A fundamental rule of our constitutional system is that a person may not be subjected to extended detention absent a judicial determination of probable cause that he or she committed a crime. In Gerstein v. Pugh, the Supreme Court recognized the Fourth Amendment right of criminal defendants to a prompt determination of probable cause in cases involving warrantless arrest. In County of Riverside v. McLaughlin, the court clarified that, generally speaking, a determination of probable cause made within 48 hours of arrest would meet the requirement of promptness (hereafter referred to as “the 48-hour rule”).

In 1994, after County of Riverside v. McLaughlin was decided, the California Supreme Court reviewed California’s statutory scheme for probable cause determinations in juvenile delinquency cases in the context of a challenge to the Los Angeles Superior Court’s protocol on the issue. A plurality of the court in Alfredo A. v Superior Court, agreed that juveniles are entitled to a prompt probable cause determination, but disagreed that it must occur within 48 hours. Instead, the plurality viewed 72 hours as sufficiently prompt for children, based on a narrowing interpretation of California’s statutes, which on their face allow additional time for weekends and holidays. In the more than 20 years since the Alfredo A. opinion was released, a series of cases from other jurisdictions have held that 48 hours means just that, and the reasoning of the case is increasingly difficult to support. In the meantime, young people in California juvenile proceedings are routinely held for 3 to 7 days without a judicial determination that there is probable cause to hold them.

The article explains the importance of probable cause determinations, and the compelling reasons to minimize detention of juveniles. The article explains why the Alfredo A. decision was wrongly decided then and should be disapproved now. It goes on to urge that California should amend its statutory scheme to require probable cause determinations within 48 hours, and hold the initial detention hearing at the same time.

Read the full article, including footnotes, in the UC Davis Journal of Juvenile Law & Policy.

Sue Burrell

Sue Burrell is a Staff Attorney at the San Francisco-based Youth Law Center.  She began her legal career as a trial lawyer and juvenile appellate/training specialist for the Los Angeles County Public Defender, and as an appellate lawyer for the California State Public Defender. She joined the Youth Law Center in 1987, and since that time has worked to stem abuses in the juvenile system, and shift public policy toward services designed to produce better outcomes for young people. She has worked in California and around the country – serving as counsel in civil rights litigation and appellate cases; presenting at conferences and workshops; drafting and testifying on legislation; and writing and consulting on a wide range of juvenile justice issues. For more than a decade, Sue has worked with the Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative to reduce unnecessary incarceration of youth, and to assure that youth who are detained are held in safe, humane conditions.


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