of 18 years is received at the facility and shall bring him before the court upon request or deliver him to a detention or shelter care facility designated by the court.

(D) Transfer of Child Subject to Criminal Proceedings. If a case is transferred for criminal prosecution, the child may be transferred to the appropriate officer or detention facility in accordance with the law governing the detention of persons charged with crime. The court in making the transfer may order continued detention as a juvenile pending trial if the child is unable to provide bail.

(E) Detention of Dependent Child. A child alleged to be dependent may be detained or placed only in a Department of Public Welfare approved shelter care and shall not be detained in a jail or other facility intended or used for the detention of adults charged with criminal offenses, but may be detained in the same shelter care facilities with alleged delinquent children.

Rhode Island

R.I. Gen. Laws Section 14-1-26 (1998) Separation from adult offenders

In case a delinquent or wayward child is taken into custody or detained before or after the filing of a petition, or pending a hearing thereon, the child shall not be confined in any prison, jail, lockup, or reformatory, or be transported with, or compelled or permitted to associate or mingle with, criminal, vicious, or dissolute persons, but shall be kept under the care of the person arresting the child, or of a police matron as provided in Section 14-1-24, until by order of the court other disposition is made of the child as provided in this chapter; and if the child is ordered to be detained, or confined in any of the institutions mentioned in this chapter, the child shall not be conveyed to or from the institution with adult offenders.

South Carolina

Code Ann. Section 20-7-6845 (1998)

(4) The Budget and Control board will coordinate with all responsible and affected agencies and entities to ensure that adequate funding is identified to prevent the detention or incarceration of juveniles who are awaiting disposition by, or who are under the jurisdiction of, the family court in adult jails anywhere within the state of South Carolina and to prevent the detention of juveniles who are awaiting disposition by general sessions court in facilities which do not provide actual sight and sound separation from adults who are in detention or custody.

South Dakota

S.D. Codified Laws Section 26-11-1(1999) Proceedings on offense for which child not subject to delinquency proceedings, prosecution as adult, detention in adult jail or lockup

If any child under the age of eighteen (18) years is arrested, with or without a warrant, for violation of any law or municipal ordinance for which the child is not subject to proceedings as a delinquent child or for violation of Section 34-46-2(2), the child shall be brought before the judge of a court having jurisdiction over the offense and proceedings shall be conducted as though the child were eighteen (18) years of age or older.

A child under the age of eighteen (18) years, subject to proceedings pursuant to this section and accused of a Class 2 misdemeanor, may be held in or sentenced to an adult lockup or jail or a detention or temporary care facility for up to seven (7) days if physically separated from adult prisoners.

A child under the age of eighteen (18) years, subject to proceedings pursuant to this section and accused of a Class 1 misdemeanor, may be held in or sentenced to an adult lockup or jail or a detention or temporary care facility for up to thirty (30) days if physically separated from adult prisoners.

Tennessee

Code Ann. Section 37-1-116 (1999) Place of detention, escape or attempted escape

(a) A child alleged to be delinquent or unruly may be detained only in:

(1) A licensed foster home or a home approved by the court;

(2) A facility operated by a licensed child welfare agency;

(3) A detention home or center for delinquent children which is under the direction or supervision of the court or other public authority or of a private agency approved by the court; or

(4) Subject to subsection (e), any other suitable place or facility designated or operated by the court. The child may be detained in a jail or other facility for the detention of adults only if:

(A) Other facilities in subdivision (a)(3) are not available;

(B) The detention is in a room separate and removed from those for adults; and

(C) It appears to the satisfaction of the court that public safety and protection reasonably require detention, and it so orders.

(b) The official in charge of a jail or other facility for the detention of adult offenders or persons charged with crime shall inform the court immediately if a person who is or appears to be under eighteen (18) years of age is received at the facility, and shall bring such person before the court upon request or deliver such person to a detention or shelter care facility designated by the court.

(c) If a case is transferred to another court for criminal prosecution, the child may be transferred to the appropriate officer or detention facility in accordance with the law governing the detention of persons charged with crime.

(d) A child alleged to be dependent or neglected may be detained or placed in shelter care only in the facilities stated in subdivisions (a)(1), (2), and (4), and shall not be detained in a jail or other facility intended or used for the detention of adults charged with criminal offenses or of children alleged to be delinquent.

(e) No child may be detained or otherwise placed in any jail or other facility for the detention of adults, except as provided in subsections (c) and (h).

(h) A juvenile may be temporarily detained for as short a time as feasible, not to exceed forty-eight (48) hours, in an adult jail or lockup, if:

(1) The juvenile is accused of a serious crime against persons, including criminal homicide, forcible rape, mayhem, kidnaping, aggravated assault, robbery, and extortion accompanied by threats of violence;

(2) The county has a low population density not to exceed thirty-five (35) persons per square mile;

(3) The facility and program have received prior certification by the Tennessee corrections institute as providing detention and treatment with total sight and sound separation from adult detainees and prisoners, including no access by trustees;

(4) There is no juvenile court or other public authority, or private agency able and willing to contract for the placement of the juvenile; and

(5) A determination is made that there is no existing acceptable alternative placement available for the juvenile.

Texas

Tex. Fam. Code Section 51.12 (1999) Place and conditions of detention

(f) A child detained in a building that contains a jail, lockup, or other place of secure confinement, including an alcohol or other drug treatment facility, shall be separated by sight and sound from adults detained in the same building. Children and adults are separated by sight and sound only if they are unable to see each other and conversation between them is not possible. The separation must extend to all areas of the facility, including sally ports and passageways, and those areas used for admission, counseling, sleeping, toileting, showering, dining, recreational, educational, or vocational activities, and health care. The separation may be accomplished through architectural design.

(g) Except for a child detained in a juvenile processing office, a place of nonsecure custody, or a secure detention facility as provided by Subsection (i), a child detained in a building that contains a jail or lockup may not have any contact with:

(1) part-time or full-time security staff, including management, who have contact with adults detained in the same building; or

(2) direct-care staff who have contact with adults detained in the same building.

Utah

Code Ann. Section 62A-7-201 (1998) Confinement, facilities, restrictions

(1) Children under eighteen (18) years of age, who are apprehended by any officer or brought before any court for examination under any provision of state law, may not be confined in jails, lockups, or cells used for ordinary criminals or persons charged with crime, or in secure postadjudication correctional facilities operated by the division, except as provided by specific statute and in conformance with approved standards.

(2) (a) Children charged by information or indictment with crimes as a serious youth offender under Section 78-3a-602 (serious offense charges) or certified to stand trial as an adult pursuant to Section 78-3a-603 (waiver statute) may be detained in a jail or other place of detention used for adults.

(b) Children detained in adult facilities under Section 78-3a-602 or 78-3a-603 prior to a hearing before a magistrate, or under Subsection 78-3a-114(3), may only be held in certified juvenile detention accommodations in accordance with rules promulgated by the division. Those rules shall include standards for acceptable sight and sound separation from adult inmates. The division certifies facilities that are in compliance with the division's standards.

(3) In areas of low density population, the division may, by rule, approve juvenile holding accommodations within adult facilities that have acceptable sight and sound separation. Those facilities shall be used only for short-term holding purposes, with a maximum confinement of six (6) hours, for children alleged to have committed an act that would be a criminal offense if committed by an adult. Acceptable short-term holding purposes are: identification, notification of juvenile court officials, processing, and allowance of adequate time for evaluation of needs and circumstances regarding release or transfer to a shelter or detention facility.

Children who are alleged to have committed an act which would be a criminal offense if committed by an adult may be detained in holding rooms in local law enforcement agency facilities for a maximum of two (2) hours, for identification or interrogation, or while awaiting release to a parent or other responsible adult. Those rooms shall be certified by the division, according to the division's rules. Those rules shall include provisions for constant supervision and for sight and sound separation from adult inmates.

Code Ann. Section 78-3a-114 (1998) Placement of minor in detention or shelter facility, grounds, detention hearings, period of detention, notice, confinement of minors for criminal proceedings, bail laws inapplicable, exception

(8) (a) A minor under sixteen (16) years of age may not be held in a jail, lockup, or other place for adult detention except as provided by Section 62A-7-201 or unless certified as an adult pursuant to Section 78-3a-603. The provisions of Section 62A-7-201 regarding confinement facilities apply to this subsection.

(b) A minor sixteen (16) years of age or older whose conduct or condition endangers the safety or welfare of others in the detention facility for minors may, by court order that specifies the reasons, be detained in another place of confinement considered appropriate by the court, including a jail or other place of confinement for adults. However, a secure youth corrections facility is not an appropriate place of confinement for detention purposes under this section.

(9) A sheriff, warden, or other official in charge of a jail or other facility for the detention of adult offenders or persons charged with crime shall immediately notify the juvenile court when a minor who is or appears to be under eighteen (18) years of age is received at the facility and shall make arrangements for the transfer of the minor to a detention facility, unless otherwise ordered by the juvenile court.

(10) This section does not apply to a minor who is brought to the adult facility under Section 78-3a-602 or by order of the juvenile court to be held for criminal proceedings in the district court under Section 78-3a-603.

(11) A minor held for criminal proceedings under Section 78-3a-602 or 78-3a-603 may be detained in a jail or other place of detention used for adults charged with crime.

Vermont

V.S.A. Section 5514 (1999) Detention, temporary care pending hearing

(c) A child shall not be detained under this section in a jail or other facility intended or used for the detention of adults, unless the child is alleged to have committed a crime punishable by death or life imprisonment, and it appears to the satisfaction of the court that public safety and protection reasonably require such detention.

(d) The official in charge of a jail or other facility intended or used for the detention of adult offenders or persons charged with crime shall inform the court immediately when a minor, who is or appears to be under the age of eighteen (18) years, is received at the facility other than pursuant to subsection (c) of this section or section 5530 of this title, and shall deliver the minor to the court upon request of the court, or transfer the minor to the detention facility designated by the court by order.

Virginia

Code Ann. Section 16.1-249 (1998) Places of confinement for juveniles

A. If it is ordered that a juvenile remain in detention or shelter care pursuant to Section 16.1-248.1, such juvenile may be detained, pending a court hearing, in the following places:

1. An approved foster home or a home otherwise authorized by law to provide such care;

2. A facility operated by a licensed child welfare agency;

3. If a juvenile is alleged to be delinquent, in a detention home or group home approved by the Department;

4. Any other suitable place designated by the court and approved by the Department;

5. To the extent permitted by federal law, a separate juvenile detention facility located upon the site of an adult regional jail facility established by any county, city, or any combination thereof constructed after 1994, approved by the Department of Juvenile Justice and certified by the Board of Juvenile Justice for the holding and detention of juveniles.

B. No juvenile shall be detained or confined in any jail or other facility for the detention of adult offenders or persons charged with crime except as provided in subsection D, E, F, or G of this section.

C. Except for placement under subdivision A 5, the official in charge of a jail or other facility for the detention of adult offenders or persons charged with crime shall inform the court immediately when a juvenile who is or appears to be under the age of eighteen (18) years is received at the facility, and shall deliver him to the court upon request, or transfer him to a detention facility designated by the court.

D. When a case is transferred to the circuit court in accordance with the provisions of subsection A of ¤ 16.1-269.1 and an order is entered by the circuit court in accordance with ¤ 16.1-269.6, or in accordance with the provisions of ¤ 16.1-270 where the juvenile has waived the jurisdiction of the district court, or when the district court has certified a charge to the grand jury pursuant to subsection B or C of ¤ 16.1-269.1, the juvenile, if in confinement, may be transferred to a jail or other facility for the detention of adults and need no longer be entirely separate and removed from adults.

E. If, in the judgment of the custodian, a juvenile has demonstrated that he is a threat to the security or safety of the other juveniles detained or the staff of the home or facility, the judge shall determine whether such juvenile should be transferred to another juvenile facility or, if the child is fourteen years of age or older, a jail or other facility for the detention of adults; provided, that (i) the detention is in a room or ward entirely separate and removed from adults, (ii), adequate supervision is provided, and (iii) the facility is approved by the State Board of Corrections for detention of juveniles.

F. If, in the judgment of the custodian, it has been demonstrated that the presence of a juvenile in a facility creates a threat to the security or safety of the other juveniles detained or the staff of the home or facility, the custodian may transfer the juvenile to another juvenile facility, or, if the child is fourteen (14) years of age or older, a jail or other facility for the detention of adults pursuant to the limitations of clauses (i), (ii), and (iii) of subsection E for a period not to exceed six (6) hours prior to a court hearing and an additional six hours after the court hearing unless a longer period is ordered pursuant to subsection E.

G. If a juvenile fourteen (14) years of age or older is charged with an offense which, if committed by an adult, would be a felony or Class 1 misdemeanor, and the judge or intake officer determines that secure detention is needed for the safety of the juvenile or the community, such juvenile may be detained for a period not to exceed six (6) hours prior to a court hearing and six (6) hours after the court hearing in a temporary lockup room or ward for juveniles while arrangements are completed to transfer the juvenile to a juvenile facility. Such room or ward may be located in a building which also contains a jail or other facility for the detention of adults, provided (i) such room or ward is totally separate and removed from adults or juveniles transferred to the circuit court pursuant to Article 7 (Section 16.1-269.1 et seq.) of this chapter, (ii) constant supervision is provided, and (iii) the facility is approved by the State Board of Corrections for the detention of juveniles. The State Board of Corrections is authorized and directed to prescribe minimum standards for temporary lockup rooms and wards based on the requirements set out in this subsection.

G1. Any juvenile who has been ordered detained in a secure detention facility pursuant to Section 16.1-248.1 may be held incident to a court hearing (i) in a court holding cell for a period not to exceed six (6) hours provided the juvenile is entirely separate and removed from detained adults or (ii) in a nonsecure area provided constant supervision is provided.

Washington

Rev. Code Wash. (ARCW) Section 13.04.116 (1999) Juvenile not to be confined in jail or holding facility for adults, exceptions, enforcement

(1) A juvenile shall not be confined in a jail or holding facility for adults, except:

(a) For a period not exceeding twenty-four (24) hours excluding weekends and holidays and only for the purpose of an initial court appearance in a county where no juvenile detention facility is available, a juvenile may be held in an adult facility provided that the confinement is separate from the sight and sound of adult inmates; or

(b) For not more than six (6) hours and pursuant to a lawful detention in the course of an investigation, a juvenile may be held in an adult facility provided that the confinement is separate from the sight and sound of adult inmates.

(2) For purposes of this section a juvenile is an individual under the chronological age of eighteen (18) years who has not been transferred previously to adult courts.

(3) The department of social and health services shall monitor and enforce compliance with this section.

(4) This section shall not be construed to expand or limit the authority to lawfully detain juveniles.

West Virginia

Code Section 49-5-16 (1999) Prohibition on committing juveniles to adult facilities

(a) No juvenile, including one who has been transferred to criminal jurisdiction of the court, shall be detained or confined in any institution in which he or she has contact with or comes within sight or sound of any adult persons incarcerated because they have been convicted of a crime or are awaiting trial on criminal charges or with the security staff (including management) or direct-care staff of a jail or locked facility for adults.

(b) No child who has been convicted of an offense under the adult jurisdiction of the circuit court shall be held in custody in a penitentiary of this state: Provided, that such child may be transferred from a secure juvenile facility to a penitentiary after he shall attain the age of eighteen (18) years if, in the judgment of the court which committed such child, such transfer is appropriate: Provided, however, that any other provision of this code to the contrary notwithstanding, prior to such transfer the child shall be returned to the sentencing court for the purpose of reconsideration and modification of the imposed sentence, which shall be based upon a review of all records and relevant information relating to the child's rehabilitation since his conviction under the adult jurisdiction of the court.

W. Va. Code Section 49-5A-2 (1999) Investigation and release of child taken into custody, detention hearings

A child who has been arrested or who under color of law is taken into the custody of any officer or employee of the state or any political subdivision thereof shall be forthwith afforded a hearing to ascertain if such child shall be further detained. In connection with any such hearing, the provisions of article five [Section 49-5-1 et seq.] of this chapter shall apply. 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.

Wisconsin

Wis. Stat. Section 938.209 (1998) Criteria for holding a juvenile in a county jail or a municipal lockup facility

(1) Subject to s. 938.208, a county jail may be used as a secure detention facility if the criteria under either par. (a) or (b) are met:

(a) There is no other secure detention facility approved by the department or a county which is available and all of the following conditions are met:

1. The jail meets the standards for secure detention facilities established by the department.

2. The juvenile is held in a room separated and removed from incarcerated adults.

3. The juvenile is not held in a cell designed for the administrative or disciplinary segregation of adults.

4. Adequate supervision is provided.

5. The judge reviews the status of the juvenile every three (3) days.

(b) The juvenile presents a substantial risk of physical harm to other persons in the secure detention facility, as evidenced by previous acts or attempts, which can only be avoided by transfer to the jail. The conditions of par. (a) 1. to 5. shall be met. The juvenile shall be given a hearing and transferred only upon order of the judge.

(2m) (a) A juvenile who is alleged to have committed a delinquent act may be held in a municipal lockup facility if all of the following criteria are met:

1. The department has approved the municipal lockup facility as a suitable place for holding juveniles in custody.

2. The juvenile is held in the municipal lockup facility for not more than six (6) hours while awaiting his or her hearing under s. 938.21 (1) (a).

3. There is sight and sound separation between the juvenile and any adult who is being held in the municipal lockup facility.

4. The juvenile is held for investigative purposes only.

(b) The department shall promulgate rules establishing minimum requirements for the approval of a municipal lockup facility as a suitable place for holding juveniles in custody and for the operation of such a facility. The rules shall be designed to protect the health, safety, and welfare of the juveniles held in those facilities.

(3) The restrictions of this section do not apply to the use of jail for a juvenile who has been waived to adult court under s. 938.18 or who is under the jurisdiction of an adult court under s. 938.183, unless the juvenile is under the jurisdiction of an adult court under s. 938.183 (1) and is under fifteen (15) years of age.

Wis. Stat. Section 938.22 (1998) Establishment of secure detention facilities and shelter care facilities

(b) If the department approves, a secure detention facility or a holdover room may be a part of a public building in which there is a jail or other facility for the detention of adults if the secure detention facility or holdover room is so physically segregated from the jail or other facility that the secure detention facility or holdover room may be entered without passing through areas where adults are confined and that juveniles detained in the secure detention facility or holdover room cannot communicate with or view adults confined therein.

(e) A shelter care facility shall be used for the temporary care of juveniles. A shelter care facility, other than a holdover room, may not be in the same building as a facility for the detention of adults.

Wyoming

Section 5-6-112 Detention of juvenile offenders

(a) Effective July 1, 1995, no minor charged with violating a municipal ordinance defined as a status offense under subsection (b) of this section shall be detained in a jail.

(b) As used in W.S. 5-6-112 and 5-6-113:

(i) "Juvenile detention facility" means any facility which may legally and physically restrict and house a child, other than the Wyoming boys' school, the Wyoming girls' school, the Wyoming state hospital, or other private or public psychiatric facility within the state of Wyoming. A juvenile detention facility may be housed within an adult jail or correction facility if the facility otherwise meets the requirements of state law;

(ii) "Minor" means an individual who is under the age of eighteen (18) years;

(iii) "Status offense" means an offense which, if committed by an adult, would not constitute an act punishable as a criminal offense by the laws of this state or a violation of a municipal ordinance, but does not include a violation of W.S. 12-6-101(b) or (c) or any similar municipal ordinance.

Wyo. Stat. Section 5-6-113 (1999) Incarceration of juvenile offenders

(a) Effective July 1, 1995, no minor convicted of a status offense shall be sentenced to a term of imprisonment.

(b) A minor convicted of a misdemeanor or of violating a municipal ordinance, other than a status offense, for which a term of imprisonment is authorized, shall only be imprisoned in a juvenile detention facility.

This document was prepared by the Institute on Crime, Justice and Corrections and the National Council on Crime and Delinquency, under grant number 97-DD-BX-0026, awarded by the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice.

The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime.

Terry Gorski and other member of the GORSKI-CENAPS Team are Available To Train & Consult On Areas Related To Adolescent Treatment
Gorski - CENAPS, 17900 Dixie Hwy, Homewood, IL 60430, 708-799-5000 www.tgorski.com, www.cenaps.com, www.relapse.org

Chapter 6: State Statutes Governing the Transfer of Juveniles to the Adult Court System