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Juvenile Probation: History, Duties, Liabilities and Immunities Tom C. Rawlings Director, Office of the Child Advocate State of Georgia

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Presentation on theme: "Juvenile Probation: History, Duties, Liabilities and Immunities Tom C. Rawlings Director, Office of the Child Advocate State of Georgia"— Presentation transcript:

1 Juvenile Probation: History, Duties, Liabilities and Immunities Tom C. Rawlings Director, Office of the Child Advocate State of Georgia

2 A Quick History of Probation Two hundred years ago Two hundred years ago Child under the age of seven was considered an “infant” incapable of criminal intent Child under the age of seven was considered an “infant” incapable of criminal intent Children as young as seven years could be held criminally responsible and possibly imprisoned (with adult offenders) or even executed for his offenses. Children as young as seven years could be held criminally responsible and possibly imprisoned (with adult offenders) or even executed for his offenses. Prosecuting a child between the ages of seven and 14 required proof the child had judgment or discernment; Prosecuting a child between the ages of seven and 14 required proof the child had judgment or discernment; When a child reached the age of 14, he was presumed an adult with full discernment and responsibility When a child reached the age of 14, he was presumed an adult with full discernment and responsibility State did not often interfere in the relationship between parent and child. State did not often interfere in the relationship between parent and child.

3 A Quick History of Probation John Augustus ( ), Father of Probation John Augustus ( ), Father of Probation Member of an Abstinence Society that believed drunks could be rehabilitated through moral persuasion Member of an Abstinence Society that believed drunks could be rehabilitated through moral persuasion In 1841, bailed out a drunkard and brought him back to court three weeks later sober. In 1841, bailed out a drunkard and brought him back to court three weeks later sober. Began an 18-year career as a volunteer probation officer. Began an 18-year career as a volunteer probation officer.

4 A Quick History of Probation Pre-1900: abandoned children (“foundlings”) warehoused in “almshouses” and orphanages Pre-1900: abandoned children (“foundlings”) warehoused in “almshouses” and orphanages : Huge influx of immigrants over-populates New York City, disrupted family structures, tenements, disease : Huge influx of immigrants over-populates New York City, disrupted family structures, tenements, disease 1853: Charles Lorring Brace starts the “Children’s Aid Society” of New York 1853: Charles Lorring Brace starts the “Children’s Aid Society” of New York ’s: “Orphan Trains” ferried 150,000+ west ’s: “Orphan Trains” ferried 150,000+ west

5 A Quick History of Probation 1874: Mary Ellen Wilson, 9, abandoned in New York City, enslaved, beaten daily by her “foster mother” 1874: Mary Ellen Wilson, 9, abandoned in New York City, enslaved, beaten daily by her “foster mother” No laws to protect children, no rights, viewed as property No laws to protect children, no rights, viewed as property Etta Wheeler got the American Society for the Prevention of Cruelty to Animals to go to court Etta Wheeler got the American Society for the Prevention of Cruelty to Animals to go to court Brooklyn court took protective custody, first ward of the court Brooklyn court took protective custody, first ward of the court The beginning of the child- welfare system as we know it today The beginning of the child- welfare system as we know it today

6 A Quick History of Probation “ I saw a child brought in … at the sight of which men wept aloud, and I heard the story of little Mary Ellen told … that stirred the soul of a city and roused the conscience of a world that had forgotten, and as I looked, I knew I was where the first chapter of children's rights was being written ” -- Jacob Riis, reporter, photo-journalist “ I saw a child brought in … at the sight of which men wept aloud, and I heard the story of little Mary Ellen told … that stirred the soul of a city and roused the conscience of a world that had forgotten, and as I looked, I knew I was where the first chapter of children's rights was being written ” -- Jacob Riis, reporter, photo-journalist 1875: Society for the Prevention of Cruelty to Children chartered by Henry Bergh (also ASPCA founder) 1875: Society for the Prevention of Cruelty to Children chartered by Henry Bergh (also ASPCA founder) 1922: 300+ SPCC chapters 1922: 300+ SPCC chapters Mary Ellen was raised by her rescuer’s sister, married at 24, 2 children who were teachers, died at 92 in Mary Ellen was raised by her rescuer’s sister, married at 24, 2 children who were teachers, died at 92 in 1956.

7 A Quick History of Probation 1899: First Juvenile Court in Cook County, IL; rapid expansion, 46 states with juvenile courts by : First Juvenile Court in Cook County, IL; rapid expansion, 46 states with juvenile courts by 1915 The Traditional Concept:Doctrine of “Parens Patriae,” in which Court is “In Loco Parentis” for child whose parents cannot control. The Traditional Concept:Doctrine of “Parens Patriae,” in which Court is “In Loco Parentis” for child whose parents cannot control. Court as Big Daddy Court as Big Daddy

8 A Quick History of Probation 1962: C.H. Kempe publishes “The battered-child syndrome” in the Journal of the American Medical Association 1962: C.H. Kempe publishes “The battered-child syndrome” in the Journal of the American Medical Association 1960’s and 1970’s: Explosion of interest in child abuse and neglect, medical & social-work research 1960’s and 1970’s: Explosion of interest in child abuse and neglect, medical & social-work research 1969: Protecting the Child Victim of Sex Crimes Committed by Adults, Vincent de Francis, American Humane Society; research, women’s movements, rape reform reveal prevalence of child sexual abuse 1969: Protecting the Child Victim of Sex Crimes Committed by Adults, Vincent de Francis, American Humane Society; research, women’s movements, rape reform reveal prevalence of child sexual abuse

9 A Quick History of Probation 1967: In re Gault, U.S. Supreme Court 1967: In re Gault, U.S. Supreme Court Gerald Frances Gault charged with making obscene phone calls Gerald Frances Gault charged with making obscene phone calls After a brief hearing without a defense attorney and without the usual formality of US adult criminal proceedings, he was committed to a juvenile detention center until his 21st birthday. After a brief hearing without a defense attorney and without the usual formality of US adult criminal proceedings, he was committed to a juvenile detention center until his 21st birthday.

10 A Quick History of Probation In re Gault: Supreme Court’s Decision In re Gault: Supreme Court’s Decision “The early conception of the Juvenile Court proceeding was one in which a fatherly judge touched the heart and conscience of the erring youth by talking over his problems, by paternal advice and admonition, and in which, in extreme situations, benevolent and wise institutions of the State provided guidance and help "to save him from a downward career." Then, as now, goodwill and compassion were admirably prevalent. But recent studies have, with surprising unanimity, entered sharp dissent as to the validity of this gentle conception.... [I]t would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase "due process." Under our Constitution, the condition of being a boy does not justify a kangaroo court. The traditional ideas of Juvenile Court procedure, indeed, contemplated that time would be available and care would be used to establish precisely what the juvenile did and why he did it--was it a prank of adolescence or a brutal act threatening serious consequences to himself or society unless corrected”. “The early conception of the Juvenile Court proceeding was one in which a fatherly judge touched the heart and conscience of the erring youth by talking over his problems, by paternal advice and admonition, and in which, in extreme situations, benevolent and wise institutions of the State provided guidance and help "to save him from a downward career." Then, as now, goodwill and compassion were admirably prevalent. But recent studies have, with surprising unanimity, entered sharp dissent as to the validity of this gentle conception.... [I]t would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase "due process." Under our Constitution, the condition of being a boy does not justify a kangaroo court. The traditional ideas of Juvenile Court procedure, indeed, contemplated that time would be available and care would be used to establish precisely what the juvenile did and why he did it--was it a prank of adolescence or a brutal act threatening serious consequences to himself or society unless corrected”.

11 § Duties of probation officers; liability A probation officer: (1) Shall make investigations, reports, and recommendations to the court as directed by this article; (2) Shall receive and examine complaints and charges of delinquency, unruly conduct, or deprivation of a child for the purpose of considering the commencement of proceedings under this article; (3) Shall supervise and assist a child placed on probation or in the protective supervision or care of such probation officer by order of the court or other authority of law; (4) Shall make appropriate referrals to other private or public agencies of the community.... A probation officer: (1) Shall make investigations, reports, and recommendations to the court as directed by this article; (2) Shall receive and examine complaints and charges of delinquency, unruly conduct, or deprivation of a child for the purpose of considering the commencement of proceedings under this article; (3) Shall supervise and assist a child placed on probation or in the protective supervision or care of such probation officer by order of the court or other authority of law; (4) Shall make appropriate referrals to other private or public agencies of the community....

12 § Duties of probation officers; liability (5) May take into custody and detain a child who is under the supervision or care of such probation officer as a delinquent, unruly, or deprived child if the probation officer has reasonable cause to believe that the child's health or safety or that of another is in imminent danger, or that the child may abscond or be removed from the jurisdiction of the court, or when so ordered by the court pursuant to this article. A probation officer may not conduct accusatory proceedings against a child who is or may be under such probation officer's care or supervision; (6) Shall perform all other functions designated by this chapter or by order of the court pursuant thereto. Any of the functions specified in this Code section may be performed in another state if authorized by the court located in this state and permitted by the laws of the other state; and (5) May take into custody and detain a child who is under the supervision or care of such probation officer as a delinquent, unruly, or deprived child if the probation officer has reasonable cause to believe that the child's health or safety or that of another is in imminent danger, or that the child may abscond or be removed from the jurisdiction of the court, or when so ordered by the court pursuant to this article. A probation officer may not conduct accusatory proceedings against a child who is or may be under such probation officer's care or supervision; (6) Shall perform all other functions designated by this chapter or by order of the court pursuant thereto. Any of the functions specified in this Code section may be performed in another state if authorized by the court located in this state and permitted by the laws of the other state; and

13 What’s the Frequency, Kenneth? Are probation officers judicial officers or executive officers? Are probation officers judicial officers or executive officers? Brown v. Scott (Georgia 1995): Brown v. Scott (Georgia 1995): Challenge to practice of Dekalb Police officers also serving as juvenile intake officers Challenge to practice of Dekalb Police officers also serving as juvenile intake officers Held that police officers cannot simultaneously serve as juvenile intake officers. Held that police officers cannot simultaneously serve as juvenile intake officers. Why not? Why not?

14 Brown v. Scott (Ga. 1995) Intake officers are judicial. Why? Intake officers are judicial. Why? The intake officer must determine whether the child is to be released or detained, prosecuted formally, or adjusted informally. The intake officer must determine whether the child is to be released or detained, prosecuted formally, or adjusted informally. In so doing, the intake officer screens the complaint and considers whether the court has jurisdiction, and whether the complaint is frivolous, or a petition should be filed. In so doing, the intake officer screens the complaint and considers whether the court has jurisdiction, and whether the complaint is frivolous, or a petition should be filed. This may result in a recommendation of dismissal, referral to another agency for services, or other appropriate action. This may result in a recommendation of dismissal, referral to another agency for services, or other appropriate action. “We have no hesitation in concluding that in performing these functions, the juvenile intake officer acts in a judicial capacity.” “We have no hesitation in concluding that in performing these functions, the juvenile intake officer acts in a judicial capacity.” In Georgia, as in many states, a person cannot constitutionally serve in two branches of government at the same time. In Georgia, as in many states, a person cannot constitutionally serve in two branches of government at the same time.

15 Immunity Public officials and employees whose jobs are classified as "quasi-judicial" are shielded from liability when they act in good faith within the scope of their employment. Public officials and employees whose jobs are classified as "quasi-judicial" are shielded from liability when they act in good faith within the scope of their employment. A quasi-judicial position is one that involves the exercise of discretionary, rather than ministerial, acts. A quasi-judicial position is one that involves the exercise of discretionary, rather than ministerial, acts. Discretionary actions require personal deliberation, decision, and judgment Discretionary actions require personal deliberation, decision, and judgment Ministerial actions require obedience to orders or the performance of a mandated duty. Ministerial actions require obedience to orders or the performance of a mandated duty. Quasi-judicial actions include discretionary acts such as gathering information in connection with an investigation and making decisions based upon that information Quasi-judicial actions include discretionary acts such as gathering information in connection with an investigation and making decisions based upon that information

16 § Duties of probation officers; liability (7) Other laws to the contrary notwithstanding, no county juvenile intake or probation officer or staff of the Department of Juvenile Justice serving as juvenile intake or probation officer shall be liable for the acts of any child not detained or taken into custody as provided in paragraph (5) of this Code section when, in the judgment of such officer, such detention or custody is not warranted. (7) Other laws to the contrary notwithstanding, no county juvenile intake or probation officer or staff of the Department of Juvenile Justice serving as juvenile intake or probation officer shall be liable for the acts of any child not detained or taken into custody as provided in paragraph (5) of this Code section when, in the judgment of such officer, such detention or custody is not warranted.

17 Faile v. S.C. Dep't of Juvenile Justice, 2002 Child placed back in his home by juvenile probation officer contrary to court’s order Child placed back in his home by juvenile probation officer contrary to court’s order Assaulted his sibling, parents sued DJJ Assaulted his sibling, parents sued DJJ Question: Did the probation officer have quasi-judicial immunity? Question: Did the probation officer have quasi-judicial immunity? “The United States Supreme Court extends absolute immunity to protect some quasi- judicial actors, such as prosecutors and witnesses, who perform judicial functions” “The United States Supreme Court extends absolute immunity to protect some quasi- judicial actors, such as prosecutors and witnesses, who perform judicial functions”

18 Faile v. S.C. Dep't of Juvenile Justice, 2002 South Carolina recognizes three exceptions to judicial or quasi-judicial immunity. South Carolina recognizes three exceptions to judicial or quasi-judicial immunity. Judges and other officials are not entitled to judicial immunity if: Judges and other officials are not entitled to judicial immunity if: they did not have jurisdiction to act; they did not have jurisdiction to act; the act did not serve a judicial function; the act did not serve a judicial function; the suit is for prospective, injunctive relief only. the suit is for prospective, injunctive relief only. Under the second exception, even judges are not insulated by judicial immunity when they act in an administrative capacity. Under the second exception, even judges are not insulated by judicial immunity when they act in an administrative capacity. In determining whether an act is judicial, the Court looks to the nature and function of the act. In determining whether an act is judicial, the Court looks to the nature and function of the act.

19 Faile v. S.C. Dep't of Juvenile Justice, 2002 If the individual is acting pursuant to a direct court order, courts are more likely to grant quasi-judicial immunity for that action. If the individual is acting pursuant to a direct court order, courts are more likely to grant quasi-judicial immunity for that action. “The placement of juveniles by a probation counselor is an administrative function” “The placement of juveniles by a probation counselor is an administrative function” Therefore, no quasi-judicial immunity Therefore, no quasi-judicial immunity

20 Mandated Reporters Are probation officers mandated reporters in your state? Are probation officers mandated reporters in your state? What’s the penalty? What’s the penalty? What’s the immunity? What’s the immunity? Is there a civil cause of action? Is there a civil cause of action?

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