WHEN A YOUNG PERSON is convicted of a crime, Massachusetts and the federal government agree that they shouldn’t be put into the same custody as adult convicts. But one state law seems to treat young people charged with murder, but not convicted, like adults, requiring that juveniles who are facing trial on serious charges be held in custody with adults – something the state agrees is not acceptable even for those young people actually convicted of crimes. 

That law is facing an odd constitutional challenge, which could clarify whether the statute demands that young people be housed with adults before trial. In practice, however, juveniles facing trial have not been held in the adult system, and the challenge may, paradoxically, put a longstanding workaround that has kept pretrial youths out of adult prisons on the chopping block. 

The Supreme Judicial Court this week considered a practice attempting to balance a more lenient modern juvenile justice system in some situations with strict 1990s era laws that put young people charged with murder in a similar position as adults. The case concerned a young man who wanted to stay in the custody of the Department of Youth Services (DYS).

Massachusetts law technically requires that people charged with murder be committed “to the custody of the sheriff” until trial, regardless of their age. That can easily be understood as arguing that the sheriff’s office itself must have physical custody of a defendant and place them alongside adult convicts.

Practically speaking, the Department of Youth Services, the defendant in the case, and SJC justices noted during Wednesday oral arguments that the confinement system isn’t treated that way at all. County sheriff’s departments hand over juveniles to DYS as a “courtesy hold” until the age of 18.

This is because federal law requires that those over and under 18 years old be kept in separate custody. The longstanding DYS courtesy holds, all parties noted, have been an effective “workaround” since 1996 to keep the youth in legal custody of the sheriff’s office but the physical custody of DYS.

“I’m not arguing that courtesy holds are illegal, in any way shape or form,” said plaintiff Dante Padilla’s lawyer, Eva Jellison. But the court has interpreted the package of 1996 state laws at issue as requiring this category of young offenders to be treated as adults in all ways, she said, and “I really believe the statute does direct children to be held in adult jails,” which presents a constitutional concern when “there really is no legitimate reason to hold an eighth or ninth grader in adult custody.”

Oddly, the constitutional question presented to the court doesn’t have much to do with the facts of the case that brought it to their attention. 

Padilla was charged with second-degree murder when he was still a juvenile, kept in DYS care, and then told he needed to be transferred once he turned 18. At a bail hearing, Padilla asked that he remain in DYS custody rather than be sent to the county sheriff, even though he was now an adult. The Superior Court agreed to set bail at $200,000 and send Padilla back to DYS custody while awaiting any further orders.

It was that decision that prompted DYS to ask for clarity or a reconsideration of the lower court’s order, but instead the underlying constitutional question was kicked up to the Supreme Judicial Court.

The court mulled this “abstract” question with some visible befuddlement. Neither DYS or Padilla wants the DYS courtesy hold system overturned, but the court was asked to consider whether the underlying law requires that young people be held by the sheriff, and by implication does not allow transfer to DYS and the courtesy hold practice.

Ultimately, the court may well decide this system has solved its own constitutional problem  – keeping young people in DYS custody while keeping to the letter of the law – which justices seemed to suggest at the oral argument. 

“It’s interesting, I grant,” Justice Frank Gaziano said, regarding the constitutional question of custody. But deciding it, he said, is “not necessary because of the courtesy hold.”