by Barbara Fedders and Barbara Kaban
In 2004, over four thousand Massachusetts children and youth between the ages of seven and seventeen spent time behind bars -- in some cases up to four days -- after their arrest and prior to their first court appearance. While the law requires that young people must be at least fourteen years old to be detained, more than five hundred children under fourteen were so held that year.
Massachusetts law also provides that a party empowered by the judicial branch -- a judge, magistrate, or bail commissioner -- should review detention decisions about arrested youths, but many children and adolescents are unlawfully deprived of this opportunity. Routinely, decisions to detain young people are based solely on juvenile probation officers' recommendations, which are made pursuant to a cursory consideration of facts, and without benefit of written procedures or guidelines - all in violation of due process principles. Probation officers frequently recommend detention for youths accused of minor offenses, rather than reserving it for the most serious and dangerous offenders.
The impact of these practices is detrimental to the welfare of individuals in the juvenile justice system and communities at large. National studies have shown that arrested youths who are detained are more likely to re-offend than similarly situated youths who are not detained. Detention prior to the first court appearance is disproportionately ordered for youth of color, and the detained young people are held in facilities with poor conditions, often deprived of exercise and denied necessary medications. These practices undermine the mission of the Massachusetts juvenile court, which is to treat those who come before it not as criminals, but as children in need of aid and guidance.
Fortunately, this problem can be addressed relatively quickly and easily, without litigation. The Office of the Commissioner of Probation must establish explicit guidelines for the probation officers assigned responsibility for detention determinations. Police, sheriffs' departments and detention facility staff must ensure that youths have access to bail commissioners. These individuals must also cease the practice of detaining children under fourteen. Making these changes is essential to the integrity of the juvenile justice system. Nothing less than the well-being of our children is at stake.
Barbara Fedders, a clinical instructor at Harvard Law School, teaches and supervises students representing indigent adults and youth in the Massachusetts criminal and juvenile courts. She can be contacted at
Barbara Kaban, Deputy Director of the Children's Law Center, provides direct representation and appellate advocacy for indigent youth in the Massachusetts juvenile justice system. She can be contacted at