January 26, 1987
Mr. Gary L. Gellhaus
Brown County State's Attorney
Brown County Courthouse
Aberdeen, South Dakota 57401
OFFICIAL OPINION NO. 87-01
Detention of Juveniles in the County Jail
Dear Mr. Gellhaus:
You have requested an official opinion from this Office based upon the following factual information.
FACTS:
Brown County, as well as many other counties in this State, does not have a separate detention center in which to house juveniles. In the past, your office has had occasion to place juveniles at the New Beginnings Center located in Aberdeen, South Dakota. That Center, however, is not able to accept all juveniles, especially those who are prone to abscond from such facility. The court, therefore, has authorized the county to house such juveniles in a separate wing of the county jail. These juveniles are kept separate from the adult prisoners in all respects.
Based upon these facts, you have asked the following question.
QUESTION:
Whether a juvenile may be so housed in an adult corrections facility provided that accommodations are first made to ensure that he is kept separate from the adult inmates?
In response to your question, it must be recognized that the commitment of a minor to an adult penal institution, or an initial commitment to a youth facility and subsequent transfer to an adult penal institution, presents vexing problems which have been considered in numerous cases and with respect to which courts have reached conflicting results.
The court's authority to order that a juvenile delinquent be incarcerated in an adult penal institution has been considered in several cases insofar as that authority is determined by various statutes affecting the court's jurisdiction to sentence, or the nature of its authority over, juvenile delinquents. While some courts have upheld, under particular state statutes and the particular circumstances presented, the authority to authorize a juvenile delinquent's incarceration in an adult penal institution, other courts have found that such an order was prohibited.
A number of courts have held that the commitment of a minor to an institution for adult offenders was impermissible where it was not founded upon a criminal prosecution and conviction attended by the usual constitutional guarantees. In State v. Owens, 416 P.2d 259 (Kan. 1966), the court found that, under Kansas law, a juvenile offender committed to the Boys Industrial School could not be transferred to the State Industrial School without a trial in the criminal sense, wherein the offender is charged with a felony and tried as an adult with all the accompanying constitutional safeguards. It was held that confinement in such a penal institution would convert the nature of the proceedings from juvenile to criminal and would thus require the observance of constitutional safeguards. See also In Re Rich, 216 A.2d 266 (Vt. 1966); State Ex Rel. McGilton v. Adams, 102 S.E.2d 145 (W.Va. 1958).
A commonly found factor affecting the determination of whether the court possesses the authority to order that a juvenile delinquent be incarcerated in an adult penal institution is the presence or absence of provisions for insuring that the juvenile is kept separate and apart from contact with adult inmates.
See Skeans v. Van Hoose, 512 S.W.2d 520 (Ky. 1974), cert. denied 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 (court found that under provisions of Kentucky statute, there was no legal authority for the detention of a 13-year old child in any portion of the county jail that was not physically separated from
sight and sound from all other portions of the county jail); State v. Kemper, 535 S.W.2d 241 (Mo.App. 1976) (place of detention was to be located and arranged so that the child being detained did not come into contact, at any time and in any manner, with adults convicted or under arrest); Schaffer v. Green, 496 P.2d 375 (Okla. 1972) (statute providing that a child 12 years of age or older could, with the consent of the judge, be placed in a jail or other place of detention for adults, if in a room or ward entirely separate from adults); In Re Parker, 310 A.2d 414 (Pa.Super. 1973)(in the absence of separate institutions for juvenile delinquents and adult criminals, the court directed correctional authorities to provide for the separate use of the Same facilities, avoiding at all times any intermingling of the two groups); In Re Welfare of R.L.W, 245 N.W.2d 204 (Minn. 1976)(although holding that placement of a juvenile in an
adult institution was not per se a violation of his constitutional rights, the court went on to find that such placement was improper in that it constituted the sentencing of a juvenile to an adult corrections facility without separate accommodations for juveniles).
The rationale behind this requirement of confining juveniles separate and apart from adult prisoners is quite apparent. These juveniles must be protected from the adverse influence which adult prisoners might exert upon them. By subjecting such youth to the evil influences of older criminals and their teaching of criminal techniques, the penal institution would only be spreading the infection of crime and fostering, rather than checking it.
Yet another factor affecting the court's authority to order that the juvenile delinquent be incarcerated in an adult penal institution is the requirement that appropriate rehabilitative programs be provided for such juvenile. Vacating ~ a lower court's order sentencing a juvenile to such an institution, the court in In Interest of Haas, 339 A.2d 98 (Pa.Super. 1975), held that the juvenile delinquent's commitment to this correctional institution had placed him in a position where he could not reasonably participate in any rehabilitative program. See also
0-H- v. French, 504 S.W.2d 269 (Mo. App. 1973); State v. Gradv, 444 N.E.2d 51 (Ohio App. 1981); Wilson v. Coughlin, 147 N.W.2d 175 (Iowa 1966).
With regard to this State's statutes, I am of the opinion that they provide our courts with the authority to order that a juvenile delinquent, fifteen years of age or older, be housed in a jail or lockup. SDCL 26-8-39 provides that:
Whenever a child has been adjudicated as being delinquent, the court shall enter a decree of disposition, containing one or more of the following provisions which the court finds appropriate:
(1) The court may make any disposition, or combination of dispositions when appropriate, provided for under §26-8-40.1 for disposition of a child in need of supervision, except that any delinquent child may be committed to the state training school at Plankinton, or incarcerated in an authorized detention room or home of detention established pursuant to §26-8-26, §26-8-28 or §26-8-29 for a period not to exceed ninety days.
(2) The court may impose a fine not to exceed fifty dollars.
As is provided in SDCL 26-8-29:
No child within the provisions of this chapter, under fifteen years of age, shall under any circumstances be incarcerated in any common jail or lockup, and no court or magistrate shall commit a child under fifteen years of age to a jail or police station, but if such child is unable to give bail it may be committed to the care of the sheriff, police officer, or probation officer, who shall keep such child in some suitable place provided by the city or county outside of the enclosure of any jail or police station; and in case such child be fifteen years of age or more, it shall be discretionary with the court to order or commit such child to the care of the sheriff, police officer, or probation officer, who shall keep such child outside of the enclosure of any jail or lockup if the court so orders.
As is relevant to your inquiry, the language of this statute is quite clear, under no circumstances can a child under fifteen (15) years of age be incarcerated within the enclosure of any jail or lockup. As to these juveniles 15 years of age or older, the court shall have the discretion to commit such child to the care of the sheriff. The sheriff is required to keep that juvenile outside of the enclosure of the jail only if the court so ordered. If the court were, however, to direct that the juvenile delinquent be housed in the juvenile section of the county jail, I feel that the sheriff would be justified in following those directives.
I must be careful, however, to point out that efforts should continue toward keeping those juveniles segregates, in all respects, from the adult inmate population. Furthermore, they should be provided rehabilitative programs appropriate to their age and needs. I must further caution that statue appears to limit the detention in such facility to a period not to exceed ninety days.
As to any questions concerning the constitutionality of said statutes please be advised that this office does not render opinions on such issues.
Sincerely,
Roger A. Tellinghuisen
ATTORNEY GENERAL
