DAR File No. 42054

Governor, Criminal and Juvenile Justice (State Commission on)

Rule R356-4

Juvenile Confinement

Notice of 120-Day (Emergency) Rule

DAR File No.: 42054
Filed: 09/01/2017 01:56:42 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to establish standards and certification procedures for the detention of juveniles in adult jails and lockups consistent with the requirements of the Juvenile Justice and Delinquency Prevention Act (JJDPA).

Summary of the rule or change:

This rule transfers adult jail and lockup certification authority from Juvenile Justice Services (JJS) to the State Commission on Criminal and Juvenile Justice (CCJJ) and replaces Rule R547-3, Juvenile Jail Standards, and Rule R547-7, Juvenile Holding Room Standards. (EDITOR'S NOTE: A corresponding proposed new Rule R356-4 is under Filing No. 42055 in this issue, September 15, 2017, of the Bulletin.)

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

Justification: Without this rule, the state of Utah may be in violation of the Juvenile Justice and Delinquency Prevention Act (JJDPA), as amended in 2002.

Statutory or constitutional authorization for this rule:

• Section 62A-7-201
• Subsection 63M-7-204(1)(s)

Anticipated cost or savings to:

the state budget:

After conducting a thorough analysis, there will be no impact to the state budget.

local governments:

After conducting a thorough analysis, there will be no impact to local government.

small businesses:

After conducting a thorough analysis, there will be no impact to small businesses.

persons other than small businesses, businesses, or local governmental entities:

After conducting a thorough analysis, there will not be any other persons affected by the new rule.

Compliance costs for affected persons:

CCJJ will pay for any administrative costs out of existing budgets. This includes an allocation for compliance monitoring and for the Juvenile Jail Removal Program.

Comments by the department head on the fiscal impact the rule may have on businesses:

After conducting on a thorough analysis, it was determined that this proposed rule will not result in a fiscal impact to businesses.

Ron Gordon, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Governor
Criminal and Juvenile Justice (State Commission on)
Room Suite 330 Senate Building
State Capitol Complex
420 N State Street
Salt Lake City, UT 84114

Direct questions regarding this rule to:

• Darien Hickey at the above address, by phone at 801-538-1754, by FAX at , or by Internet E-mail at [email protected]

This rule is effective on:

09/01/2017

Authorized by:

Ronald Gordon, Executive Director

R356. Governor, Criminal and Juvenile Justice (State Commission on).

R356-4. Juvenile Detention or Confinement in Adult Jails and Lockups.

R356-4-1. Authority and Purpose.

(1) This rule is authorized by Sections 62A-7-201 and 63M-7-204(1)(s).

(2) The purpose of this rule is to establish standards and certification procedures for the detention or confinement of juveniles in adult jails and lockups consistent with the requirements of the JJDPA.

 

R356-4-2. Definitions.

Terms used in this rule include:

(1) "compliance monitor" means the Commission on Criminal and Juvenile Justice's JJDPA Compliance Monitor;

(2) "adult jail" means a locked facility, administered by State, county or local law enforcement and correctional agencies, the purpose of which is to detain adults charged with violating criminal law, pending trial, including facilities used to hold convicted adult criminal offenders sentenced for less than one year, but not including a court holding facility;

(3) "adult lockup" means a locked facility similar to an adult jail except that an adult lockup is generally a municipal or police facility of a temporary nature which does not hold persons after they have been formally charged, not including a court holding facility;

(4) "detain or confine" means to hold, keep, or restrain a person such that the person is not free to leave, or such that a reasonable person would believe that the person is not free to leave, except that a juvenile held by law enforcement solely for the purpose of returning the juvenile to the juvenile's parent or guardian or pending the juvenile's transfer to the custody of a child welfare or social service agency is not detained or confined within the meaning of this definition;

(5) "JJDPA" means the Juvenile Justice and Delinquency Prevention Act found in 42 U.S.C. Sec. 5633;

(6) "juvenile" means a child under the age of 18 years old;

(7) "juvenile facility" means a shelter, detention facility, receiving center, or other youth services center, as defined by Section 62A-7-101;

(8) "low density population" means ten or less people per square mile;

(9) "medical emergency" means any health condition, which requires immediate attention by medical professionals;

(10) "sight and sound separation" means incarcerated juveniles must be located or arranged as to be completely separated from incarcerated adults, including adult inmate trustees, by sight and sound barriers to prohibit:

(a) clear visual contact between incarcerated adults and juveniles within close proximity to each other; and

(b) direct oral communication between incarcerated adults juveniles; and

(11) "status offense" means a violation of the law that would not be a violation of the law but for the age of the offender.

 

R356-4-3. Detention or Confinement of a Juvenile in an Adult Jail or Lockup.

(1) A juvenile may be detained or confined in an adult jail or lockup only if:

(a) all other options for placement have been exhausted and there is no alternative that will protect the juvenile or the community;

(b) the requirements outlined in Utah Administrative Code R547-13-4 Guidelines for Admission to Secure Youth Detention Facilities are met;

(c) the adult jail or lockup provides for the sight and sound separation of juvenile and adult inmates;

(d) the purpose of the detention or confinement is:

(i) identification;

(ii) interrogation;

(iii) processing;

(iv) notification of juvenile court officials; or

(v) to allow adequate time to arrange the juvenile's:

(A) transfer to a juvenile facility if appropriate ; or

(B) release to a parent or other responsible adult; and

(e) the adult jail or lockup has been certified by the compliance monitor.

(2) A juvenile may not be detained or confined in an adult jail or lockup for any of the following reasons:

(a) ungovernable or runaway behavior;

(b) neglect, abuse, abandonment, dependency, or other situation, which requires protection of the juvenile;

(c) status offenses, not including offenses involving weapons; or

(d) attempted suicide.

(3) This rule does not apply to a juvenile:

(a) charged with a crime under Section 78A-6-701;

(b) bound over to the jurisdiction of the district court as a serious youth offender under Section 78A-6-702; or

(c) certified to stand trial as an adult pursuant to Section 78A-6-703.

(4) A juvenile under the age of 12 may not be detained or confined in an adult jail or lockup unless the juvenile:

(a) is age 10 or 11; and

(b) has been charged with a violent felony violation under Section 76-3-203.5(c).

(5)(a) A juvenile detained or confined in an adult jail or lockup shall be released to the care of a parent or other responsible adult unless:

(i) the immediate welfare or the protection of the community requires the continued detention or confinement of the juvenile; or

(ii) it is unsafe for the juvenile or the public to release the juvenile to the care of the parents, guardian or custodian.

(b) If the juvenile should continue to be detained or confined, the adult jail or lockup shall arrange for the transfer of the juvenile to an appropriate juvenile facility as soon as practicable.

(c) If a juvenile is transferred to a juvenile facility, a report shall be prepared which indicates the reason why the juvenile was not released and detention or confinement was continued.

(6) In addition to any other requirements under this rule, a juvenile may not be detained or confined in an adult jail unless:

(a) the adult jail is located in an area with a low-density population;

(b) the county in which the adult jail is located does not have a juvenile facility that meets the needs of the juvenile; and

(c) the detention is less than 6 hours.

(7) In addition to any other requirements under this rule, a juvenile may not be detained or confined in an adult lockup for more than two hours.

 

R356-4-4. Standards for Adult Jails and Lockups Where Juveniles Are Detained or Confined.

(1) When a juvenile is detained or confined in an adult jail or lockup, the adult jail or lockup shall:

(a) immediately notify the parents, guardian, or custodian of the juvenile's detention or confinement unless the parents, guardian, or custodian have already been notified; and

(b) arrange for the transfer or release of the juvenile as quickly as possible.

(2) An adult jail or lockup where a juvenile is detained or confined shall meet all applicable state and local:

(a) zoning laws;

(b) safety, fire, and building codes; and

(c) health codes.

(3) An adult jail or lockup shall provide to a juvenile:

(a) access to a toilet and a washbasin with hot and cold running water;

(b) shelter, heat, light, and ventilation that does not otherwise compromise security or enable escape;

(c) access to a drinking fountain; and

(d) basic furnishings, such as chairs or benches.

(4) The number of juveniles in an adult jail or lockup may not exceed the certified capacity for juveniles.

(5) There shall be no viewing devices in an adult jail or lockup, such as peepholes or mirrors, of which the juvenile is not aware.

(6) As long as classification standards are met, juveniles may be detained or confined together in an adult jail or lockup if age, compatibility, dangerousness, and other relevant factors are considered, except juveniles of different genders may not be detained or confined together.

(7) No detainee in an adult jail or lockup, whether juvenile or adult, shall be allowed to have any authority or disciplinary control over, be permitted to supervise, or provide services of any nature to a juvenile.

(8) When a juvenile is detained or confined in an adult jail or lockup, the adult jail or lockup shall:

(a) remove any items from the juvenile that could compromise the juvenile's safety, such as belts, shoelaces, and suspenders, prior to placing a juvenile in an adult jail or lockup;

(b) provide constant on-site supervision of the juvenile through visual monitoring and audio two-way communication;

(c) ensure a certified police officer or staff member who has received training about juveniles is available to provide assistance within 60 seconds should a problem or medical emergency arise with a juvenile;

(d) conduct frequent personal checks on the juvenile at least once every fifteen (15) minutes to maintain communication and prevent the juvenile from experiencing panic or feelings of isolation; and

(e) make a written record of significant incidents and activities of the juvenile.

(9) A staff member of the same gender shall supervise a juvenile's personal hygiene activities or care such as showering, using the toilet, and related activities in an adult jail or holding cell.

(10) An adult staff member of the same gender as the juvenile shall be present when a juvenile is securely detained or confined.

(11)(a) Except in an emergency, a staff member entering a juvenile's sleeping room shall be of the same gender as the juvenile.

(b) If two staff members enter a juvenile's sleeping room, there may be one male and one female staff member.

(c) When an emergency prevents a staff member of the same gender from entering the juvenile's sleeping room, at least two staff members shall be present and a written report shall be completed which indicates why a staff member of same gender was unavailable.

(12)(a) Any physical contact or examination of a juvenile conducted in an adult jail or lockup, such as a strip search, shall be done:

(i) by a staff member of the same gender;

(ii) in private; and

(iii) without camera monitoring.

(b) A strip search of a juvenile may only be performed when the following conditions exist:

(i) the juvenile is believed to be under the influence of alcohol or a controlled substance;

(ii) the juvenile is suspected of a controlled substance or weapons offense; or

(iii) there is reasonable suspicion the juvenile may be concealing contraband that could not be detected by a pat-down search or handheld metal detector.

(c) Body cavity searches are prohibited.

(13) Juveniles may not be subject to corporal or unusual punishment, humiliation, or mental abuse.

(14)(a) Restraints or physical force shall not be used to subdue a juvenile unless it is justifiable self-defense, required for the protection of persons or property, or necessary to prevent escape.

(b) Restraints or physical force may only be used to control juveniles in accordance with the principle of least restrictive action.

(c) Physical force may not be used as punishment.

(d) A written report shall be prepared following any use of force and submitted to the adult jail or lockup administrator.

(15) An adult jail or lockup shall safeguard a juvenile's health and safety by:

(a) making emergency medical services available 24 hours a day;

(b) immediately examining and treating, if appropriate, juveniles injured in an adult jail or lockup;

(c) not accepting juveniles who are unconscious, seriously injured, at risk for suicide, emotionally disturbed, or under the influence of alcohol or controlled substances and are unable to care for themselves, until they have been examined by a qualified medical practitioner or have been taken to a medical facility for appropriate diagnosis and treatment and released back to the adult jail or lockup;

(d) providing training to all staff members to recognize symptoms of mental illness;

(e) recording any medical services provided to a juvenile; and

(f) providing for detoxification of a juvenile in an adult jail or lockup only when there is no community health facility available for detoxification.

(16) An adult jail or lockup shall comply with any applicable informed consent requirements for medical care and shall seek the informed consent of a parent, guardian, or legal custodian unless otherwise ordered by a juvenile court judge or deemed a medical emergency.

(17) If a juvenile is in need of hospitalization, a staff member shall remain with the juvenile if otherwise permitted by medical personnel or until an adult family member or legal guardian arrives to remain with the juvenile.

(18) A juvenile in an adult jail or lockup shall have the same legal and civil rights, including the right to the same number of telephone calls, as an adult inmate held for the same amount of time.

(19) A juvenile's visitors in an adult jail or lockup should be limited to the juvenile's attorney, clergy, and officers of the court unless the juvenile is to be transferred to a juvenile facility in which case an effort shall be made to provide for visitation by the juvenile's parents, guardian, or custodian prior to the transfer.

(20) If a juvenile is detained or confined during daylight hours, the juvenile should be allowed access to reading materials, physical exercise, recreation, radio or television if feasible.

(21) When a juvenile arrives at an adult jail or lockup, a juvenile shall be informed of the steps in the detention process.

(22) Upon admission to an adult jail or lockup, a referral or intake form must be completed for the juvenile, which includes:

(a) the date and time of the admission and release;

(b) the name, nicknames, and any aliases of the juvenile;

(c) the juvenile's last known address;

(d) information regarding the officer who admitted the juvenile, including the officer's name, title, and law enforcement agency;

(e) the allegations upon which the juvenile is being detained;

(f) the juvenile's gender;

(g) the juvenile's date and place of birth;

(h) the juvenile's race or nationality;

(i) any medical problems of the juvenile;

(j) the juvenile's parents, guardian, or a responsible adult to notify in case of emergency, including addresses and telephone numbers;

(k) any additional remarks, such as any open wounds or sores requiring treatment, evidence of disease or body vermin, or tattoos; and

(l) the juvenile's probation officer or caseworker, if assigned.

(23)(a) When a juvenile is released or transferred from an adult jail or lockup, the adult jail or lockup shall create a release or transfer report, which documents the following information:

(i) the juvenile's physical and emotional condition upon release; and

(ii) whether the juvenile was released from custody or was transferred to a different facility.

(b) If the juvenile was transferred to a juvenile facility, the release or transfer report shall document:

(i) the name of the facility to which the juvenile was transferred; and

(ii) the name and agency of the individual who transferred the juvenile.

(c) If the juvenile was released from custody the release or transfer report shall document:

(i) the name and relationship of the adult assuming the responsibility of the juvenile;

(ii) the form of identification used by the adult assuming responsibility of the juvenile; and

(iii) the signature of the adult assuming responsibility for the juvenile, indicating the adult is:

(A) aware of the juvenile's physical and emotional condition;

(B) understands the reason for detaining or confining the juvenile in custody; and

(C) agrees to take the juvenile to court at a time to be set by the court.

(24) Upon release or transfer of a juvenile from an adult jail or lockup, the adult jail or lockup shall verify:

(a) identity;

(b) the release papers; and

(c) property belonging to the adult jail or lockup or other residents does not leave the jail or holding cell with the juvenile.

(25) A case record shall be securely maintained on each juvenile, which contains:

(a) the initial intake information form;

(b) documentation of why the juvenile was detained or confined in the adult jail or lockup and released or transferred;

(c) a copy of any incident reports;

(d) a record of any of the juvenile's cash or valuables held by the jail or holding cell;

(e) documentation of all visitors' names and the dates of the visit;

(f) documentation of any medical/health care issues or conditions exhibited during the detention;

(g) record of any medical treatment or medications administered while the juvenile was detained or confined;

(h) consent for necessary medical or surgical care, signed by parent, person acting in loco parentis, juvenile court judge, or facility official; and

(i) the final release or transfer report.

 

R356-4-5. Certification of Adult Jails or Lockups Where Juveniles Are Detained or Confined.

(1) An adult jail or lockup seeking to be certified to detain or confine juveniles shall send a completed JJDPA Facility Certification Application to the compliance monitor.

(2) The compliance monitor shall conduct an on-site visit at any adult jail or lockup, which applies to be certified to detain or confine juveniles.

(3) During the on-site visit, the compliance monitor shall:

(a) review all of the policies and procedures of the adult jail or lockup, which relate to the detention or confinement of juveniles to ensure they meet the requirements of this rule;

(b) tour the adult jail or lockup to ensure compliance with the requirements of this rule; and

(c) meet with all individuals involved in overseeing and completing records related to the detention or confinement of juveniles.

(4) If an adult jail or lockup meets the requirements of this rule, the compliance monitor shall issue a certificate to the adult jail or lockup, which is good for one year.

(5) Once an adult jail or lockup is certified, the adult jail or lockup shall submit a Juvenile Confinement Monthly Report to the compliance monitor at the conclusion of each month, which documents the number of juveniles, detained or confined in the adult jail or lockup during the preceding month and provides information on each juvenile.

(6) Prior to an adult jail or lockup's certification expiring, the compliance monitor shall initiate a recertification visit to the adult jail or lockup.

(7) During a recertification visit, the compliance monitor shall:

(a) review any changes or updates to the policies and procedures of the adult jail or lockup related to the detention or confinement of juveniles;

(b) tour the adult jail or lockup to ensure continued compliance with the requirements of this rule;

(c) meet with all individuals involved in overseeing and completing records for the detention or confinement of juveniles; and

(d) review the adult jail or lockup's Juvenile Confinement Monthly Reports for the past twelve months to ensure compliance with the requirements of this rule.

(8) If an adult jail or lockup meets all of the requirements for recertification, the compliance monitor shall issue a new certificate, which shall be valid for one year.

(9) If the certification of an adult jail or lockup has been expired for more than two years, the adult jail or lockup shall re-initiate the certification process.

 

KEY: juvenile detention in adult jails; juvenile confinement in adult jails; juvenile detention in lockups; juvenile confinement in lockups

Date of Enactment or Last Substantive Amendment: September 1, 2017

Authorizing, and Implemented or Interpreted Law: 62A-7-201; 63M-7-204