Maryland's Department of Juvenile Services is recommending that lawmakers decide how young is too young for a youth to be in a state detention center. It's one of several ways officials have proposed to minimize the impact of the department's controversial strip-search and shackling policies.
A legislative task force postponed a vote Thursday on that and other recommendations it will consider sending the General Assembly. The group of advocates, lawmakers and state officials continues to wrestle with how far the department should go to curb its practice of strip-searching and shackling children and teens in their custody.
But lawmakers were encouraged that at least one bill with the department's backing could come out of the task force.
The department previously supported legislation to prohibit detaining youths under the age of 12. A written recommendation presented to the task force Thursday did not specify an age, but a spokeswoman said the agency thinks that "the General Assembly should address who is eligible for detention."
Del. Jay Jalisi sponsored legislation this year to limit strip-searches and shackling. The bill was amended to create the task force, which has been meeting since September.
Jalisi said the department's ability to legally detain a child as young as 7 years old is among his chief concerns.
"Children under the age of 13 shouldn't be strip-searched and shackled before being convicted of anything," he said.
Current department policy requires every youth who enters a state-run detention center to be strip-searched at intake and after any contact with the public. Most youths transported by a department staffer are shackled.
In the most recent fiscal year, state officials said, two 10-year-olds were detained briefly — one for 21/2 days, the other for 21/2 hours — and both were strip-searched.
The majority of youths detained by the agency are 15 to 17 years old.
"I think we're moving in the direction," Jalisi said. With the department's support, "we could get legislation passed."
But Juvenile Services Secretary Sam Abed said he did not believe legislation was necessary to alter some practices.
The task force was created to review department policy and recommend reforms after some lawmakers sought to halt the widespread use of strip-searches and shackling. The practices are considered invasive and harmful to children and had been protested by Maryland's juvenile justice monitor for years.
The legislation followed a Baltimore Sun investigation that detailed the routine strip-searching and shackling of youths in state custody. That includes low-level offenders who are detained briefly and youths who had not yet been found delinquent.
The department recommended several policy changes Thursday. It proposed eliminating the automatic strip-searching of youths after attorney and family visits, unless there is reasonable suspicion. It also recommended not strip-searching youths who are under the department's supervision while traveling outside of facilities. And they recommended giving gowns to youths who are being strip-searched.
The department has also proposed that youths not be shackled while being transported for home visits. The agency is exploring setting up a unit dedicated to transporting youths without shackles. It's also looking at using video conferencing to cut down on the number of times a youth has to be transported to court.
The department would collect data on strip-searches and shackling during transport.
"These are all procedural changes that we're committed to making," Abed said. "Legislating procedures is bad practice ... because we have to be responsive to situations as they arise."
But state Sen. C. Anthony Muse, who sponsored Jalisi's strip-search and shackling bill in the Senate, said some policies need to be codified in state law — in part to ensure that reforms are carried out.
"We're not out to legislate everything," said Muse, a Prince George's County Democrat. "But long after I'm gone, the secretary's gone, something's got to be passed down."
State Sen. Justin Ready, a Carroll County Republican and task force member, opposes legislating details like what is considered contraband. Some task members believed that such a list was necessary to reduce the subjectivity of "reasonable suspicion."
"If you're trying to put a list in law, you're going to run into problems," Ready said, adding that the definition of contraband could change over time.
Task force members urged Abed to go further.
Nick Moroney, head of the Juvenile Justice Monitoring Unit, said giving a youth a gown did not address the issue of strip-searches.
"Handing somebody a gown is not the same as making sure staff isn't staring at a kid stark naked," he said.
Deborah St. Jean, who heads the Juvenile Protection Division in the state public defender's office, said she believed having youths appear in court via a video conference threatened their constitutional rights.
St. Jean said the change would prevent private communication between attorneys and clients during hearings. She also said that for youths who are sent two to four hours from home, it's one of the only times they get to have contact with their families.
"It's necessary and essential for kids to be able to communicate," St. Jean said. "From a due-process point of view … it's not fair to children."
Gavin Patashnick, head of the juvenile division in the Baltimore state's attorney's office, testified that he believed the recommendation would eliminate some of the fear and anxiety of going to court.
He said the state's attorney's office endorsed Abed's recommendations and believed they "strike a very healthy and productive balance."
The department said it would also develop procedures for out-of-state travel.
Del. Elizabeth G. "Susie" Proctor, a Democrat who represents Charles and Prince George's counties, said she would like the department to set limits on the length of time youths are held in shackles. In one case, a youth was shackled during a 20-hour-trip to Florida, including when she used the bathroom and ate meals.
Proctor recommended a five-minute-break for every hour, and that a youth have one hand free to eat and use the bathroom.
"That would be the humane thing to do," Proctor said. The department is considering keeping a youth in shackles for out-of-state travel only if they have a history of attempting to escape or have said they will make an attempt.
The task force is scheduled to begin voting on a recommendations next month.