Juvenile court proceedings emphasize informality

Introduction To Juvenile Justice+

1. Case Summary

Use your text and the internet to research the case of Fare v. Michael C. In a narrative format, outline the case. Give the facts, issue, and court holding.

2. Case Analysis

Are investigators held to a different standard when questioning juveniles in police custody? What are the standards for adults and what are the standards for juveniles?

3. Case Analysis

Would there be any changes for a juvenile who was 8 years of age?

4. Executive Decisions

Imagine you a gang detective supervisor. Write a brief policy, outlining for your detectives the policies for interviewing juveniles.

Chapter ObjeCtives After studying this chapter, you should be able to

• Describe how the middle and upper classes in the late 1800s viewed the poor and the working class

• Describe how the elite’s view of the poor and the working class influenced the types of social control mechanisms that were developed

• Describe who the “child savers” were and why they were interested in poor, wayward youths

• explain how the inability or unwillingness of criminal courts to deal with young offenders encouraged the development of the juvenile courts

• Describe the ways in which the social context of the late 1800s and early 1900s contributed to the development of the juvenile courts

• Describe the legal doctrine of parens patriae, and indicate how it was used as a justification for state intervention into family life

• explain why concern about the lack of due process in juvenile courts grew during the middle of the 1900s

• Describe the significance of Kent v. United States, In re Gault, In re Winship, and McKeiver v. Pennsylvania and how these cases influenced juvenile justice practice

Chapter Outline introduction

the social Context of the juvenile Court

the legal Context of the juvenile Court

the Operation of the early juvenile Courts

the legal reform Years

legal issues

Chapter summary

The Development of the Juvenile Court

chapter

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■ introduction

This chapter examines the development of the juvenile court in the United States. It describes the social context influencing the creation of the first juvenile court, established in Chicago in 1899, and the rapid spread of juvenile courts to other jurisdictions. It explores the legal developments that formed the underlying basis of juvenile court practice. It also looks at early juvenile court operation and important landmark cases that have affected the operation and practices of contemporary juvenile courts and other juvenile justice agencies. The chapter closes with an examination of the extent to which important legal cases actually influence the practice of juvenile justice.

■ the social Context of the juvenile Court

The period from 1880 to 1920, referred to as the progressive era by historians, was a time of major change in the United States. The pace of industrialization, urbanization, and immigration quickened during this period, and the population became more diverse. The stream of Irish and German immigrants that had begun during the early 1800s trailed off at the end of the century, but they were replaced by Italians, Russians, Jews, Greeks, and other immigrants from

eastern and southern Europe—people who came from cul- tural backgrounds that were alien to native-born Americans.1

The dream of a better life drew many people to American cities during the Progressive Era. This dream, however, fre- quently remained unrealized. Wealth was becoming increas- ingly concentrated in the hands of business elites who sought to dominate economic life, workers were forced to work long hours in unsafe work settings for low wages and no ben- efits, and housing was often inadequate. Periodic economic depressions ruined many people financially and made life particularly difficult for the poor. Not surprisingly, urban areas faced many social problems, including poverty, labor unrest, alcoholism, disease, racial and ethnic prejudice and discrimination, and crime.

progressive era A period in

American history, lasting roughly from 1890 to 1924, during

which a variety of economic, social, and political reforms and

reform movements occurred, including

women’s suffrage; trust busting; Pro- hibition; reduction in working hours;

elimination of child labor; adoption of

social welfare ben- efits; and the popular

voting measures of initiative, recall,

and referendum. The reforms were

primarily concerned with responding to popular unrest and

problems uncovered in the operation of

economic, social, and political institutions.

Key Concepts

review Questions

additional readings

Cases Cited

notes

Photo: Courtesy of Underwood & Underwood., Library of Congress Prints and Photographs Division.

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FYi urban GrOwth was OnlY One impOrtant ChanGe DurinG the prOGressive era

the city of Chicago provides a good example of the changes experienced during the Progressive era. Between 1890 and 1910, the population of Chicago doubled, growing in those two decades from 1 million to 2 million people. Between 1880 and 1890, the number of factories nearly tripled. Furthermore, by 1889, nearly 70% of the inhabitants of the city were immigrants.2

FYi ameriCan histOrY is Full OF COnFliCtinG interests

the United States has seen several conflicts between opposing interests, often the wealthy and the poor. One of the earliest of these was Shays’s rebellion, which began in western Massachusetts during the summer of 1786. the uprising represented an attempt by debt-ridden farmers to seize courthouses in order to forestall foreclosure proceedings against them. In 1839, an anti-rent movement spread throughout New York’s hudson Valley; thousands of renters attempted to make their voices heard and to resist the efforts of wealthy landlords to collect rents and taxes from poor farmers. all through the later 1800s, workers engaged in strikes and other efforts in order to win better wages and improve working conditions. the conflict between workers and employ- ers sometimes turned violent. For example, the great railroad strikes of 1877, which involved approximately 100,000 strikers, resulted in 1,000 arrests and 100 deaths.3

In response to the growing problems in many communities, members of the middle and upper classes attempted to implement reforms to alleviate the worst conditions faced by the poorest citizens. Of course, poverty, labor unrest, alcoholism, and racial and ethnic prejudice were hardly new. However, as the size and diversity of the population increased, these problems had grown. By the end of the 1800s, workers’ movements had become more national in scope and were clearly seen as more threatening to political and economic elites. As a result, these elites sought to devise better mechanisms of control in order to protect their interests.4

FYi the prOGressive era was a time OF ChanGe

the Progressive era was characterized by a political revolt against the social and economic evils of the Indus- trial revolution and a belief that government intervention, even on a national scale, was necessary to remedy these evils. Politically, it began with a series of urban and state reform movements directed against corrupt and boss-ridden local governments.

the Progressive era was also characterized by the belief that american ingenuity and spirit could solve social problems and make life better for people. tremendous technological advances were taking place, includ- ing the development of the automobile, the airplane, moving pictures, the phonograph, and the electric light bulb, to name just a few. equally important, many americans believed that advances also could be made in social, political, and economic life.

The American Constitution: Its Origin and Development by a. h. Kelly and W. a. harbison describes the Progressives as follows: “Like the Jeffersonians of a century before, the Progressives had an abiding faith in the intelligence and good will of the american people. Fundamentally, their remedy for the failures of democracy was more democracy. Let the will of the people really reach into the Congress, the courts, the state legislatures, and america could then solve its problems.”5

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Two problems that caused concern in the develop- ing urban areas were youth waywardness and crime. Thousands of indigent children roamed the streets in the larger cities,6 and many of these children engaged in immoral or illegal behavior that threatened the tran- quility of city life. Of course, criminal laws could be used to prosecute youths who committed crimes, but if the offenses were minor, the courts were often reluc- tant to do more than give the culprits a stern lecture. Furthermore, the laws were ineffective against those who had not committed crimes. As a result, reform-

ers sought to develop better ways of controlling youths—both those who committed crimes while they were young and those who were believed to be destined for adult criminal careers.

Those who led the reform effort, known as child savers, were primarily well-educated Protestant, middle-class women of Anglo-Saxon descent, but some were the daughters or wives of the most influential men in their community.7 They also tended to be conservative in their thinking. For example, they believed in traditional roles for women, and like other affluent people, they took for granted their natural superiority over the poor. From the child savers’ perspective, homemaking and child care were women’s primary responsibilities. However, because these traditional duties were performed in their own homes by servants, they had few outlets for their energies. Child saving provided a mechanism for these women to perform an important public service—the control and care of less fortunate children.8

FYi sOCial Darwinism inFluenCeD manY peOple’s thinKinG at this time

Social Darwinism was based on the belief that people’s position in life was a product of natural selection. thus, those who were wealthy believed that their wealth was a product of their natural superiority over those who were poor.

The child savers were informed by the latest thinking on adolescence, which saw adoles- cents as more like children than adults. Adolescence was seen as a problem period in the child’s development,9 a time when youths were subject to a variety of negative influences. Indeed, youths who engaged in crime were felt to suffer from poor parenting and weak morals and to be unusually susceptible to the temptations of the streets.10

Initially, the child savers sought to improve jail and reformatory conditions.11 However, their attention soon turned toward the development of more effective means of controlling the growing population of problem youths. Indeed, the primary focus of the child-saving movement was on extending government control over children through stricter supervision and improved legal mechanisms designed to regulate their behavior.12 In short, the child sav- ers felt that intrusion into the lives of children was necessary in order to prevent them from leading immoral and criminal lives—and, equally important, to protect the state and the interests of the wealthy.

Unlike earlier reformers, the child savers thought that the interventions needed to control and uplift children should be performed by government agencies, such as the police and courts, with the assistance of local charitable organizations. According to Julia Lathrop, an influential child saver in Chicago who later became head of the Federal Children’s Bureau:

There are at the present moment in the State of Illinois, especially in the city of Chicago, thou- sands of children in need of active intervention for their preservation from physical, mental and moral destruction. Such intervention is demanded, not only by sympathetic consideration for their

child savers A group of

reformers, mostly well- educated,

middle-class Protestant women

of Anglo-Saxon descent, who

had the time and resources to fight for improved conditions

for youths in jails and reformatories

and who eventually played an important

role in the creation of the juvenile

courts. On the posi- tive side, their work led to wider accep-

tance of adolescence as an important

developmental stage of life, and they cor-

rectly believed that the adult criminal justice system was

harmful to children or at best ineffec-

tive. On the negative side, their conser- vative ideas on the

family and their “noblesse oblige”

attitude toward the poor resulted in

reforms that focused more on the social control of children and the protection

of the interests of the wealthy than on attacking the

underlying causes of problem youth

behaviors.

Photo: Courtesy of hine, Lewis Wickes, 1874-1940, Library of Congress Prints and Photographs Division.

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well-being, but also in the name of the commonwealth, for the preservation of the State. If the child is the material out of which men and women are made, the neglected child is the material out of which paupers and criminals are made.13

■ the legal Context of the juvenile Court

Although the social conditions that existed in urban areas led reformers to advocate for changes in how communities responded to youth crime and waywardness, the reformers also recognized that existing legal mechanisms for controlling and protecting children were inadequate. One immediate concern of the child savers was the placement of children in jail. For example, a study of the county jail system in Illinois in 1869 discovered 98 children younger than 16 years in 40 different jails. In Michigan, 377 boys and 100 girls younger than 18 years were placed in county jails in 1873; 182 boys and 29 girls were placed in jails in Ohio in 1871; and more than 2,000 youths, 231 of whom were younger than 15 years, were placed in jails in Massachusetts in 1870. The jailing of children was a common practice.14 However, as the Board of State Charities in Illinois noted, the county jails in the state contained cells that were “filthy and full of vermin,” and were “moral plague spots” where children were turned into “great criminals.”15

The child savers, who were concerned about the conditions children were exposed to in adult jails and lockups, condemned the fact that adult courts failed to mete out appropriate punishments for many of the transgressions of the young. Unless their offenses were severe, criminal court judges often treated youths leniently. From the child savers’ perspective, children either were treated too severely, by being placed in adult facilities where they were corrupted by older and more hardened offenders, or were let go without receiving any assistance.16 Thus, according to the child savers, children were neither controlled nor helped.

By the late 1800s, legal mechanisms for treating children separately from adults had been in existence for some time. For example, laws establishing the minimum age at which a child could be considered legally responsible for criminal behavior as well as age limits for place- ment in adult penitentiaries were enacted during the first half of the century.17 Moreover, the first special institution dealing with youths, the House of Refuge, was established in New York City in 1825, and these institutions spread to other jurisdictions.

The legal justification for state intervention in the lives of children was based on the doc- trine of parens patriae (the state as parent), which was given legal standing in an important case, Ex parte Crouse, in 1838. Mary Ann Crouse was committed to the Philadelphia House of Refuge by her mother, but against her father’s wishes. The father questioned Mary Ann’s placement, arguing that she was being punished without having committed a criminal offense. The Pennsylvania Supreme Court ruled that Mary Ann’s placement was legal because the pur- pose of the house of refuge was to reform youths, not punish them; that formal due process protections afforded to adults in criminal trials were not necessary because Mary Ann was not being punished; and that when parents were unwilling or unable to protect their children, the state had a legal obligation to do so.18

The right of the state to intervene in the lives of children did not go unchallenged, however. In another important case, People v. Turner (1870), the Illinois Supreme Court ruled that Daniel O’Connell, who was committed to the Chicago House of Refuge against his parents’ wishes, was being punished, not helped, by his placement. In some respects, this case was similar to Crouse. Daniel was institutionalized even though he had committed no criminal offense, and he was perceived to be in danger of becoming a pauper or criminal. In other respects, however, the two cases were decidedly different. Unlike the Crouse case, both parents had objected to Daniel’s placement, and, even more important, the court ruled that his placement was harm- ful, not helpful. Furthermore, the court decided that because placement in the house of refuge was actually a punishment, due process protections were necessary.19

parens patriae The obligation of the government to take responsibil- ity for the welfare of children. The doctrine of parens patriae recognizes the moral obligation of the government to take care of children when there is no family available or if the family is not suitable.

due process A course established for legal proceedings intended to ensure the protection of the private rights of the litigants. The essential elements of due process are

1. proper notice as to the nature of the legal proceedings,

2. a meaning- ful hearing in which the indi- vidual has an opportunity to be heard and/or defend him- or herself, and

3. the objectivity of the tribunal before which the proceedings take place.

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People v. Turner was an important case because it was seen by reformers as an obstacle to their efforts to help and control youths. The Illinois Supreme Court’s ruling in People v. Turner that required due process protections prior to youths’ placement, along with the increasing con- cern over the unwillingness of the criminal courts to sentence youths, led reformers in Chicago to consider other mechanisms by which their aims might be achieved. What they finally did was create the first juvenile court, which was established in Cook County (Chicago) in 1899.20

The juvenile court allowed reformers to achieve their goals of assisting and controlling children’s behavior without undue interference from the adult courts and without undue concern for the due process protections afforded adults. This was accomplished by setting up the court as a civil or chancery court intended to serve the “best interests” of children (as opposed to a criminal court, which focuses on the punishment of offenders). Because the new court was not a criminal court and its goal was not to punish but to help children, the need for formal due process protections was obviated.21

■ the Operation of the early juvenile Courts

The Juvenile Court Act of 1899 gave the new juvenile court in Illinois broad jurisdictional pow- ers over people younger than 16 years who were delinquent, dependent children, or neglected children.22 In addition, it required that the court be overseen by a special judge, that hearings be held in a separate courtroom, and that separate records be kept of juvenile hearings.23 It also made probation a major component of the juvenile court’s response to offenders and emphasized the use of informal procedures at each stage of the juvenile court process.24

FYi inFOrmalitY has been a hallmarK OF the juvenile COurt

Informality, a lack of concern with strict due process, has characterized the operation of many juvenile courts since their inception.

In practice, the informality of the juvenile court meant that complaints against children could be made by almost anyone in the community. It meant that juvenile court hearings, which were initially open hearings like those in adult court, would become closed hearings, often held in offices as opposed to traditional courtrooms. In these closed hearings, the only people present were the judge, the parents, the child, and the probation officer. The informality also meant that few, if any, records were kept of hearings, that proof of guilt was not necessary for the court to intervene in children’s lives, and that little or no concern for due process protections existed. Finally,

it meant that judges exercised wide discretion regarding the actions they took, which could include anything from a stern warning to placement of a child in an institution.25

FYi

the first legislatively created juvenile court case was heard on July 3, 1899, before a packed courtroom on the third floor of the County Building in downtown Chicago before the honorable richard tuthill. the case involved henry Campbell, an 11-year-old who was arrested at the request of his mother for larceny. reporters covering the case noted that Mrs. Campbell told the court that her son was not a bad boy but had been negatively

chancery court English court

that was primar- ily concerned with

property rights. Chancery courts,

first established dur- ing the Middle Ages, were partially based

on the idea that children, particu-

larly children who owned or were in a position to inherit

property, should fall under the protective

control of the king. It was in these courts

that the concept of parens patriae was

developed. Over time, the chancery

courts became more involved in

the general welfare of families and

children. Because of its role in protect- ing the interests of children, it served as a model for the

juvenile court.

dependent children Children who are

dependent on others for financial support or who do not have

the support of a par- ent or guardian.

neglected children Children who are not given appro- priate care by the

parent(s) or a guardian.

Photo: Courtesy of hine, Lewis Wickes, 1874-1940, Library of Congress Prints and Photographs Division.

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influenced by others. She went on to say that she and her husband did not want him to be placed in an insti- tution and indicated to the judge that henry’s grandmother, who lived in rome, New York, was willing to take him. after carefully questioning the parents, Judge tuthill agreed that placing henry with the grandmother would be the best solution. thus, the first case in the juvenile court reflected the goal of the new court, to act in the child’s best interest.26

FYi pOlitiCs have alwaYs plaYeD a rOle in the juvenile COurt

the first hearing held by the Cook County Juvenile Court was a public event because the institutional lobby in Illinois that represented child-care institutions in that state had successfully opposed initial provisions of the legislation that called for closed hearings. In addition, the institutional lobby was also successful in ensuring that the initial legislation that was passed in Illinois gave jurisdiction over cases to the institutions after a juvenile was placed. as a result of the efforts of the institutional lobby, the placement of children in institutional settings in Illinois increased after the juvenile court was established.27 this is a good example of the role of politics in juvenile justice.

The idea of using juvenile courts to deal with youth crime spread rapidly after the pas- sage of the Illinois legislation. Within 10 years, 10 states had established special courts for children, and by 1925, all but two states had juvenile courts.28 These courts closely followed the model developed in Chicago: they were procedurally informal and intended to serve the best interests of children.

The juvenile courts were successfully implemented, in large measure, because they served a variety of interests. They served the interests of reformers, who sought to help children on humanitarian grounds, and the interests of those who were concerned primarily with the con- trol of lower-class, immigrant children, whose behaviors threatened urban tranquility.29 They served the interests of the criminal courts because they removed children from criminal court jurisdiction, freeing up time for the trying of adult offenders. Finally, they served the interests of the economically and politically powerful, because they did not require the alteration of existing political and economic arrangements.30 Although some undoubtedly saw the new juvenile courts as instruments of change, many others saw them as instruments of containment.

Despite the growing popularity of the juvenile courts, they did not go unchallenged. In another important court case, Commonwealth v. Fisher (1905), the juvenile court’s mission, its right to intervene in family life, and the lack of due process protections afforded children were examined by the Pennsylvania Supreme Court. In this case, Frank Fisher, a 14-year-old male, was indicted for larceny and committed to a house of refuge (the same house of refuge that Mary Ann Crouse had been committed to more than 60 years earlier) until his 21st birthday. Frank’s father objected to his placement and filed a suit that argued that Frank’s seven-year sentence for a minor offense was more severe than he would have received in a criminal court.31

In its ruling, the Pennsylvania Supreme Court upheld the idea of a juvenile court and in many respects repeated the arguments made by the court in the Crouse decision. The court found that the state may intervene in families when the parents are unable or unwilling to pre- vent their children from engaging in crime, and that Frank was being helped by his placement in the house of refuge. Furthermore, it ruled that due process protections were unnecessary when the state acts under its parens patriae powers.32

Fisher set the legal tone for juvenile courts from the time they began until the mid-1960s, when new legal challenges to the courts began to be mounted. These legal challenges primarily concerned expansion of juveniles’ due process protections. Critics of the juvenile courts recog- nized that despite their expressed goal of serving the best interests of children, the established institutions of juvenile justice often did the opposite. Although the courts were intended to help

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children, they did not always act as wise and benevolent parents. Indeed, their use of coercive powers to deal with a wide range of behaviors, many of which were not criminal in nature, in an informal setting without due process protections, created the potential for abuse. Moreover, although reformers had looked to the juvenile courts as a mechanism for both helping and controlling delinquent and wayward children, little attention was devoted to improving other juvenile justice institutions. Various mechanisms intended to assist the court in its mission, such as probation, relied heavily on untrained volunteers.33 Furthermore, the institutions used by the juvenile courts for the placement of children were the same institutions used before the establishment of the courts, and children continued to be subjected to inhumane treatment.34

COmparative FOCus

legislation establishing a separate juvenile justice process was enacted in Other western Countries During the early 1900s

For example, in 1908, the federal Juvenile Delinquents act (JDa), which stressed a treatment-oriented philosophy, was passed in Canada,35 and the Children act was passed in Britain, which established juvenile courts in england, Wales, Scotland, and Ireland.36 In Germany, the Juvenile Welfare act (JWa) of 1922 (with amendments in 1923) was passed to establish legal procedures for dealing with the rehabilitation and institutionalization of youths.37

■ the legal reform Years

The 1960s and 1970s were a time when American institutions, including juvenile justice institu- tions, came under intense scrutiny. During this period, the U.S. Supreme Court heard a number of cases that altered the operation of the juvenile courts. The most important of these was In re Gault (1967), which expanded the number of due process protections afforded juveniles. This section discusses this case and several others, including the first of these important cases, Kent v. United States (1966).

Morris Kent was accused of committing break-ins and robberies in the District of Colum- bia. One robbery victim was raped, but the principal evidence against Kent was a latent fin- gerprint left at the scene of the robbery and rape. Kent was on probation at the time of these crimes, and after his arrest, he was interrogated over a seven-hour period and confessed to several house break-ins. Without a hearing or any formal notice, Kent’s case was transferred to the criminal court. His attorney tried to get the case dismissed from the adult court and moved for a psychiatric evaluation and for receipt of all social reports in the juvenile court’s possession. The motions by Kent’s attorney were denied, however. At his trial in criminal court, Kent was convicted by a jury for robbery and housebreaking, and he was sentenced to 30 to 90 years in prison.

The matter was appealed on the jurisdictional issue of the waiver from juvenile court to adult court. It was contended that the waiver was defective on the following grounds:

• No waiver hearing was held. • No indication was given as to why the waiver was ordered. • Counsel was denied access to the social file and social reports that were reportedly used

by the judge to determine the waiver.

In this case, the Supreme Court ruled that for Kent’s waiver to be valid, certain due process requirements were necessary. Specifically, the Court held that Kent was entitled to representa- tion by an attorney; to a meaningful hearing, even if informal; to access to any social reports,

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records, reports of probation, and so on, that would be considered by the Court in deciding the waiver; and to be apprised of the reasons for the waiver decision.38

Kent was an important case for several reasons. It resulted in the first major ruling by the U.S. Supreme Court that scrutinized the operation of the juvenile courts. After more than 60 years of informal parens patriae procedures, the appropriateness of these procedures was being questioned, even if only narrowly, in the limited area of waivers to adult court. Kent also made explicit the need for due process protections for juveniles who were being transferred to adult courts for trial. The Court noted that even though a hearing to consider transfer to adult court is far less formal than a trial, juveniles are still entitled to some due process protections.

In its decision, the Court made numerous references to the need for due process protec- tions, stating that in a juvenile court a child may receive “the worst of both worlds: that he gets neither the protections afforded to adults nor the solicitous care and regenerative treat- ment postulated for children.”39 After the Court began to look at juvenile court processes and procedures, subsequent cases like Gault, McKeiver, and Winship became inevitable.

Having given notice that it would review the operation of the juvenile courts, within a year of the Kent decision the Supreme Court heard another landmark case. This case, In re Gault (1967), went far beyond Kent in its examination of juvenile court practice and extended a variety of due process protections to juveniles. The facts of the case clearly demonstrate the potential for abuse found in the informal procedures of the traditional juvenile court, and consequently this case is discussed in detail.

Gerald Gault was 15 years old when he and a friend were taken into custody by the Gila County (Arizona) Sheriff ’s Department for allegedly making an obscene phone call to a neighbor, Ms. Cook. At the time of his arrest, Gerald was on six months’ probation—the result of being with another friend, who had stolen a wallet from a purse. Gerald was taken into custody on the verbal complaint of Ms. Cook and was taken to the local detention unit. His mother was not notified of this by the police, but she learned about it later that day when she returned home and, not finding Gerald present, sent a sibling to search for him.

Upon learning that Gerald was in custody, Ms. Gault went to the detention facility and was told by the superintendent that a juvenile court hearing would be held the next day. On the following day, Gerald’s mother, the police officer who had taken Gerald into custody and filed a petition alleging that Gerald was delinquent, and Gerald appeared before the juvenile court judge in chambers. Ms. Cook, the complainant, was not present. Gerald was questioned about the telephone call and was sent back to detention. No record was made of the hearing and no one was sworn to tell the truth, nor was any specific charge made, other than an alle- gation that Gerald was delinquent. At the conclusion of the hearing, the judge said he would “think about it.” Gerald was released a few days later, although no reasons were given for his detention or release.

On the day of Gerald’s release, Ms. Gault received a letter indicating that another hearing would be held regarding Gerald’s delinquency a few days later. A hearing was held, and again the complainant was not present, and no transcript or recording was made of the proceedings. (Later, what was said was disputed by the parties.) Neither Gerald nor his mother was advised of any right to remain silent, of Gerald’s right to be represented by counsel, or of any other constitutional rights. At the conclusion of the hearing, Gerald was found to be a delinquent and was committed to the state industrial school until age 21 years, unless released earlier by the Court. This meant that Gerald received a six-year sentence for an offense that, if com- mitted by an adult, could be punished by no more than two months in jail and a $50 fine.40

In Gault, the Court ruled that the special circumstances that gave rise to the informal process of juvenile courts and the broad discretion of juvenile court judges did not justify the denial of fundamental due process rights for juveniles. The majority opinion stated, “As we shall discuss, the observance of due process standards, intelligently and ruthlessly administered,

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will not compel the states to abandon or displace any of the substantive benefits of the juvenile process.” The justices went on to argue:

The constitutional and theoretical basis for this particular system is—to say the least—debatable. And in practice, as we remarked in the Kent case, supra, the results have not been entirely satisfac- tory. Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedures. . . . The absence of substantive standards had not necessarily meant that children receive careful, compassionate, individualized treatment. The absence of procedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures. Departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness. . . . Failure to observe the fundamental requirements of due process has resulted in instances. . . . of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy. Due process of law is the primary and indispensable foundation of individual freedom. . . . Under our Constitution, the condition of being a boy does not justify a kangaroo court.41

The Court made it clear that juveniles are to be afforded fundamental due process rights that measure up to the essentials of fair treatment. The following rights are included:

• the right to reasonable notice of the charges • the right to counsel (either retained or appointed) • the right to confrontation and cross-examination of witnesses • the right against self-incrimination

However, the Court limited the application of these rights to proceedings involving a deter- mination of delinquency that may result in commitment to an institution.

Fundamental changes were required in juvenile courts after Gault. Many of them carried high costs. For example, the right to appointed counsel has become a major budget concern for juvenile courts, especially because this right has been expanded several times in subsequent Court decisions. The right to confrontation requires the processing of subpoenas and the costs of service. Finally, due process requirements have resulted in more adversarial hearings, which take longer to complete and thus push up costs.

Although Gault was a landmark juvenile law case, it was not the last Supreme Court deci- sion that influenced juvenile court procedures. The Court further expanded protections for juveniles three years after Gault. In In re Winship (1970), it addressed the level of proof needed for a conviction of delinquency. The case involved a 12-year-old male who was found guilty of stealing $112 from a woman’s purse. As a result, he was placed in a New York training school for a minimum period of 18 months, although the juvenile court indicated that the term of the sentence could be extended to the youth’s 18th birthday. The judge who heard the case admitted that proof “beyond a reasonable doubt” was not established at trial, but held that this level of proof was not required.

A majority of the Supreme Court justices held that proof of guilt beyond a reasonable doubt was an essential element of due process in delinquency cases. The Court indicated that to allow a lesser standard would seriously harm the confidence of the community in the fairness of the adjudicative process. The Court went on to talk about the “moral force” of the criminal law and how this force would be diluted if the standard of proof was lowered. According to the Court, a lower standard would lead the community to wonder whether innocent juveniles were being convicted and incarcerated.

The Winship decision added due process protections to those established by Kent and Gault. The result was that the concept of “proof beyond a reasonable doubt,” which had long been accepted in adult criminal cases, was now applied to adjudications in which juveniles were at risk of institutional placement.

The Supreme Court’s willingness to extend due process protections to juveniles came into question the following year, however. It heard two cases jointly, one from Pennsylvania and

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one from North Carolina, that concerned whether juveniles should be entitled to jury trials at the trial or adjudicative stage of the juvenile court process. In the Pennsylvania case, McKeiver v. Pennsylvania (1971), the Court used procedures that were similar to those used in adult criminal courts (plea bargaining, motions to suppress evidence, and so on). Moreover, one possible outcome was incarceration in a prison-like facility until the juvenile’s age of major- ity. The North Carolina case was heard in a court using much less formalized procedures than those in Pennsylvania, but the argument was made that the supposed benefits of the juvenile court system—discretionary intake, diversion, flexible sentencing, and a focus on rehabilitation—would not be hindered by the use of juries.

Justice Blackmun, writing for the majority, reviewed the historical reasons for a separate and distinct juvenile court and concluded by stating:

The arguments necessarily equate the juvenile proceeding—or at least the adjudicative phase of it—with the criminal trial, whether they should be so equated is our issue. . . . If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps that ultimate disillusionment will come one day; but for the moment, we are disinclined to give impetus to it.42

Consequently, the Supreme Court declined to extend the constitutional right to jury trial to the juvenile system.

McKeiver is important because it made clear that the Supreme Court was unwilling to give juveniles all of the due process protections available to adults. Nevertheless, many states have extended the right to a jury trial to youths at the adjudicative phase of the juvenile justice process. The McKeiver decision was not unanimous, however. Justice Brennan, in his dissent in McKeiver, focused on the individual state procedure and whether it afforded sufficient protec- tions to the juvenile from any government overreaching and from the “biased or eccentric” judge. He thought that one crucial factor that needed to be taken into account in deciding whether to mandate a jury trial was the public “openness” of trial proceedings and the ability of the jury to act as both a finder of fact and the community’s conscience, preventing the state from accusing juveniles for political purposes.43

Although one of the objections to jury trials in juvenile proceedings was that they would cause a backlog of cases and hamper the functioning of the juvenile court, experience has not shown that such trials seriously impeded the juvenile justice process. The other issue related to efficiency is whether juries can consist of less than 12 citizens. In many states, a jury of six is allowed for delinquency adjudications.

A collateral benefit of allowing jury trials is that they may aid rehabilitation. A juvenile who believes that “the system” has treated him or her unfairly may be less cooperative and open to assistance than one who is tried by an objective jury. A perception of fair treatment may go a long way toward fostering acceptance of responsibility on the part of the juvenile, to say nothing of its promotion of feelings of self-esteem. Juveniles who believe that the system treats them fairly and accepts them as significant persons whose rights must be protected may overcome feelings that they were treated unjustly.

Another point that is sometimes made about the use of juries in the juvenile court is that, unlike in adult courts, the jurors are not peers of those on trial. In some instances, the juvenile may benefit from this fact, because the adults on the jury may remember their own youthful mistakes and indiscretions and feel sympathy. If they are parents, jurors also may realize that, under other circumstances, one of their children could be at the defense table.

In reality, there is little evidence that, in those jurisdictions where they are possible, jury trials in delinquency proceedings have proved to be docket cumbersome, inefficient, or exceed- ingly expensive. Moreover, they have the advantage of making a statement to the community and the juvenile regarding the juvenile court’s concern for fundamental fairness.

Despite the due process protections extended to juveniles through the Kent, Gault, and Winship decisions, much of the informality of the juvenile court remains intact in practice.

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Indeed, one complaint is that changes in the legal procedures that supposedly govern the juve- nile courts have not always resulted in fundamental changes in the daily operation of juvenile justice.44 Many critics contend that juveniles often are denied basic protections in the juvenile justice process and that the continued informality of the juvenile courts fails to serve either the juveniles’ best interests or the best interests of the community. In writing about the trial or adjudication stage of the juvenile justice process, Joseph Sanborn and Anthony Salerno note that juvenile court adjudications typically have features that work to the advantage of prosecutors. These include the following:

• No jury that might look critically at the fact-finding process • No public to examine the court (including the judge) • Defense attorneys and parens patriae judges who are inclined to focus not on legal

protections but on the child’s needs • Judges who are knowledgeable about a youth’s current offense and prior record • Less-demanding laws, rules, and procedures • Youths who are stigmatized when they come to the adjudication because they have

been detained • Fewer legal maneuvers available to defense attorneys • Parents who assist in their child’s adjudication • The ability of courts to amend petitions and continue hearings • The ability of judges to revise adverse verdicts reached by other hearing officers • The reality that few appeals are filed by defense attorneys45

Although juvenile courts often operate on the premise that their goal is to serve the child’s best interests, which can be advantageous to youths, when the sum of advantages and disad- vantages are totaled, many youths are likely to be severely disadvantaged at the adjudication.

FYi Gault raiseD impOrtant QuestiOns abOut juveniles’ riGhts

Gault raised several questions at the time of its release. Would procedural rules, such as the exclusionary rule, be applicable to juveniles? Do juveniles have the right to Miranda warnings before being interrogated by the police? Do juveniles have the right to jury trials? Do juveniles have the right to bail? at a hearing to determine a finding of delinquency, does a juvenile have to be found “guilty beyond a reasonable doubt”? Since Gault, many, but not all, of these questions have been answered in the affirmative, further prolonging juvenile proceedings and increasing court costs, but giving youths important protections.

exclusionary rule A procedural rule

that prohibits evidence that is

obtained by illegal means or in bad faith from being used in a

criminal trial.

Miranda warnings Specific warnings given to a suspect

prior to questioning that inform them that statements they make

to law enforcement agents can be used

against them in court.

bail The money or bond

used to secure the release of a person

charged with a crime.

mYth vs realitY juveniles DO nOt have all OF the leGal prOteCtiOns available tO aDults

Myth—today, juveniles have all of the due process protections afforded adults in criminal courts. reality—In some states, juveniles still lack some of the due process rights, such as right to a jury trial and a right to bail, given to adults.

FYi juvenile vs. Criminal COurts

Looked at broadly, Kent, Gault, McKeiver, and Winship concern the degree to which adult criminal practice should be extended to the juvenile courts. Kent, Gault, and Winship made clear that certain due process protections that have long been part of adult court practice also should be given to youths being tried in

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juvenile courts. McKeiver, however, indicated that there were limits to how far the Supreme Court was willing to go in this area. It also showed that the Court was unwilling to completely dismantle the juvenile justice apparatus and that it wished to maintain some of the traditional informality of juvenile courts.46 these cases left unresolved, however, whether many other adult court practices should apply to the juvenile courts, such as a defendant’s right to bail, pretrial discovery, and bill of particulars. pretrial discovery

Efforts of a party to a lawsuit to obtain information prior to trial. The theory behind discovery is that all parties should go to trial with as much infor- mation as possible.