Updated at 3:24 p.m. Thursday
Cook County State’s Attorney Kim Foxx’s office was in court Wednesday arguing that judges need to be allowed to place children younger than 13 in jail.
Assistant State’s Attorney Veronica Calderon Malavia told a three-judge appeals panel that a Cook County ban on jailing young children conflicts with state law. And she said the county board had not provided an alternative for judges “when a secure facility is needed” because a child is “out of control” and a danger to himself and the public.
Her statement came during oral arguments over the ordinance, which the county’s top juvenile judge ruled against in a 2018 decision involving two 12-year-old boys.
On Wednesday, Cook County Assistant Public Defender Armando Sandoval, who represents one of the boys, told the appellate judges that the county passed the ordinance to protect young children, and that it had the authority to do so.
“The county heard from experts and realized there is a greater risk” in locking a 12-year-old up than in treating him outside of jail, Sandoval said.
In a statement, Cook County State’s Attorney spokeswoman Tandra Simonton said they are “not advocating” that children under 13 should be placed in jail. However, she said “after reviewing the court’s previous ruling regarding this matter, we agree with the court’s conclusion” that the county ordinance cannot preempt state law.
“We believe that the best legal remedy to address this issue is through legislation and amendment of the Juvenile Court Act,” Simonton said.
Aviva Bowen, also with the state’s attorney’s office, said as a party to the case, they were “obligated” to tell the appeals court their legal opinion.
Brandy Brixy, chief of the Cook County public defender’s juvenile justice division, said both boys involved in the 2018 decision are now out of the juvenile jail, and only one 12-year-old child has been placed in the jail since then “for a very brief amount of time.”
Brixy said, for the most part, juvenile court judges work to keep such young kids out of jail. But she said the ordinance is “still essential” because of how extremely harmful it is for any child under 13 to be locked up.
“Based on what we know about cognitive development, and adolescent brain development, kids are very affected by trauma. … And to put a youth, especially under the age of 13, into the juvenile detention center, to take them away from their families, to lock them up even for one day can have such an adverse effect on the minor,” Brixy said. “Also they can be influenced by older peers that instead of protecting the community or protecting [the child] by doing this, they are learning more criminal behavior or they are becoming more traumatized.”
Commissioner Larry Suffredin, who sponsored the ordinance, said the goal of the legislation is to protect children and improve public safety.
“If we're trying to help children avoid having troubled adulthood, we need to help those who find themselves in distressing situations in the juvenile court system,” Suffredin said. “And all the research shows that if you incarcerate someone who's younger, the opportunities for them to get beyond that are just very, very slim.”
Two of the three judges on the panel asked questions that suggested they side with judges and prosecutors who argue for preserving the right to lock up 10, 11 and 12-year-olds.
At one point, Judge Daniel Pierce asked Sandoval how the county could be “protecting” children by prohibiting them from being placed in detention.
How is that protecting a minor if a court has found that a minor needs detention? Pierce asked.
The appeals court is not expected to announce its decision for at least a month.
Brixy said if the judges rule against the ordinance, they plan to appeal to the Illinois Supreme Court.
Patrick Smith is a reporter on WBEZ’s Criminal Justice desk. Follow him @pksmid.