You meet your new client for the first time for the first detention hearing as the child was detained on a low-level felony or misdemeanor. The recommendation is for the child to be released on an electronic monitor. Your client hears that and says that he/she is willing to get out of detention on an “ankle bracelet.” The short-term victory is your client is happy because he/she got released and you look like the great lawyer who walked into court and got your client released. However, did you truly do a service to your client and other children in juvenile court?
We have all been in the situation described above and accept the offered release conditions because it satisfies the wishes of your client. However, how often do we ask if electronic monitoring is appropriate while still arguing for our client’s expressed interest to be released? Electronic monitoring is a common release condition for adult court and by accepting it as a release condition for children in juvenile court in all situations mares the difference between juvenile and adult court. What is amazing about the utilization of electronic monitoring in juvenile court is when it is used when it is not necessary and when it is not used when it is necessary. There are a few situations that truly highlight these two types of scenarios and the rationale behind its appropriateness or lack thereof.
My office has had numerous children who are detained on misdemeanors or low-level felonies, they comply with curfew and rules put in place by the parent/guardian, they attend school daily, and they have a social history that is absent any red flags. Court counselors frequently ask for a child to be released on electronic monitoring due to the serious nature of a child having a felony charge. While one can appreciate that a felony is a serious offense, we must inquire about the virtue of an electronic monitor and whether this child is truly a danger to property or persons as is one of the criteria under N.C.G.S 7B-1903(b)(1). Merely being charged with a felony does not mean a child is a danger to property or persons and making an argument against continued detention or release on electronic monitoring is a necessary argument. Children that are charged with possession of drugs that rise to a low-level felony, possession of stolen goods merely because the child was given property from a B&E, or assault-based offenses are not necessarily appropriate for a monitor due to the lack of correlation between the charge and the need for 24/7 supervision. Possession of a drug or property, while serious and concerning, does not mean that the person needs to be supervised at all times without other factors present. If someone is charged with assault (either physical or sexual), an electronic monitor serves no purpose to prevent a future attack. All a monitor would do in an assault situation is provide confirmation that a person was present should another attack occur, but would not actually prevent an attack. While these situations can be concerning to a victim, judge, or prosecutor, we still need to balance the purpose of a monitor with the juvenile court-to-prison pipeline that is created by imposing adult court conditions on children.
While those situations are ones that are self-explanatory for when a monitor is not necessary, there are also situations when a monitor is refused when it can be appropriate for a child to be released. My favorite situation that arises in court is when a court counselor said that child was denied for electronic monitoring because he/she has an AWOL history. At that point I want to turn to the court counselor and do my best Biff impression from Back to the Future and say, “Hello, McFly! Think, McFly, think!” I have made the argument to judges that if a monitor is only used for children who comply with a curfew and we know where they are at all times, then what is the purpose of the monitor? If children have a history of going AWOL, not following a curfew, or leaving school without permission, then a monitor can serve a purpose to ensure the child thinks twice before making that negative decision knowing big brother is watching at all times. No one wants to see a child with an electronic device strapped to his/her ankle at all times, but if it serves as a behavior modification technique, causes the child to think twice about a decision, and stops the prior behaviors that led them to juvenile court, then the use of the device is appropriate.
There is also the situation when court stakeholders believe that because your client committed one breaking and entering, he/she committed all of them. I have had numerous clients that, to their credit and honesty, will gladly tell you which crimes they committed and which ones they did not. The monitor has been useful to show a judge and prosecutor that just because there was enough evidence for one case, does not justify bringing charges for another because the child’s monitor did not show his/her presence at the scene of another crime. As stated above, I do not like to see a child on a monitor but there are times when its presence can be utilized to demonstrate your client’s innocence.
While juvenile court has been around for a number of years, in light of where it has come in the past 50 years since In re Gault, there are still a number of practices that are not juvenile court practices, but rather applied adult court practices. While it is easy to accept those practices as that may be all we have, we must be diligent to challenge their utilization and appropriateness when they are not right for children. When you believe you have nothing else to argue, it is easy to go back to N.C.G.S. 7B-1500 and argue that rehabilitation and constitutional rights for children are always at the heart of what juvenile court is about. Children may be focused on the short-term win, but we need to be thinking about the long-term effects. The arguments we make today will become best practices in the years to come.
Mitchell Feld is the Director of Children’s Defense at the Council for Children’s Rights representing children in delinquency and mental health commitment matters. Mr. Feld obtained his undergraduate degree from Lafayette College in Easton, Pennsylvania in 2005 and his J.D. degree from the University of Miami School of Law in 2008. Mr. Feld is a member of the North Carolina Bar and the Western District of North Carolina. He has served as the Chair and Vice Chair of the Juvenile Law Section of the Mecklenburg County Bar and currently serves on the Mecklenburg County Bar Grievance Committee. Mr. Feld has lectured at the local, state, and national level on juvenile case law, interviewing children, sex offenses and registration, motions practice, and delinquency advocacy.