In Maryland, all things “delinquency” flow through the Department of Juvenile Services. If you are a parent seeking a peace order in a juvenile case, you would go there. If you are a police officer who has arrested a juvenile, you know to go there. If you are an attorney representing a juvenile at intake, you will go there. If you are a judge seeking input on a detention hearing, an adjudication, or a disposition in a delinquency case, you will get DJS input. If a waiver investigation is done to determine whether a juvenile’s case should be sent to adult criminal court, DJS will do that investigation. If a hearing is held to decide whether a juvenile charged as an adult should be transferred back to juvenile court, DJS will do that investigation as well. If a juvenile is committed to DJS for placement at an out-of-home facility, that facility will be run by or overseen by DJS. If a juvenile is placed on probation, a DJS officer will be his/her probation agent. If there is a petition to close a case, DJS will weigh in on that decision as well.
In many ways, having such a unified juvenile justice approach is a good thing. The expertise DJS brings to the system, the funding through by a single agency, and the singular oversight are pluses. But the scale of this statewide bureaucracy has its minuses too. The department tends to have a “one size fits all” mindset, which does not consider all the myriad regional differences within Maryland. State salaries are less than the county salaries in many parts of the state, which leads to high turnover in DJS offices in counties like Montgomery where the local salaries are much higher.
I have had many positive experiences with DJS, both having served on the DJS State Advisory Board and having heard hundreds (if not thousands) of juvenile delinquency cases as a judge on the Circuit Court for Montgomery County. The current Secretary, Sam Abed, is a consummate professional and is dedicated to attaining the highest standards in all DJS endeavors. DJS resources, however, are limited, and the structure of the juvenile justice system limits what options are available throughout the course of a juvenile case.
Let’s start with the intake process, where a DJS officer will initially review a matter for possible delinquency action. The intake officer has a huge amount of discretion, guided only in very general terms by the statute governing juvenile cases. This officer will receive complaints from police officers, school resource officers, and members of the public, and will investigate such complaints to determine “whether judicial action is in the best interests of the public or the child.” Significantly, this inquiry need not include an interview of the child if the complaint deals with a felony, handgun, or use of a firearm allegation. Moreover, the intake officer may consider the need for restitution as one factor in the public interest. Thus, the crucial threshold decision whether to file a delinquency petition is determined in part based on the financial status of juveniles and their parents and may even be made in the most serious cases without ever seeing the juvenile or hearing his/her side of the story. After considering the best interests of both the child and the public, the intake officer may authorize the filing of a delinquency petition, propose an “informal adjustment of the matter” or refuse authorization to file a delinquency petition. As will be discussed in a future piece, the victim or police officer can appeal the denial of authorization to the State’s Attorney’s Office.
For now, however, consider how this intake process works in practice. A single intake officer makes a discretionary decision on whether a delinquency petition should be filed and sent to court. What are the “best interests” of the child? What are the “best interests” of the public? And are they not often in conflict? At intake, if the child alleged to be delinquent is interviewed, is he/she at a disadvantage if a parent does not speak English? Is the child disadvantaged if he/she misses the intake interview because a parent does not or cannot bring the child? Is the child disadvantaged if an attorney does not come to the intake interview? In felony and handgun cases, is it fair that the intake officer may make that discretionary decision having heard from the victim and police officer, but not from the child who is alleged to have committed the delinquent act? What impact on this discretionary decision does the matter of restitution have?
Given these realities, is it any wonder that less affluent children, Black and Latino children, and children of immigrants are at a distinct disadvantage? Again, put aside any latent or manifest prejudices a given intake officer may or may not have. And put aside the amorphous standards of bests interests of the child and the public. If a child misses that intake interview for any reason, his/her chances for an informal adjustment or denial of petition go way down. If a child has a privately retained attorney at intake (public defenders have not yet been appointed for indigent juveniles so those children will not have an attorney there), his/her chances for such a discretionary decision go way up. In a felony or handgun case, an attorney may be able to get the intake officer to interview the child even though the statute does not require it. And if a child’s parents have the financial ability to pay restitution to a victim at the time of intake, the need for restitution will not weigh in favor of filing a delinquency petition.
These same discretionary factors come into play again if the case does go to court. The more stable the child’s family situation in terms of employment, housing, and general financial wherewithal, the more likely DJS will recommend that a child be released to the custody of a parent rather than detained in a DJS facility or placed on community supervision. If a child is found to be involved in a juvenile act after an adjudicatory hearing or plea, the child cannot be found to be a “delinquent child” unless that child also “requires guidance, treatment, or rehabilitation.” DJS is more likely to recommend a NINOS (not in need of services) finding by the court if the child’s parents can afford private counseling or treatment and make restitution, if applicable. If DJS is on the fence as to recommending probation or commitment to a DJS out of home facility, once again the resources and stability of the child’s home could make the difference. The discretionary factors weighed by DJS (and ultimately the court) to determine whether a juvenile case should be waived to adult criminal court or an adult criminal case involving a juvenile defendant should be transferred back to juvenile court also can be influenced in subtle ways by the systemic effects of racism and the wealth gap it creates.
Even the most dedicated and most well intentioned DJS officers (as well as the other actors in the juvenile justice system) cannot escape these realities. Next time, I will look at how the schools, police, and prosecutors influence juvenile cases that favor some and disfavor others.
Judge Gary E. Bair (Ret.)
Of Counsel, RaquinMercer LLC