Rule 13 - Pre-Adjudicatory Detention Factors for Delinquency Offenses(a) Mandatory Release. The court shall release the accused juvenile unless: (1) The charge is a category 1 offense;(2) The charge is a category 2 or 3 offense and there is a judicial finding that the juvenile presents a danger to the public if not securely detained;(3) The charge is a category 2 or 3 offense and the juvenile is an escapee from detention or any commitment setting ordered; or the juvenile has a recent record of willful failure to appear at juvenile court proceedings and no measure short of secure detention can be imposed to reasonably ensure appearance;(4) The charge involves a violation of an alternative method of disposition;(5) The juvenile is awaiting adjudication or disposition for an offense which would be a felony under criminal jurisdiction, and is charged with committing another offense during the interim period which would be a felony;(6) The juvenile is awaiting adjudication or disposition for an offense which would be a felony under criminal jurisdiction, and was released on bond conditions but is found by a judicial authority to have committed a material violation of bond; or(7) The juvenile has been determined to be a fugitive from another jurisdiction, and an official of such jurisdiction or an official from the West Virginia Interstate Compact Office has formally requested that the juvenile be placed in detention.(b) Bond. When mandatory release is applicable, such release may be upon appropriate bond conditions set by the court pursuant to Rule 11.(c) No Mandatory Detention. A juvenile who is excluded from mandatory release under subparagraph (a) is not to be automatically detained. No category of alleged conduct in and of itself may justify a failure to exercise discretion to release upon consideration of the needs of the juvenile and the community. (1)Discretionary Release. In every situation in which the detention of an arrested juvenile is permissible, the court shall first consider and determine whether the juvenile qualifies for an available diversion program or release under bond conditions, or whether any other form of control short of detention is available to reasonably reduce the risk of flight or misconduct. The court should explicitly state in writing the reasons for rejecting each of these forms of release.(2)Secure vs. Other Detention. When appropriate, the court shall consider staff-secure detention alternatives prior to committing a juvenile to a secure detention facility.(d) Threatening Witnesses. An additional ground for detention is a determination by the court that there exists a substantial likelihood of danger to one or more witnesses should the juvenile be released.(e) Delinquency Offense Categories for Detention Assessments.(1)Category 1 Offenses. Treason; Murder, 1st or 2nd Degree, or Felony Murder; Murder of Child; Kidnapping; Sexual Assault, 1st or 2nd Degree; Robbery; Malicious Assault; Possession with Intent to Deliver, or Manufacture or Delivery of Controlled Substances; Arson, 1st Degree; Sexual Abuse 1st Degree; Brandishing a Deadly Weapon; Possession or Carrying a Deadly Weapon by Minor; and Attempted Category 1 Offense.(2)Category 2 Offenses. Child Sexual Abuse; Incest; Child Abuse, Injurious; Child Neglect, Injurious; Burglary; Sexual Assault, 3rd Degree; Voluntary Manslaughter; Sexual Abuse, 2nd Degree; Unlawful Assault; and Attempted Category 2 Offense. (A) All other charges of criminal-type behavior which, in the case of an adult would be punishable by a sentence of not less than one year and if proven as a juvenile offense, could result in a commitment to a secure facility, but is not herein enumerated, will be considered under the terms and conditions of Category 2 offenses. (3)Category 3 Offenses. DUI (causing death or personal injury); Abduction; Extortion; DUI, 2nd or 3rd Offense; Possession or use of Explosives; Malicious Killing of Animal; Arson, 2nd, 3rd, or 4th Degree; Unlawful Shooting; Involuntary Manslaughter; Negligent Homicide (vehicular); Assault; Battery; Hit and Run Causing Personal Injury; Escape from Division of Juvenile Services Custody; Sexual Abuse, 3rd Degree; and Attempted Category 3 Offense.(f) Discretion to Release Even if One or More Factors are Met. Even if a juvenile meets one or more of the detention factors above, the court has broad discretion to release that juvenile following the detention hearing if other less restrictive measures would be adequate under the specific circumstances as determined by the court.COMMENTS
Unconditional vs. Conditional or Supervised Release. In order to minimize the imposition of release conditions on persons who would appear in court without them, and present no substantial risk in the interim, each judicial circuit should develop guidelines for the use of various forms of release based upon the resources and programs available, and analysis of the effectiveness of each form of release.