Appeals Court Overturns Cook County Ban On Jailing 12-Year-Olds, Public Defender Vows Appeal

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A state appeals court has ruled against a Cook County ordinance banning the jailing of children under 13, writing in a new opinion that the county board does not have the authority to bar commitment to the juvenile jail when a judge has determined it is necessary.

The case was decided by a vote of 2-1. In the majority opinion, Justice Daniel Pierce wrote that “although very few minors under the age of 13” will ever face the possibility of detention, “it is all but a certainty there will be minors under the age of 13 accused of criminal activity” for whom jail will be the only option.

“Judges will make these gut wrenching decisions after learning as much as possible about the minor and giving consideration to available noncustodial alternatives and will order detention only after it is established that ‘it is a matter of immediate and urgent necessity for the protection of the minor or of the person or property of another,’” Pierce wrote, quoting from the Illinois statute on juvenile detention.

The Cook County Board of Commissioners passed a law last year prohibiting jail for pre-teens, but Juvenile Court Presiding Judge Michael Toomin ruled that judges did not have to follow the ordinance because it conflicted with state law. The Cook County Public Defender appealed the decision, and this week the appeals court sided with Toomin.

Brandy Brixy, the head of the public defender’s juvenile division, said they are “disappointed” and will appeal the decision to the Illinois Supreme Court.

Almost all of the stakeholders involved in the legal battle agree it is bad to lock up young children, and the judges fighting to preserve the option say it will be rarely employed.

Experts say detention is bad for the health, safety and wellbeing of young children, as well as detrimental to public safety.

The legal issue is murkier and more technical, having to do with the limits of Cook County’s home rule powers. As a home rule government, the county board has the right to make its own laws, so long as the state legislature has not explicitly banned the county from doing so.

The Cook County state’s attorney’s office argued against the county ordinance before the appeals court. Assistant State’s Attorney Veronica Calderon Malavia told the three judge panel that the ban on jailing young children conflicts with state law. And she said the county board had not provided an “alternative for a secure facility when a secured facility is needed for a minor who is most at risk, when he’s out of control.”

However, state’s attorney spokeswoman Aviva Bowen insisted they do not support jailing young kids.

“The Cook County State’s Attorney’s Office is not advocating that juveniles under the age of 13 should be detained and held in custody when charged with a crime,” Bowen said in a statement.

She said despite believing in the principle of the county ordinance, their office had come to a legal conclusion that the board “cannot preempt state law,” and so the state’s attorney had “the legal obligation” to present its opinion to the appeals court.

“We believe that the best legal remedy to address this issue is through legislation and amendment of the Juvenile Court Act,” Bowen said.

In the majority opinion, Justice Pierce writes that state law makes it clear the lower age limit for detention is 10 years old, and the county board has no power to alter that. But Brixy said judges “did a lot of mental gymnastics” to come to that determination.

Brixy said the dissenting opinion from Justice Michael Hyman basically lays out the argument the public defender will present to the state Supreme Court.

In his dissent, Hyman writes that the majority opinion “meanders” through “unrelated statutory provisions” and “cobbles together” legislative language to reach its conclusion. He writes that state law does not prohibit the county from raising the age allowed for its juvenile detention center.

Cook County Commissioner Larry Suffredin, who sponsored the original ordinance, took comfort in Hyman’s “strong dissent.”

“I’m hopeful that the Supreme Court will take this case and say that we have the right to manage the juvenile detention center,” Suffredin said.