Criminal Law Blog

D.C. Council: The presumption is in favor of release of juveniles. DCCA: No, seriously, it is.

In re K.G.
 (decided February 15, 2018)

Players: Associate Judges Beckwith and Easterly, Senior Judge Ruiz. Opinion by Judge Easterly.  PDS for K.G. Trial Judge: Jennifer M. Anderson.

Facts:  K.G., a child, plead involvement to a count of possession of cocaine, and returned to his grandmother's custody pending disposition.  K.G. was later arrested for new drug offenses that were allegedly committed after he turned 18, and thus were charged in adult court.  Although K.G. had been released in his adult case five weeks earlier, the Office of the Attorney General asked him to be placed in secured detention.  The court granted this request, finding that K.G. was a "significant danger to others."  First, the court noted that distribution of cocaine is defined as a "dangerous crime" under the adult detentions statute.  The court also relied on "technical violations" of K.G.'s supervision, such as curfew violations, failure to enroll in drug treatment, and failure to complete computer training.

K.G. filed an interlocutory appeal pursuant to D.C. Code § 16-2328(a).

Issue: Was detention of K.G. authorized by the juvenile detention statute?

Holding:  No. The DCCA provided guidance on amendments to the juvenile detention statute, D.C. Code § 16-2310, that went into effect in April 2017.  Section 16-2310 now further restricts a judge’s authority to order detention.  Under the amended statute, a child can only be detained if that child represents a “significant harm” to the person or property of others, or is a flight risk. Until this case, there was no answer to the question about what exactly “significant harm” means.

The DCCA explained that a child can be detained only if “their particular behavior could cause direct, significant harm to the person or property of a particular individual (or individuals).”  Further, a “generalized harm to the District community at large” is insufficient for detention.  This language brings many changes to the way children were previously detained in juvenile court.

First, technical violations such as not attending school or class, positive drug tests, failing to enroll in drug treatment, or curfew violations are the types of behaviors that are insufficient for detention under § 16-2310, and therefore they are not to be considered in a detention analysis. Second, the standard means that the presumption against detention is much stronger and has teeth. Third, in cases that do not involve a firearm, the court must look to “case specific information” to make the significant harm finding.  Fourth, although the DCCA does not prescribe a particular formula for what behavior would amount to a significant harm, we know that at least a kid on release pending disposition after pleading guilty to possession of cocaine, who was rearrested on adult distribution of cocaine charges, and had technical violations (school, curfew, and drug testing) is not a significant harm to the person or property of others.

Of Note:

  • Any attorney practicing in juvenile court needs to read K.G. in full to understand its impact on juvenile detention.
  • A quick word on procedure regarding D.C. Code § 16-2328: The DCCA made it clear that a detained child, whose case is pre-trial or pre-disposition, is entitled to an emergency interlocutory appeal under § 16-2328. However, § 16-2328 only applies to the original order detaining the child order by a family court judge and not to later orders denying motions for reconsideration of detention. Because § 16-2328(a) requires the notice of appeal to be filed within two days of the detention order, defense counsel must make a quick decision as to whether to appeal.  The filing of an appeal does not bar defense counsel from also moving to reconsider the detention ruling in the trial court.—Terrence Austin, guest blogging.

Read the full opinion here.