Illinois appeals court ponders: Can Cook County bar detention of pre-teens?

The Cook County Board of Commissioners passed an ordinance last September barring the detention of children under 13. But a Cook County judge ruled that ordinance improperly restricted judicial discretion. On Wednesday, an Illinois Appeals Court panel took up the issue.

The Cook County public defender asked a panel of Illinois Appellate Court judges on Wednesday to overturn a ruling by Cook County Judge Michael Toomin that county officials could not bar judges from ordering youth under the age of 13 held in custody.

At issue is a ruling by Toomin, the presiding judge of the juvenile division, that a Cook County Board of Commissioners ordinance barring pre-teenagers from being held in custody was invalid, because, he said, it conflicts with Illinois law.

Toomin’s ruling came in the case of a youth identified only as M.H., one of two youths whom Toomin ordered held in the Cook County Juvenile Temporary Detention Center despite the ordinance, which was passed by the county unanimously.

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After the board passed the ordinance last fall, commissioner Larry Suffredin called the action “very significant,” citing research that, he said, proves detention for pre-teenagers created “a traumatic experience.”

He added, “A child put into this situation is going to be damaged for a very long time, and society may pay the price for the mistake we made earlier in that child’s life.”

At issue was Toomin’s subsequent ruling that the county board lacked the power to pass an ordinance in conflict with state law that gave judges discretion.

Appellate Judge Daniel Pierce, one of the three member panel, seemed sympathetic to the argument by prosecutors that the  Juvenile Court Act (JCA) allows judges the authority to order detention pre-trial for minors. “This [the county ordinance] is in direct conflict with what the JCA says judges can do,” said Pierce at one point.

Another member of the panel, Appellate Judge Michael B. Hyman, appeared to take a contrary view, saying the lack of age specificity in the County Shelter Care and Detention Home Act has left the issue “silent” or untouched.

“If it’s silent, then under the constitution of Illinois, home rule applies,” said Hyman. He also listed alternatives to detention, such as electronic monitoring, home detention, crisis management, counseling, and other resources.

Hyman noted prosecutors had initially not challenged the county ordinance, and only belatedly argued in favor of judges retaining the right to hold pre-teenagers in custody and challenged their interpretation of the law. “Home rule would mean nothing under the State’s interpretation,” he said.

Appellate Judge John C. Griffin presided over the hearing where Toomin’s decision, and ultimately the county ordinance, were under review.

Judge Toomin, through the Cook County Circuit Court’s spokesperson, declined to comment on the matter, noting state court rules prohibit judges from commenting on pending litigation.

In an interview after the hearing, Shobha L. Mahadev, Clinical Associate Professor of Law at the Children and Family Justice Center (CFJC) at Northwestern University School of Law, noted, “Detention almost always makes things worse for a kid … If we have reached the point where we think detention is the only option, we should reimagine what the options should be.”