Articles

This Old Court: Abolitionists Once Again Line Up The Wrecking Ball On the Juvenile Court When All It Needs Is A Few Minor Alterations.

Written by: Michael Kennedy Burke
Published by: University of Toledo Law Review

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I. INTRODUCTION

CONTRARY to popular belief, "[violent] juvenile crime is not rising out of control. ¹ Violent offenders constitute only a small proportion of juveniles who are arrested. ² A recent study revealed that the arrest rate of juveniles committing serious crimes has actually decreased between the years of 1982 and 1992. ³ To dismantle another popularly held misconception, the recidivism rate is not disproportionately high among juvenile offenders when they reach adulthood. ⁴ For example, in a recent survey to determine the rate of recidivism among juveniles, the South Carolina Department of Youth Services traced the activities of 39,250 males born between 1964 and 1971 who had been adjudicated as juvenile delinquents. ⁵ "The overall recidivism rate of these delinquent males surveyed was sixteen percent." ⁶ In other words, eighty-four percent, or 32,970, of the delinquent males who encountered the South Carolina juvenile justice system have either been rehabilitated or deterred from further crime, and have not found themselves in the adult criminal court system. ⁷

These encouraging statistics lend support to the theory that the juvenile justice system is able to assist impressionable youngsters who have been defying the law, by helping them to become productive members of society. ⁸ However, many leading critics of the juvenile justice system have called for the abolition of this ninety-five-year-old institution. ⁹ The "abolitionists ¹⁰ seek the termination of the juvenile system for three reasons. The first reason stems from thirty years of U.S. Supreme Court decisions which have formalized the juvenile court through the recognition of procedural and substantive due process rights of juveniles. ¹¹ By recognizing juveniles' due process rights, the abolitionists contend, the Court diminished the ability of juvenile courts to serve their social purpose. ¹² Instead, the Court has created a system that closely parallels the adult criminal system. ¹³ The second reason propounded by the abolitionists for eradicating the juvenile court is an alleged savings in judicial resources in two interrelated areas. ¹⁴ The first purported area of savings will arise because the state will no longer have to make expenditures to maintain two separate systems, as the juvenile court system will be merged with the criminal courts. ¹⁵ The second area of proposed savings in the "frictional costs" attributed to the procedures of transferring juveniles to the adult criminal system. ¹⁶ The term "frictional costs" refers to the costs of psycholo~ical analysis of the juvenile as well as the costs extended for conducting hearings. ¹⁷

The third, and final, reason in support of abolishing the juvenile court is a claim that the current system is "soft" on violent juvenile offenders. ¹⁸ Abolitionists argue that, for this reason, the juvenile system should be merged with the adult criminal justice system which is more familiar with violent offenders and the punishment of such violent offenders through incarceration for longer periods. ¹⁹

The abolitionists contend that the removal of the juvenile court system is beneficial for both society and the juveniles it serves. ²⁰ Society, with its "get tough" mentality, will find abolition desirable because tougher punishments will be imposed for juvenile delinquents convicted of more serious crimes. The abolitionists also believe the juveniles will benefit from abolition because they will share the full gamut of constitutional guarantees provided by the adult criminal system. ²¹

This is not the first movement to dismantle the juvenile court system. The first attack came in the l970s, after the U.S. Supreme Court rendered its first two decisions concerning the juvenile justice system. ²² The first decision, United States v. Kent, ²³held that the use of waiver to transfer a juvenile to the adult criminal system was constitutionally valid. ²⁴ The second decision, In re Gault, ²⁵ recognized the due process rights of juveniles. ²⁶ In response to these decisions, a number of commentators called for the abolition of the juvenile court system because they believed that the effect of the Court's recognition of these constitutional rights created a formal tribunal similar to the criminal justice system. ²⁷

The current reemergence of the call for the abolition of the juvenile court system comes in the wake of a perceived increase in violent crimes being committed by juveniles. ²⁸ However, many of these perceptions are unfounded. In a recent study by the National Council on Crime and Delinquency, the Council found that "[v]iolent offenders remain a small proportion of the juveniles who are arrested-and for every arrest of a juvenile for murder or manslaughter there are seventy arrests for vandalism or auto theft." ²⁹ The Council also noted in its study that the Justice Department's analysis of juveniles in twenty-eight state juvenile correction systems found that "eighty-six percent of the inmates were committed for non-violent crimes." ³⁰ The juvenile system is not without its flaws, but the abolition of the juvenile court and the ensuing merger with the already overburdened criminal court system is definitely not the answer.

Much of the recent discussion concerning the juvenile court system's shortcomings has centered on this misperception that violent juvenile crime is increasing, and the perceived inability of the system to effectively address the problem. ³¹ An array of suggestions has been proffered to correct the existing system: the death penalty; ³² more prisons for juvenile offenders; ³³ and, the elimination of the system altogether. ³⁴ These suggestions, however, will obviously not benefit the juvenile offenders. Indeed, more modest reforms in the present system have shown some positive returns.

This comment suggests that increased punishment of the juvenile offenders or the abolition of the juvenile system altogether is not the answer to the problems that the juvenile courts are facing. ³⁵ This comment grants special attention to Ohio's juvenile system, and the recent problems that it has encountered. This comment also addresses how other states are attempting innovative programs in order to better deal with the juvenile offenders, as opposed to simply passing more legislation that concentrates on stricter penalties or, even worse, abolishing the system altogether.

Section II of this comment presents a brief background of the development of the juvenile court system. ³⁶ In section III, this comment analyzes the Supreme Court decisions in Kent, Gault, In re Winship and McKeiver and their effect on the juvenile system, as well as the juvenile system in Ohio. Sections IV and V of this comment concentrate on responding to the abolitionists' claims, and also proposes and discusses some new procedures offered to correct the inadequacies in the existing juvenile court system.

II. BACKGROUND

A. History and Philosophy of the Juvenile Court

At the turn of the century, there was growing concern over the inability of the adult criminal court system to properly address the special needs of the young offender. ³⁷ In response to this growing concern, the state of Illinois, in 1899, established the first juvenile court in the United States. ³⁸

The Illinois Juvenile Court Act of 1899 ³⁹ "granted original jurisdiction to the juvenile court to hear any matter involving a juvenile under the age of sixteen who violates any law of the state or who violates any city or village ordinance." ⁴⁰ Statutes similar to the Illinois Juvenile Court Act were subsequently enacted in most states-in all but two by 1928. ⁴¹

The philosophy of the first juvenile court differed in many respects from that of the adult criminal justice system. ⁴² The criminal system focuses on the offense committed and the appropriate punishment rather than focusing on the individual and the possibility of rehabilitation. ⁴³ "The juvenile court planners envisaged a system that would practically immunize juveniles from 'punishment' for 'crimes' in an effort to save them from the youthful indiscretions and stigmas due to criminal charges or convictions." ⁴⁴ "A child was not accused of a crime" and punished, but rather, was "offered assistance and guidance." ⁴⁵ A private, informal hearing was conducted to determine the type of rehabilitation best suited for the child. ⁴⁶ The underlying policy of the juvenile justice system was, and in theory still is, one of parens patriae in which the state, through the courts and social services, steps in and attempts to steer the youthful offender away from a life of crime. ⁴⁷ The philosophy that was expounded in the Illinois Juvenile Court Act is reflected in an early Ohio case, Ex parte Januszewski. ⁴⁸ In this case, the court held that:

The purpose of the [Ohio Juvenile Act] is to save minors under the age of 17 years from prosecution and conviction on charges of misdemeanors and crimes, and to relieve them from the consequent stigma attaching thereto; to guard and protect them against themselves and evil-minded persons surrounding them; to protect and train them physically, mentally, and morally. It seeks to benefit not only the child, but the community also, by surrounding the child with better and more elevating influences and training it in all that counts for good citizenship and usefulness as a member of society. ⁴⁹

This philosophy, expressed more than eighty years ago, can still be found today in the Ohio Juvenile Code. The Juvenile Code provides that:

(A) To provide for the care, protection, and mental and physical development of children....

(B) To protect the public interest in removing the consequences of criminal behavior and the taint of criminality from children committing delinquent acts and to substitute therefor a program of supervision, care, and rehabilitation.

(C) To achieve the foregoing purposes, whenever possible in a family environment, separating the child from its parents only when necessary for his welfare or the interests of public safety... ⁵⁰

The first major alteration of the juvenile court system came almost seventy years after its establishment, when the Supreme Court decided its first two juvenile law cases. In its first decision,Kent v. United States, ⁵¹ the Court upheld the constitutionality of jurisdictional waiver of a juvenile offender from juvenile court to the criminal court. ⁵² Shortly thereafter, the Court decided, in In re Gault, ⁵³ that the Arizona Juvenile Code was unconstitutional because it violated the juvenile's Fourteenth Amendment due process rights. ⁵⁴ Although these decisions were aimed at benefiting the juvenile offender through a greater recognition of juvenile rights, they created mixed results. ⁵⁵

After the decision in Kent, almost all of the states were quick to include jurisdictional waiver in their juvenile codes. ⁵⁶ At first, jurisdictional waiver was aimed solely at juvenile offenders who committed serious or violent crimes. As time passed, it became evident that the notion of jurisdictional waiver was just a "simple answer to a complex problem." Many state legislators would take advantage of the waiver doctrine by increasing the number of crimes that required waiver to the criminal court system. ⁵⁷These actions were taken in response to public outcry concerning juveniles who were committing more violent crimes at younger ages. The list of offenses that would warrant jurisdictional waiver began to expand to include numerous less egregious offenses. ⁵⁸ Thus, many state legislatures ignored the question of why juveniles were committing more violent crime, and instead, simply extended the lists of crimes that would require the juvenile judges to transfer a juvenile to a criminal court. ⁵⁹

The ramifications of the Court's decision in Gault were not immediately felt by the juvenile justice system. ⁶⁰ However, as state courts began to respond to the Gault decision, more formal proceedings emerged, contrary to what the juvenile courts originally envisioned-an informal court whose disposition reflected the best interests of the child. ⁶¹

B. Process in the Juvenile Court

Before analyzing the effects of several Supreme Court decisions from the last three decades on the juvenile court system, a brief discussion of the mechanics of the juvenile court is beneficial for a better understanding of the procedures and terminology of this separate tribunal. Using Ohio as a model, the first section of the Ohio Revised Code that is dedicated to juvenile law states that the purpose of the juvenile court is to "provide for the care, protection, . . . and physical development of children." ⁶²The code balances this concern with that of "protect[ing] the public interest in removing the consequences of criminal behavior and the taint of criminality from children committing delinquent acts and to substitute a program of supervision, care and rehabilitation." ⁶³

Because the juvenile court's purpose is drastically different, both in theory and practice, from the adult criminal system, ⁶⁴ it has developed a unique terminology and process to diminish the stigmatizing effect that the court experience can have on the child. ⁶⁵ When a juvenile is taken into custody for an offense, the juvenile judge will determine at a hearing whether the juvenile is within the jurisdiction of the court, or alternatively, whether because of the child's age, the offense committed, or prior record, the juvenile should be transferred to the adult criminal system. ⁶⁶ This transfer has become to be known as a waiver.

Waiver comes in a number of varieties, such judicial waiver, legislative waiver and prosecutorial waiver. Depending on a state's code, one of these three types of waiver is generally in place. If the juvenile court maintains jurisdiction over the juvenile offender, there will be an adjudication hearing to determine whether the juvenile committed the alleged offense, ⁶⁷ and, depending on the severity of the offense, whether the juvenile offender should be adjudicated as either a delinquent child or an unruly child. ⁶⁸ Following the adjudication proceeding, a disposition proceeding occurs which is similar to a criminal court's sentencing hearing. ⁶⁹ The purpose of the disposition hearing is to determine whether the juvenile will remain in the custody of the court and sent to a detention home, be put on probation, or be released to his parents or legal guardian. ⁷⁰

This brief overview of the juvenile process and the unique terminology that is attached to some of its steps will help set the stage for a discussion of several of the Supreme Court cases that have revolutionized the juvenile process over the last thirty years. ⁷¹

III. PROCEDURAL REFORM iN THE JUVENILE COURT

A. Kent v. United States: The Supreme Court Formalizes the Utilization of Judicial Waiver

The first case in which the Supreme Court addressed the issue of waiver from juvenile court to adult criminal court was Kent v. United States. ⁷² In Kent, the Supreme Court considered two issues: (1) whether the District of Columbia juvenile court's order of waiver of a juvenile to the criminal court system was valid; and (2) whether a full investigation had been conducted by the juvenile judge before waiving Kent to the criminal system. ⁷³

Morris Kent was sixteen years old, with a prior history in the juvenile court, charged with the crimes of housebreaking, robbery, and rape. ⁷⁴ He was found guilty of robbery and housebreaking, and was sentenced by the criminal court to a prison term of thirty to ninety years. ⁷⁵ The relevant provision of the District's juvenile code stated that:

If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this subchapter in conducting and disposing of such cases. ⁷⁶

Kent argued that the juvenile court did not conduct a full investigation, as required by the code, when it waived him over to the adult criminal system. ⁷⁷ Both the district court and the appellate court rejected Kent's assertion that the juvenile judge did not conduct a full investigation. ⁷⁸ Instead, the courts deferred to the considerable latitude that is granted to the juvenile court to determine whether it has jurisdiction over the juvenile or whether he should be waived into the adult system. ⁷⁹

The U.S. Supreme Court, while recognizing the important purpose of the juvenile court when acting as parens patriae over the juvenile, held that this purpose should not override the importance of the procedural guarantees implicit in the requirement to conduct a full investigation. ⁸⁰ The Court instructed the "juvenile courts to act like courts, not parents, and to accord substantial due process rights to accused juveniles going through the 'critically important' transfer proceeding." ⁸¹ In reversing the lower courts' decisions, the Court noted that "the admonition to function in a 'parental' relationship is not an invitation to procedural arbitrariness." ⁸²

The Supreme Court's decision in Kent characterized the ominous beginning of the formalization of the juvenile court system, through the procedural requirement of a hearing before judicial transfer. This decision also delineates the Supreme Court's recognition of legislative waiver. Kent represents a contradiction of what the founders initially intended to avoid-an inflexible and formal tribunal that mirrors the criminal justice system.

B. Effect of the Kent Decision on Judicial and Legislative Waiver

The portion of the Kent decision that recognized and formalized the judicial waiver of juveniles to criminal court did not, in fact, increase the numbers of juveniles that were being transferred. ⁸³ A leading commentator in the field of juvenile law, Professor Francis McCarthy of the University of Pittsburgh School of Law, offers three probable reasons why there has not been an increase in the use of judicial waiver. First, McCarthy suggests that transfer signifies the juvenile court's admission of failure in its inability to care for and rehabilitate the juvenile. ⁸⁴ Second, by transferring the juvenile offender, the juvenile judges are, in essence, "writing off' the juvenile as unsalvageable. ⁸⁵ Finally, McCarthy notes that juvenile judges may be hesitant to send juveniles to the harsher adult criminal system. ⁸⁶

However, the portion of the Kent decision that has had a drastic impact on the use of waiver in the juvenile court is found in the appendix of the opinion. ⁸⁷ The appendix to the opinion sanctioned a legislatively created waiver which would require the juvenile courts to transfer a case if: (1) the alleged crime "is heinous or of an aggravated character"; (2) the alleged crime "represents a pattern of repeated offenses which indicate that the juvenile may be beyond rehabilitation under Juvenile Court procedures"; or, (3) "the public needs the protection afforded by such action." ⁸⁸

Kent's rubber-stamping of legislative waiver with this broad proclamation encouraged state legislatures to react in two ways. First, Kent encouraged state legislatures to rewrite their juvenile statutes to include lists of exclusionary crimes that would warrant the prosecution of juveniles in criminal court.' ⁸⁹ Second, it encouraged the state legislathres to lower the age limit which mandated exclusive jurisdiction in the juvenile courts over juvenile offenders. ⁹⁰ For example, the Illinois statute excludes from the juvenile court's jurisdiction a juvenile who at the time of the offense was at least fifteen years of age and who is charged with first degree murder, aggravated criminal sexual assault, or armed robbery (when committed with a firearm). ⁹¹ An even greater legislative expansion is represented in the Indiana statute where offenses such as kidnapping and robbery (if committed while armed with a deadly weapon or results in bodily or serious bodily injury) will result in the juvenile being transferred to the adult criminal court system. ⁹²

The Kent decision not only encouraged state legislatures to lower the age of exclusive jurisdiction of juvenile courts, ⁹³ but also provided that a juvenile who has reached the requisite age and committed one of the listed offenses, would automatically be waived into the adult system. ⁹⁴" This use of legislative waiver by politicians has been referred to as the creation of a "safety valve" ⁹⁵ for the juvenile delinquent to flow through into the criminal system.

The National Law Journal recently conducted a survey of juvenile judges throughout the country, asking their opinion of the modern-day effects and applications of the waiver doctrine established in Kent. In this survey, almost seventy percent of the juvenile judges polled were strongly opposed to legislative waiver. ⁹⁶ It is suggested that their opposition to legislative waiver is based on the belief that legislative waiver is often just a simple answer to a complex problem because it may cast the net of legislative exclusions too broadly so as to blindly hail juvenile offenders into criminal court. ⁹⁷ The abuse of legislative waiver is statistically exemplified in a study conducted in June, 1994, by Michael Jones and Barry Krisberg of the National Council on Crime and Delinquency. ⁹⁸ In their study, Jones and Krisberg found that: "[T]he majority of juveniles waived to adult court are not sentenced for serious violent offenses, or even crimes against persons. In 1991, 34 percent of the cases transferred through judicial waiver were for person offenses, while 44 percent were for property offenses." ⁹⁹ The greatest increase in the use of transfer waiver over the five-year span from 1987 to 1991 involved drug cases. ¹⁰⁰

Many critics seek the abolition of the juvenile court system because the states transfer many juveniles to the criminal system. They argue that the transfers represent the states' position that children no longer deserve the special treatment provided to them by the juvenile court. ¹⁰¹ While the juvenile system is not without its flaws, the inappropriate use of legislative waiver is not the answer. Instead of abolishing the juvenile court system or diminishing its effectiveness by legislative waiver, state legislatures should limit the number of crimes listed that require automatic waiver, or, in Ohio's case, limit the types of crimes which require transfer. ¹⁰² These are alternative approaches that could be implemented to correct some of the inadequacies of uncompromising waiver in the juvenile court. ¹⁰³

C. Due Process, The Standard of Proof and Trial by Jury

1. Due Process Guarantees Awarded to Juveniles During Adjudication Hearings-In re Gault

A year after Kent, the U.S. Supreme Court decided In re Gault, ¹⁰⁴ which changed the procedural requirements in the juvenile court. ¹⁰⁵ In Gault, the Court held that juvenile offenders are guaranteed certain procedural requirements by the Constitution that were not being recognized by juvenile courts. ¹⁰⁶ The Court held that the failure to honor these rights was a due process violation. ¹⁰⁷ In recognizing these additional procedural guarantees, the Court required the juvenile system to begin to more closely parallel the procedures afforded in criminal settings. ¹⁰⁸

In Gault, the minor, Gerald, ¹⁰⁹ was taken into custody by the local authorities for making lewd and lascivious phone calls to a neighbor! ¹¹⁰ Gerald was subsequently adjudicated as a juvenile delinquent and committed by the juvenile court to the state industrial. ¹¹¹

When Gerald was taken into custody, notice was not given to his parents. ¹¹² Upon coming home, Mrs. Gault was informed by a neighbor that Gerald, in effect, had been arrested. ¹¹³ Mrs. Gault went to the detention home, and was informed by the probation officer of the circumstances surrounding her son's arrest. ¹¹⁴ The probation officer also explained to Mrs. Gault that a hearing would be conducted the following day to determine whether Gerald would be adjudicated as a delinquent. ¹¹⁵ At the hearing, the judge took into consideration the testimony of both the probation officer and the juvenile to determine whether Gerald had made the lewd phone calls. ¹¹⁶ The judge held that Gerald was to be returned to the detention home, where he remained for three to four days until he was released. ¹¹⁷ Upon Gerald's release, no explanation was given for his detention or for his release. ¹¹⁸ A later hearing was scheduled to determine Gerald's juvenile delinquency status, at which time he was formally charged with making lewd phone calls. ¹¹⁹ The judge ordered that Gerald was to be committed to the state detention home, with the possibility of remaining there until he reached the age of twenty-one. ¹²⁰ Because Arizona law did not provide for appeals in juvenile cases, Gault filed a writ of habeas corpus, claiming that he was falsely imprisoned and that his detention was violative of the Eighth Amendment. ¹²¹ His writ was subsequently denied by both the superior court and the Supreme Court of Arizona. ¹²²

The U.S. Supreme Court reversed the Supreme Court of Arizona, and held that the Arizona juvenile code was unconstitutional on its face because it deprived juveniles of their due process rights. ¹²³ Although juvenile court proceedings are often referred to as ¹²⁴ the Supreme Court found that the juvenile court proceedings are, in actuality, "quasi-criminal". ¹²⁵ Furthermore, the Court found that "although it is required in a delinquency determination to ensure treatment and rehabilitation, this process is nonetheless, subject to the principles of due process and fundamental fairness. ¹²⁶ In a juvenile context, the Court instructed that due process requires: "(1) the juvenile's parents or guardians must be given adequate notice of the charges and that notice must be both timely and state the precise issues of the charge, (2) the juvenile has a right to counsel, (3) the juvenile has the right to confrontation and cross-examination, and (4) courts must recognize a juvenile's privilege against self-incrimination." ¹²⁷

In response to Gault, Ohio amended the statutory purpose of its juvenile code. ¹²⁸ The previous purpose behind Ohio's juvenile code focused on "custody" and "sheltering the juvenile." ¹²⁹ The change focused on the concept of "liberty," through judicial procedures in which the parties and their constitutional and other legal rights are recognized and enforced. ¹³⁰ The decision in Gault not only brought about a change in the purpose of the juvenile code in Ohio, but it also brought about changes in other sections of the statute as well. In further response to the Gault decision, the Ohio legislature drafted the Juvenile Rules in 1972, and made some changes to the definitional section of the statute. ¹³¹ While changes were made to the definitional section, which include definitions of "shelter," "legal custody," and "residual parental custody," no changes were made to clear up some of the vagueness of the definition of "delinquent" and the newly created term "unruly." ¹³²

The earlier 1969 amendment to the Ohio code had created a new definition of "unruly child." This was done by combining several portions of an older "delinquency" definition with segments of an old "neglected child" definition. ¹³³ The unruly definition was created to avoid the stigmatizing effect of labeling a juvenile as a delinquent by differentiating between less serious offenses (like truancy, disobedience, or running away) and more serious offenses that are a violation of adult criminal laws. ¹³⁴ A similar explanation, offered at the turn of the century, suggests that a juvenile should not be labeled as a criminal, because of the stigmatizing effect of the label of criminal. ¹³⁵

In light of these definitional changes, a child could still be adjudicated as unruly, and be committed to an institution in Ohio, without the properrrocedural hearings or due process guarantees that are required by Gault. ¹³⁶ This is because that decision involved the adjudication of a "delinquent" child and not of an "unruly child. ¹³⁷ The Gault decision only recognized the due process rights of juveniles in delinquency adjudication proceedings-not for an unruly disposition proceeding. ¹³⁸

In so doing, Gault effected an undesirable result: more serious punishment and less protection for less serious offenders, and less severe punishment and more protection for more serious offenders. Thus, a child who committed a lesser offense, such as habitually skipping school (an offense that is obviously not a crime if committed by an adult), could face a harsher disposition than a fellow juvenile who committed a more serious crime. ¹³⁹ This is because the juvenile's due process guarantees may not be recognized in an unruly child proceeding. If the juvenile is committed to a state institution, he will be committed to the same institution that houses the more serious juvenile delinquent. ¹⁴⁰ Indeed, unruly children were being committed to institutions until the reforms in 1981, which limited commitments to felons. ¹⁴¹ However, the procedural guarantees that are afforded to juveniles in delinquency proceedings have not been extended to the commitments of unruly children. ¹⁴² This is perhaps because they are seen as limitations on the juvenile's liberty, but not as total deprivations of liberty. ¹⁴³

2. Standard of Proof in a Delinquency Adjudication

Three years after Gault, the U.S. Supreme Court revisited the constitutional guarantees that it extended to juveniles by its decision in Gault. In In re Winship, ¹⁴⁴ the Court held that the standard of proof for a delinquent adjudication proceeding should be the same-beyond a reasonable doubt-as the standard applied in criminal proceedings where the depravation of one's liberty is at stake. ¹⁴⁵ The Court addressed the very narrow issue of "whether proof beyond a reasonable doubt is among the 'essentials of due process and fair treatment' required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult. ¹⁴⁶ Winship involved a twelve-year-old boy who was charged in the New York Family Court with robbery. ¹⁴⁷ Because this crime, if committed by an adult, would constitute the crime of larceny, the juvenile was adjudicated as a delinquent. ¹⁴⁸

The U.S. Supreme Court, reversing the New York Court of Appeals decision, noted that: "The same considerations that demand extreme caution in fact finding to protect the innocent adult apply as well to the innocent child." ¹⁴⁹ The New York Court of Appeals had held "that the delinquency adjudication is not a conviction, that delinquency is not a crime and that juvenile proceedings were civil in nature." ¹⁵⁰ The U.S. Supreme Court disagreed, and reaffirmed its holding in Gault, stating that:

[C]ivil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts for, "[a] proceeding where the issue is whether the child will be found to be delinquent and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution." ¹⁵¹

Although the U.S. Supreme Court narrowed the procedural gap between the criminal system and the juvenile court system in Gault, the Court limited its holding in Winship to the issue of the standard of proof in a delinquency proceeding. ¹⁵² The Court did not extend its holding to include the full gamut of due process rights awarded to adult criminal defendants to juveniles at delinquency proceedings. ¹⁵³ Such determinations as the juvenile's right to a jury trial would have to wait for the Supreme Court to render its next pronouncement of juvenile law in McKeiver v. Pennsylvania. ¹⁵⁴

3. Trial By Jury For Delinquency Proceedings

The progression toward "procedural parity" ¹⁵⁵ between the juvenile court system and the adult criminal system met its first setback when the U.S. Supreme Court rendered its decision in McKeiver v. Pennsylvania. ¹⁵⁶ In McKeiver, the Court held that the right to a jury trial did not extend to delinquency proceedings. ¹⁵⁷ Joseph McKeiver was sixteen at the time he was charged with robbery, larceny, and receiving stolen goods-all of which are felonies under Pennsylvania law. ¹⁵⁸ At the time of his adjudication hearing, McKeiver requested a jury trial, which the juvenile judge denied. ¹⁵⁹ McKeiver appealed the juvenile court's refusal to allow a trial, and the Pennsylvania Superior Court affirmed without a written opinion. ¹⁶⁰

On appeal, the Supreme Court of Pennsylvania relied on the distinction between the roles of a juvenile judge, who has available to him more diagnostic and rehabilitative resources, and those of his counterparts in the criminal system. ¹⁶¹ McKeiver argued that since he was being tried in a juvenile proceeding substantially similar to a criminal trial, he should receive all of the procedural guarantees afforded to criminal defendants. ¹⁶² The Supreme Court of Pennsylvania held that juveniles received the applicable due process standard of fundamental fairness, as developed by the U.S. Supreme Court's decisions in Gault and Winship. ¹⁶³ Therefore, the court was unwilling to find that those guarantees of fundamental fairness included a right to a jury ¹⁶⁴The U.S. Supreme Court upheld the Pennsylvania Supreme Court's decision. The Court noted that a judge can serve as a sufficient fact-finder and that juries are not "a necessary component" in every criminal trial. ¹⁶⁵ The Court concluded by stating that a judge alone can treat a defendant as fairly as he would be treated by a jury. ¹⁶⁶

The juvenile courts' failure to recognize the "full panoply of procedural safeguards" afforded their adult counterparts is one of the major reasons abolitionists call for the termination of the juvenile court system. ¹⁶⁷ However, as frene Rosenberg, Professor of Law at the University of Houston Law Center and author of numerous articles on juvenile law, explains, although the right to a jury trial is a guarantee in the criminal system, it is one that is not frequently exercised. ¹⁶⁸ Furthermore, thirteen states have made changes to their statutes to allow for jury trials in juvenile delinquency adjudication proceedings as a matter of state ¹⁶⁹ Some states have even used juries consisting of juvenile peers for lesser offenses. ¹⁷⁰ In these courts, former juvenile offenders serve as the accused's fact-finder because of their experiences with the system. ¹⁷¹ Justice Paul J. Cavanaugh, a juvenile judge from the Maiden District Court in Massachusetts, feels that the juveniles who have already gone through the system have a greater respect for the system and, in some cases, these juvenile juries determine innovative sentences such as suspension of the juvenile offender from the high school football team for one game. ¹⁷²

N. PROBLEMS WITH ABOLITION

In the myopic view of the abolitionists, the "procedural parity [that developed after Kent and Gault] with [the] adult system may have sounded the death-knell for the juvenile courts." ¹⁷³ Thus, the abolitionists recommend a burial for the system. However, if the juvenile court is abolished due to the Supreme Court's decisions which have placed juvenile delinquents on almost equal footing with adult criminal defendants, the very important sub-class of unruly child will be lost) ¹⁷⁴

A. Effect of Abolition on the Unruly Child ClassifIcation

If the juvenile court system is abolished, what will be done with children who simply need guidance and early intervention before they start heading down the road to a life of crime? What should a police officer do when he sees an adolescent walking the streets during a school day, or out at three o'clock in the morning? ¹⁷⁵ The officer can do nothing. The officer's hands will be tied because there will be no juvenile court to handle these minor offenses, and the infractions are not serious enough to warrant review from an already overburdened criminal court system. ¹⁷⁶ The unfortunate result will be a reduction in early intervention. The system will be forced to wait until the juvenile commits a serious crime, allowing the courts to have control over him-but by this time the court's intervention is surely too late. ¹⁷⁷

Professor Rosenberg furthers her argument against the abolition of the juvenile system by stating:

[U]nderlying the views of the abolitionists, at least unconsciously, is a somewhat idealized or romanticized vision of adult courts in which the criminal guarantees of the Bill of Rights are meaningfully enforced. . . . [H]owever, the reality of adult criminal proceedings is crowded courtrooms in which justice is dispensed through and pleas negotiated by defense attorneys who are often less than zealous and well-prepared advocates . . . . ¹⁷⁸

Although the criminal courts might be able to provide some extra protection to juveniles if the two systems were merged, this protection would likely evaporate. Juvenile delinquents would fall through the cracks without the individual attention that they receive at the juvenile court level, because the already over-crowded criminal court would not pay heed to the juvenile's needs until he has committed a serious offense. ¹⁷⁹

B. Saving Judicial Resources Through Abolition is Shortsighted

If the juvenile court system is abolished, after almost a full century in existence, the treatment of juveniles who commit crimes will have "practically gone full circle in one hundred years: from prosecution of juveniles in the adult criminal courts to adjudication in a separate non-criminal system, and then back to prosecution of some juveniles in the adult system." ¹⁸⁰ The abolition of the juvenile court system will inevitably create more problems than it will solve. The most immediate problem it will create is that society will lose the subsystem that the juvenile court provides which governs unruly children or persons in need of supervision (PINS) for acts that would not be considered criminal if committed by an adult. ¹⁸¹ A second problem that may not have an immediate impact, but will have to be imminently dealt with, is the abolitionists' notion of saving judicial resources." ¹⁸² Although the abolitionists may be correct in their contention that the abolition of the juvenile court system, and its subsequent merger with the criminal court system, will produce savings of judicial resources and social services (expended to maintain two separate systems as well as savings in the frictional costs of transferring a juvenile to the adult criminal systems), these apparent savings are unrealistic. ¹⁸³

Any short-term savings would be drastically surpassed by the increased cost of incarceration. ¹⁸⁴ For example, the annual cost of incarceration for one person is twenty to thirty thousand dollars." ¹⁸⁵ With the conviction rates in the criminal system at more than eight-six percent in federal courts and ninety-one percent in state courts, any savings in the short term will be dramatically surpassed by the spending in the future, once the juvenile offenders are integrated into the adult system.

Moreover, the incarceration of juvenile offenders will not decrease the crime rate, because the rate of recidivism among juvenile criminals after they reach the age of majority is quite low. ¹⁸⁶ Furthermore, the United States incarcerates more of its citizens than any other country in the world, with little effect on the crime rate." ¹⁸⁷

A likely response from the abolitionists to this ominous forecast is that, with the merged system, the states can simply convert the old detention homes and industrial schools into prisons for the juvenile offenders. ¹⁸⁸ Although this sounds like a reasonable alternative, many of the schools and detention centers currently receive a fair amount of their funding from private resources. ¹⁸⁹ The private, charitable, and religious organizations which provide the-financial backing that enables these schools and detention centers to be an integral part of the juvenile system will likely be lost or seriously impaired through the merging of the two systems. ¹⁹⁰

The financial resources provided by these organizations to operate the detention centers will also be adversely affected because, after the merger, it will be difficult to determine whether contributions are going to their intended beneficiaries-the children-or being used to help adult criminals. ¹⁹¹ Because of this difficulty in differentiating who is receiving the benefit of their goodwill, the agencies' contributions will be decreased or discontinued, thereby costing the state more in the long run to cover the financial resources that were once provided by private agencies. ¹⁹²

The last argument against the juvenile court system is that the system is "too soft" on juvenile. ¹⁹³ However, a closer examination of a recent study conducted by the National Council on Crime and Delinquency indicates that, on the contrary, the juvenile court system is tougher on juvenile offenders than the criminal court system. ¹⁹⁴ In this study, researchers analyzed how violent juvenile offenders were processed through juvenile courts in ten states. ¹⁹⁵ The results disclosed that the juvenile courts responded more severely to violent crime than their criminal counterparts. ¹⁹⁶ This study also revealed:

[I)n these 10 juvenile courts, 57 percent of all robbery referrals, 55 percent of all violent sex crime referrals, 53 percent of murder and 44 percent of all aggravated assault referrals resulted in guilty dispositions.

By comparison, a recent study of adult felony sentences in state courts found that the odds of an arrested adult being convicted in U.S. state criminal courts for murder, rape, robbery, or aggravated assault charges ranged from a low of 13 percent for aggravated assault to a high of 55 percent for murder." ¹⁹⁷

Since the perception that the juvenile system is soft on juvenile criminals is obviously not borne out in conviction rates, the public's belief that the juvenile justice system is weak must emanate from sentencing procedures.

In most jurisdictions, even if the juvenile is waived into the criminal court system, a juvenile charged with committing a violent offense such as murder or rape, will be committed to a youth detention center only until he reaches the majority age of twenty-one. ¹⁹⁸ Upon reaching the age of majority, the juvenile delinquent is released, and his juvenile record is erased. ¹⁹⁹ This legislative loophole has some communities irate, and thus has fueled the abolitionists' fire-calling for the abolition of the juvenile court system because it is "soft" on the sentencing of juveniles. Texas has reacted to this legislative loophole in the juvenile system by subjecting violent criminal offenders who are between the ages of ten and sixteen to a potential sentence of up to forty years in prison. ²⁰⁰ Under these statutory changes, the juvenile serves a portion of the sentence at the youth detention center-until he reaches the age of eighteen. ²⁰¹ At that time, the juvenile court will conduct a hearing to determine whether the juvenile is responding to the rehabilitative program. ²⁰² If it is found that the juvenile is responding to the rehabilitation program, and shows potential for further rehabilitation, the juvenile will be detained at the youth detention center until his twenty-first birthday, at which time he will be released. ²⁰³ However, if he is not responding to the rehabilitation program when he turns twenty-one, he will be transferred to the adult correctional facility to serve the remainder of the sentence. ²⁰⁴

V. SUGGESTED REFORM TO THE EXISTING SYSTEM

A. Decrease Waiver

Some reforms must be implemented in the existing system to address the flaws that have generated the abolitionist movement. Some of the reforms, such as eliminating the legislative loopholes that require the automatic release of violent juvenile offenders when they reach the age of majority, can be made by legislative enactments. Similarly, the abuse of legislative waiver must be curbed to allow the juvenile judges to use their discretion in determining whether the juvenile will be waived into criminal court. ²⁰⁵ The legislative waiver to the adult criminal system should be limited to violent crimes such as murder, aggravated assault, and rape, and juvenile judges should be given the flexibility to determine the proper adjudicatory measures for the juveniles who are committing property crimes such as robbery, larceny, auto theft, and drug-related offenses.

In Ohio, a juvenile may be waived into criminal court if he commits a crime that, if committed by an adult, would be considered a felony. ²⁰⁶ This broad waiver does not distinguish between first degree felony cases, like murder, and lesser felony offenses, like vandalism. ²⁰⁷ Juveniles can be waived into adult criminal court for disrupting public service ²⁰⁸' (a felony in the third degree such as tampering with a pay phone), criminal damaging or endangering ²⁰⁹ (possible with the Ranch's Child Care Supervisor, Greg Bailey, who told me that the Ranch, for the most part, serves as a "last-chance" intervention program for unruly children, hoping to intervene before they head further down the road to a life of crime. ²²⁶

Studies show that a greater emphasis on these community-based systems amounts to a smaller number of juveniles being incarcerated, thereby saving the state substantial financial resources. ²²⁷ For example, in one year alone, Massachusetts saved over eleven million dollars. ²²⁸ Probably the best reasons offered for Massachusetts' progressive lead is that they have not continued to depend on large institutions to serve as its corrective instrument. ²²⁹

The Massachusetts system is based on a model provided by the Office of Juvenile Justice and Delinquency Prevention (OJJDP). ²³⁰ This model is a "comprehensive strategy for serious, violent, and chronic juvenile offenders," and suggests a system that provides "graduated sanctions for offenders [that] should combine reasonable, fair, humane and appropriate penalties with rehabilitative services." ²³¹ The top tier of this three-tiered model places the most dangerous youths in secured facilities, and, because they are not placed with nonviolent offenders, they are afforded the individual attention needed. ²³² "The next highest risk group on the continuum of juvenile offenders will be placed in a three month program followed by an intensive nine month after care program." ²³³ "The final group will be placed in a day treatment program where they will receive intensive supervision." ²³⁴

Ohio has yet to implement major reforms in its corrective institutions. Ohio still relies on the old industrial schools to serve as its juvenile detention centers. ²³⁵ With respect to juvenile law reform, Ohio has followed the lead of states like Minnesota. ²³⁶One of the drafters of the recent reforms to the Minnesota juvenile system, however, is one of the leading critics of the juvenile system, and is calling for its abolition. 237 In this respect, Ohio should not follow Minnesota.

Ohio should incorporate some of the aspects of the Massachusetts and Maryland programs into its juvenile code to handle both the violent juvenile delinquents and nonviolent unruly juveniles. The solution is not to destroy the entire system and transfer all juvenile offenders to the adult criminal system.

VI. CONCLUSION

The juvenile court system has adjudicated juvenile offenders for ninety years with the same purpose in mind-to provide for the best interests of the juvenile. At the very least, the juvenile court system has served both society and the juvenile offender as a means to deal with juvenile crime. Although the U.S. Supreme Court has formalized the juvenile court by recognizing the juvenile's procedural due process rights, the juvenile court's motive has remained the same-to consider the best interests of the juvenile. Those who advocate the abolition of the juvenile court system because of this procedural parity between it and the adult criminal court system fail to consider the important purpose that juvenile courts serve by addressing acts perpetrated by juveniles that would not be considered crimes in the adult system.

For the juvenile court to function in the best possible manner, state legislatures must curb their use of the political machinery to continually expand the list of crimes that would require automatic transfer to the adult criminal system. They should allow juvenile judges to use their discretion in determining whether or not the juvenile court should maintain jurisdiction. States may also wish to develop systems similar to that of Massachusetts, which has departed from the large industrial schools and developed a system where the violent and nonviolent juvenile offenders are separated, and where the violent offenders are incarcerated in smaller institutions that provide more individual attention and counseling. At the same time, nonviolent offenders are placed in community-based programs that enable the community to become involved in the rehabilitation of its delinquent youth.

The juvenile court system is certainly not perfect. There are clearly problems which must be addressed. As this comment has attempted to show, however, the abolition of the system, and subsequent merger with the adult criminal system, is definitely not the answer.

1. Building More Prisons Is Not the Answer to Juvenile Crime Expert Says Alternative Detention Programs Saves Lives and Money, PR NEwSwIRE, July 14, 1994, available in LEXIS, News Library, Curnows File, at *(~reen) I [hereinafter Building Prisons)(citing MICHAEL A. JONEs & BARRY KRISBERG, NATIONAL COUNCIL ON CRIME AND DELINQUENCY, IMAGES AND REALITY JUVENILE CRIME, YOUTH VIOLENCE AND PUBLIC POLICY 2 (1994)).

2. Id.

3. Id.

4. See Gordon A. Martin, Jr., The Delinquent and the Juvenile Court: Is There Still A Place For Rehabilitation?, 25 CONN. L. REV. 57, 90 (1992).

5. Id.

6. Id.

7. See id.

8. See generally ANTHONY M. PLATr, THE CmLD SAVERS: THE INVENTION OF DELINQUENCY (1969) (discussing the "origin of delinquency" and presenting the age~o1d argument of "nurture versus nature" in analyzing the roots of juvenile delinquency).

9. See Barry C. Feld, The Transformation of the Juvenile Court, 75 MINN. L. REV. 691,693 (1991); Janet E. Ainsworth, Re-imagining Childhood and Reconstructing the Legal Order: The Case for Abolishing the Juvenile Court, 69 N.C. L. REv. 1083, 1106-07 (1991) (proposing the complete abolition of the juvenile system because of the change in society's views towards the rehabilitation of both juvenile and adult offenders, from rehabilitation to retribution, and further proposing the merger of the juvenile systemwith the adult criminal system to afford the juvenile offenders greater procedural safeguards, such as the assistance of counsel); Katherine H. Federle, The Abolition of the Juvenile Court: A Proposal for the Preservation of Children's Legal Rights, 16 J. CONTEMP. L. 23, 23-24 (1990) (proposing three reasons for the abolition of the juvenile court: statistical increases in juvenile crime, legislative reforms which decrease the role of the juvenile court, and Supreme Court decisions that have recognized juveniles' due process rights).

10. The term "abolitionist" refers to advocates of a recent movement to abolish the juvenile court system. Leading juvenile scholars, Professors Barry Feld, Janet Ainsworth, and Katherine Hunt Federle, have supported the abolition movement because of their disappointment resulting from the juvenile court system's failure to achieve its initial goal of rehabilitation and its inadequacy in recognizing juveniles' procedural due process rights. See Irene M. Rosenberg, Leaving Bad Enough Alone: A Response to the Juvenile Court Abolitionists, 1993 WIs. L. REV. 163, 165. Professor Rosenberg opposes these scholars "who believe it would be wise to abolish the delinquency jurisdiction and try children as criminals in the adult court." Id. See also Martin, supranote 4, at 60 n.8.

11. E.g., In re Gault, 387 U.S. 1, 30-31 (1967). See also Feld, supra note 9, at 695 (stating that "[i]n shifting the formal focus of the juvenile courts from 'real needs' to legal guilt, Gault identified two crucial disjunctions between juvenile justice rhetoric and reality: the theory versus practice of rehabilitation, and the differences between the procedural safeguards afforded adults & and those available to juveniles").

12. Greed v. Jones, 421 U.S. 519 (1975); In re Winship, 397 U.S. 358 (1970). It has been argued that once the Court opened the due process door, and recognized certain due process rights of juveniles, it created a conflict between the rehabilitative juvenile purpose, which requires flexible sentences, and the due process prohibition of the deprivation of liberty. See generally, Feld, supra note 9, at 695-96 (recognizing procedural safeguards in Gault, such as the right to counsel and the right to pre-sentence determination). See also Ainsworth, supra note 9, at 1112-15 (discussing the adverse effects of the Supreme Court's recognition of due process safeguards on the principal of parens patriae); Federle, supra note 9.

13. See Winship, 397 U.S. 358.

14. Robert 0. Dawson, Future Trends in Criminal Procedure: The Future of the Juvenile Justice System: Is It Time To Abolish The System?, 81 J. CalM. L. & CRiMINOLOGY 136, 141 (1990).

15. Id. at 141-42

16. Id. at 143-45.

17. Id.

18. MICHAEL A. JONES & BARRY KRISBERG, NATIONAL COUNCIL ON CRIME AND DELINQUENCY, IMAGES AND REALITY: JUVENILE CRIME, YOUTH VIOLENCE AND PUBLIC POLICY 1 (1994).

19. Feld, supra note 9, at 724. But see JONES & KRISBERG, supra note 18, at 25.

20. Feld, supra note 9, at 723-24.

21. See id. at 724.

22. See, e.g., Stephen Wizner & Maty F. Keller, The Penal Model of Juvenile Justice.' Is The Juvenile Court Delinquency Jurisdiction Obsolete?, 52 N.Y.U. L. REv. 1120, 1121(1977) (arguing that the juvenile court has failed to achieve what they believe to be its two primary objectives:(I) protecting the general public from juvenile crime; and, (2) rehabilitating the juvenile offender). Cf Martin, supra note 4, at 90-91 (arguing against the effectiveness of the juvenile court on the recidivism rate in South Carolina). See also Rosenberg, supra note 10, at 174 n.66 (acknowledging that Professor Guggenheim's change of heart on the abolition of the juvenile court is because of his intimate involvement with the juvenile court and its deficiencies but stating that he was under the misconception that the adult criminal court system was better suited to handle juvenile delinquents); Martin Guggenheim, A Call to Abolish the Juvenile Justice System, CHILDREN'S RT5. Rev., June 1978, at 1, 3 (advocating the abolition of the juvenile system, but as Professor Rosenberg reveals in her recent essay on the juvenile court, he has had a change of heart).

23. 383 U.S. 541 (1966).

24. Id. at 554.

25. 387 U.S. 1 (1967).

26. Id. at 30-3 1.

27. See Wizner & Keller, supra note 22, at 1121-22 (discussing how prior to the Court's decision in Gault, the juvenile system "compromised important legal values").

28. James Adams, He's Killed Four, He'll Kill Again and He's Coming Out, TIMES NEWSPAPER LIMITED, June 12, 1994, available in LEXIS, News Library, Curuws File, at *(screen) 3 ("According to the FBI, in the past ten years, arrests of juveniles for violent crimes has increased by 50%

29. Building Prisons, supra note 1, at (screen 2). But see Adams, supra note 28, at *(screen)

3 ("[A]rrests of juveniles under 18 for violent crimes has increased by 50% . . . and murder and manslaughter by 128%.").

30. Building Prisons, supra note 1, at *(screen) 3.

31. JONEs & KRISBERG, supra note 18, at 1.

32. See, e.g., Thompson v. Oklahoma, 487 U.S. 815, 838 (1988) (denying the use of the death penalty for a sixteen-year-old juvenile because the court considered it cruel and unusual punishment). But see Stanford v. Kentucky, 492 U.S. 361, 364 (1989) (determining, one year after Thompson, that the death penalty of an eighteen year old was not cruel and unusual punishment in violation of the Eighth Amendment). See Frank W. Heft, Jr. & David Smith, Death Penalty for Teens, A.B.A.J., June 1989, at 42-43 (detailing excerpts from the opposing attorneys' briefs in the Stanford case, where the Court developed the bright-line rule that eighteen years old is society's recognized point of adulthood, and therefore, recognizing that an eighteen year old can be put to death); Joseph L. Hoffman, On the Perils of Line Drawing: Juveniles and the Death Penalty, 40 HASTINGs L.J. 229, 232 (1989) (discussing whether the death penalty for juveniles "is consistent with the fundamental retributive goal of ensuring that every person who commits a crime receives his or her 'just desserts,' or the punishment that is appropriate in light of the harm caused by the crime and the offender's culpability"). Cf Lawrence A. Vanore, The Decency of Cap ital Punishment for Minors: Contemporary Standards and the Dignity of Juveniles, 61 IND. L.J. 757, 760-61 (1986) (arguing that the consideration of the age of the defendant as a mitigating factor in determining whether the death penalty is appropriate for a juvenile is not sufficient because the death penalty is never appropriate for juvenile offenders).

33. Building Prisons, supra note 1, at *(screen) 2.

34. Feld, supra note 9, at 693.

35. This comment is limited to the discussion of the juvenile court's treatment of delinquents and unruly children. The juvenile courts' treatment of abused or neglected children is not within the scope of this article. See Wright S. Walling & Gary A. Debele, Private Chips Petitions in Minnesota: The Historical and Contemporary Treatment of Children in Need of Protection or Services, 20 WM. MITCHELL L. REv. 781 (1994); Meredith F. Sopher, "The Best of All Possible Worlds ": Balancing Victims' and Defendants' Rights in the Child Sexual Abuse Case, 63 FORDHAM L. REv. 633 (1994); Francis B. McCarthy, The Confused Constitutional Status and Meaning of Parental Rights, 22 GA. L. REv. 975 (1988). See also Natalie L. Clark, Crime Beginsat Home: Let's Stop Punishing Victims & Perpetuating Violence, 28 WM. & MARY L. REv. 263, 265 (1987) (discussing violence in the home, the battered women's syndrome, and what happens to the children in this dysfunctional setting); Donald W. Duquette & Sarah H. Ramsey, Representation of Children in Child Abuse and Neglect Cases: An Empirical Look at What Constitutes Effective Representation, 20 U. MICH. J.L. REF. 341, 342-43 (1987) (dealing with some aspects of both neglected children and abused children cases); Timothy B. Daily & Judith A. Cook, Child Neglect & Dependency: Juvenile Court Structure & Conflict Between Law & Social Work, J. APPLIED SOC. Sd. 267 (1984) (analyzing the attorneys' role in both neglected and abused children cases).

36. Due to the 95-year history of the juvenile court system, this comment gives only a cursory overview of the background of the juvenile court, and focuses more on the development of the court since the Supreme Court rendered it first decision regarding juvenile court procedures. See generally Kent v. United States, 383 U.S. 541 (1966) (rendering its first juvenile procedure decision).

37. Sanford Fox, Juvenile Justice Reform: A Historical Perspective, 22 STAN. L. REv. 1187,1197-99 (1970) (discussing that as early as the l800s it was widely recognized that rehabilitation for criminals had failed). At the turn of the century some of the progressive reformers believed that criminals could be rehabilitated as well but the rehabilitative ideal was soon lost in the adult system soon after it was introduced because of the increased rate of recidivism. See PLATr, supra note 8, at 12 (commenting on the "rehabilitative ideal" that had dominated early American criminology). See also United States v. Mistretta, 488 U.S. 361, 371 (1989) (listing the Federal Sentencing Guidelines for convicted criminals, the Court held that even though the commissions that constructed the guidelines were members of the judicial branch, the guidelines were not legislation, and thus, not a violation of the constitution separation of powers); PLATr, supra note 8, at 10 1-07 (providing a brief history of the factors leading up to the establishment of a juvenile court).

38. 1899 Ill. Laws 131. See PLATI, supra note 8, at 133-34 ("On April 14, 1899 both Houses of the Illinois legislature passed 'an act to regulate the treatment and control of dependent, neglected and delinquent children."). See also Mistrerta, 488 U.S. at 37 1-400.

39. 1899 Ill. Laws 131, 131-37.

40. Id. at 131.

41. PLATT, supra note 8, at 139 (noting a similar version was adopted in Ohio in 1902).

42. Francis B. McCarthy, The Serious Offender and Juvenile Court Reform: The Case for Prosecutorial Waiver of Juvenile Court Jurisdiction, 38 ST. Louis U. L.J. 629, 641 (1994). But see Fox, supra note 37, at 1192 (finding that the original act was aimed at "salvaging" the child offender who had committed a petty offense from a more serious life of crime).

43. McCarthy, supra note 42, at 642-43 n.64.

44. In re Gault, 387 U.S. 1, 60 (Black, J., concurring).

45. PLArF, supra note 8, at 137.

46. Id.

47. Id. at 137. But see Fox, supra note 37, at 1192 (arguing that this doctrine is misunderstood because of the failure to recognize the distinction between a neglected child and a delinquent child).

48. 196 F. 123 (C.C.S.D. Ohio 1911). In Januszewski, Justice Sater went on to say of the state's role as parens patriae that:

Under it, the state, which, through its appropriate organs, is the guardian of the children within its borders, assumes the custody of the child, imposes wholesome restraints, and performs parental duties, and at a time when the child is not entitled, either by the laws of nature or of the state, to absolute freedom, but is subjected to the restraint and custody of a natural or legally constituted guardian to whom it owes it obedience and subjection.

Id. at 127.

49. Id. See JAMES G. CARR & DON J. YOuNG, ANDERSON'S OHIO FAMILY LAW § 1.6 (1989).

50. OHIO Rev. CODE ANN. § 2151.01 (Anderson 1994).

51. 383 U.S. 541 (1966). Gault and Kent were decided just a little over a year apart.

52. Id. at 543.

53. 387 U.S. 1 (1967).

54. Id. at 4.

55. McCarthy, supra note 42, at 655 (1994).

56. Id.

57. Id.

58. Id. at 654.

59. Id.

60. See Feld, supra note 9, at 723.

61. Id.

62. OHIO REV. CODE ANN. § 2151.01 (Anderson 1994).

63. Id.

64. Compare OHIO Rev. CODE ANN. § 2151.01 (Anderson 1994) (enumerating the juvenile court's purpose and construction) with OHIO R. CRIM. P. 1(B) (Anderson 1993) (enumerating the purposes of the adult criminal justice system). The criminal rule provides:

(B)Purpose and Construction-These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed and applied to secure the fair, impartial, speedy, and sure administration of justice, simplicity in procedure, and the elimination of unjustified expense and delay.

OHIO R. CRIM. P. 1(B) (Anderson 1993).

65. Robert J. Willey, The History of Juvenile Law Reform in Ohio Since Gault, 12 OHIo N.U.

L. REv. 469, 473-75 (1985). See Dawson, supra note 14, at 140 (discussing the different terminology between the adult criminal system and the juvenile system). Dawson states:

[A]dults are "arrested" but juveniles are "taken into custody." . . . Adults are "booked" ...while juveniles are "processed." . . . Adults are jailed while awaiting trial or release juveniles are "detained." . . . Adults "plea bargain" most of their cases, while juveniles "stipulate" most of theirs Adults have "trials" while juveniles have "adjudication hearings." Adults are found "guilty" or "not guilty" while juveniles are found to be "within the jurisdiction of the court" or "not within the jurisdiction" of the court. An adult case proceeds to "sentencing" if the "defendant" is found guilty, while a juvenile case proceeds to "disposition" if the "respondent" is adjudicated.

Id.

66. OHIO Rev. CODE ANN. § 2151.26 (Anderson 1993).

67. OHIO REV. CODE ANN. § 2151.02 (Anderson 1993). The code defines a delinquent child as a child "[w]ho violates any law of this state, the United States, or any ordinance or regulation of a political subdivision of the state, which would be a crime if committed by an adult." Id.

68. OHIO REV. CODE ANN. § 2151.022 (Anderson 1993). [An~ "unruly child" includes any child:

(A) Who does not subject himself to the reasonable control of his parents, teachers, guardian, or custodian, by reason of being wayward or habitually disobedient;

(B) Who is habitually truant from home or school;

(C) Who so deports himself as to injure or endanger the health or morals of himself or others;

(D) Who attempts to enter the marriage relation in any state without the consent of his parents . .

(B) Who is found in a disreputable place, visits or patronizes a place prohibited by law, or associates with vagrant, vicious, criminal, notorious, or immoral persons;

(F) Who engages in an occupation prohibited by law, or is in a situation dangerous to life or limb or is injurious to the health or morals of himself or others;

(G) Who has violated a law applicable only to a child.

Id. In other jurisdictions, an unruly child may be referred to as a person in need of supervision (PINS) or a minor in need of supervision (MINS). See Dawson, supra note 14, at 147.

69. See OHIO REv. CODE ANN. §~ 2151.354 (Anderson 1993).

70. Id.

71. These cases are obviously not the only Supreme Court decisions over the last thirty years that have affected the juvenile offender in the juvenile court system, but they have been found to have an influential affect because of their consideration of the due process rights of the juvenile. See Feld, supra note 9, at 16 1-67. Other Supreme Court cases over the last thirty years have effected the individual rights of juveniles delinquents and unruly juveniles. See, e.g., Stanford v. Kentucky, 492 U.S. 361, 380 (1989) (holding that the execution of a sixteen or seventeen year old does not violate due process); Thompson v. Oklahoma, 487 U.S. 815, 822 (1988) (holding that the death penalty for a fifteen year old was in violation of the juvenile's Eighth Amendment right against cruel and unusual punishment).

The Court also decided cases affecting the exclusionary rule. E.g., New Jersey v. T.L.O., 469 U.S. 325 (1985). In T.L.O., the Court examined whether the exclusionary rule of the Fourth Amendment was a proper remedy to an alleged illegal search carried out on the public school property. Id. at 327. The Court found that the exclusionary rule does apply to juvenile proceedings to exclude illegally obtained evidence in violation of the Fourth and Fourteenth Amendments. Id. at 333-35. The Court found there was no Fourth Amendment violation present because the interest of maintaining a proper educational environment outweighed the individual's right to be free of illegal searches. Id. at 339. Furthermore, the Court did not apply the probable cause analysis of Illinois v. Gates, 462 U.S. 213, 219 (1983) (using a totality of the circumstances to determine whether there is a fair probability that a crime was committed and that this individual committed the crime). Nor did the Court apply the Terry Fourth Amendment search and seizure analysis of reasonable suspicion of articulable facts in the stop and frisk of the juvenile in T.L. 0. See Terry v. Ohio, 392 U.S. 1, 10 (1968). Instead, the Court adopted a lessor standard of reasonable grounds in order to justify the stop and frisk on school property. T.L.O., 469 U.S. at 341; Breed v. Jones, 421 U.S. 519, 526 (1975) (finding that the trial in the Superior Court for the same offense that was tried in juvenile court was a violation of the Double Jeopardy Clause of the Fifth Amendment as applied to the state through the Fourteenth Amendment). But see Swisher v. Brady, 438 U.S. 204, 215 (1978) (holding that the Double Jeopardy Clause of the Fifth Amendment does not prohibit the state from filing exceptions to the proposed non-delinquency findings of the Master with the juvenile court, thus empowering the juvenile court judge to accept, modify or reject the master's proposals of non-delinquency); Schall v. Martin, 467 U.S. 253, 268 (1984) (reversing the Second Circuit Court of Appeals and finding that section 3 20.5(3) of the New York Family Court Act that allowed pretrial "detention was not punishment imposed without proof of guilt established according to the requisite constitutional standard"). The Court reasoned that the preventive detention serves a legitimate state objective, and that the procedural protections afforded pretrial detainees satisfy the due process concerns of the Fourteenth Amendment. Id. at 269. See Fare v. Michael C., 442 U.S. 707, 709 (1979). In Fare, the Supreme Court extended the procedural safeguards recognized in Miranda v. Arizona, 384 U.S. 436, 444-45, 473-74 (1966), which are designed to protect the rights of the accused under the Fifth and Fourteenth Amendments, to be free from compelled self-incrimination during custodial interrogation. However, the Court held that requesting to speak with a probation officer is not consider invoking his Fifth Amendment right to counsel. Id.

72. 383 U.S. 541 (1966).

73. Id. at 543. Morris Kent was sixteen years old and the juvenile court had exclusive jurisdiction over these juvenile offenders. Id.

74. Id. at 544.

75. Id. at 550.

76. Id. at 547-48.

77. Id. at 548-49.

78. Id. at 548.

79. Id. at 553.

80. Id.

81. Martin, supra note 4, at 67.

82. Kent, 383 U.S. at 555.

83. McCarthy, supra note 42, at 649.

84. Id. at 651.

85. Id.

86. Id.

87. Kent v. United States, 383 U.S. 541, 565 (1966).

88. Id. at 566.

89. McCarthy, supra note 42, at 653.

90. Id. at 653-54.

91. Martin, supra note 4, at n.14.

92. Id.

93. Id.

94. Id. at 63.

95. Id.

96. Rorie Sherman, Juvenile Judges Say: Tune to Get Tough, NAT'L L.J., August 8, 1994, at 24 (noting that major cities in the U.S. have seen dramatic increases in the number of juveniles being transferred as a result of legislative waiver).

97. McCarthy, supra note 42, at 655 n.136 (commenting on the case Commonwealth v. Kocher, 620 A.2d 1308 (1992), a Pennsylvania case where a nine year old was charged with the apparent intentional murder of a twelve-year-old girl and faced life imprisonment, and posing the question: should a nine year old face life in prison "because he came within the definition of an excluded offense").

98. JoNES & KRISBERG, supra note 18, at 4.

99. Id.

100. Id. The difference in drug waiver cases was represented by a 152% increase over that five-year span. Id. The drastic increase in the number of transfers for drug-related matters has been attributed to the introduction of crack cocaine into many urban areas, as well as increased gang activity involving the distribution of this new drug. McCarthy, supra note 42, at 636.

101. Rosenberg, supra note 10, at 175.

102. OHio REv. CODE A~mi. § 2151.26 (Anderson 1994) ("[After a complaint has been filed alleging that a child is a delinquent-by virtue of committing an act that would constitute a felony if committed by an adult-the court may transfer the case for criminal prosecution ).

103. See, e.g., In re Leonhardt, 610 N.E.2d 1238 (transferred for grand theft auto, a second degree felony property offense); In re Samkas, 608 N.E.2d 1172, 1175 (1992) (transferred for robbery, a third degree felony property offense); In re Miller, 611 N.E.2d 451, 451-52 (1992) (transferred to adult criminal court for domestic violence); State v. Blogna, 573 N.E.2d 1223, 1225 (1990) (transferred into adult criminal court for an accident while driving under the influence); State v. Houston, 590 N.E.2d 839, 841 (1990) (transfer by legislative waiver to be tried as an adult for aggravated trafficking in drugs, a third degree felony in possession of property offense). But see State v. Hambel, 1994 Ohio App. LEXIS 3147, at *2 (July 14, 1994) (transferred for voluntary manslaughter); In re Rivera, 1994 Ohio App. LEXIS 269, at *6 (Jan. 27, 1994) (transferred for murder, a first degree felony offense); State v. Carter, 272 N.E.2d 119, 119 (1971) (waived for armed robbery); In re Jackson, 257 N.E.2d 74, 76 (1970) (transferred for the malicious killing of a Cleveland police officer).

104. 387 U.S. 1 (1967).

105. Id. at 33.

106. Id. at 13.

107. id. at 3

108. Id. at 13.

109. Id. at 4 (noting that at the time of the offense Gerald Gault was fifteen years old).

110. Id.

111. Id. at 8.

112. Id. at 5 (noting Gerald's parents were both at work at this time).

113. Id. at 5.

114. Id.

115. Id. (reciting that the following day, the probation officer filed a petition with the court, however, a copy of the petition was not served on the Gaults).

116. Id. at 6.

117. Id.

118. Id.

119. Id.

120. Id. at 7-8.

121. Id. at 8.

122. Id. at 9-10.

123. Id. at 33.

124. Id. at 50 (referring to the proceeding as civil because it is based on the theory of the state acting as parens patriae for the juvenile).

125. Martin, supra note 4, at n.7. See In re Fisher, 313 N.E.2d 851, 855 (1974) (referring to the delinquency proceeding addressed in Gault as "quasi-criminal").

126. Gault, 387 U.S. at 13. The Ohio case that first recognized Gault was In re Fisher, 313 N.E.2d 851, 855 (1974).

127. Gault, 387 U.S. at 33.

128. Willey, supra note 65, at 472.

129. Id.

130. Id.

131. Id. at 473-74.

132. Id. at 474.

133. CARR & YOUNG, supra note 49, § 3.1.

134. Id.

135. PLATT, supra note 8, at 54.

136. Willey, supra note 65, at 478 (noting in instances where juveniles who commit lesser offenses are being institutionalized with the more violent offenders).

137. Id.

138. Id.

139. Id.

140. Id. Utah, Massachusetts and Missouri's new systems are seemingly more effective because the three-tier systems separate juvenile offenders so that juveniles who commit lessor offenses are not placed in the same large institutions with more violent offenders, and, in essence, receiving lessons in criminality from these more violent offenders. JONES & KRISBERG, supra note 18, at 39-40.

141. Willey,supra note 65, at 479-80.

142. Id. at 480.

143. Id. Willey suggests that procedural guarantees should be universally applied in juvenile commitments hearings, whether the matter concerns an "unruly" child or a delinquent one. However, this may further erode the system and the philosophy of rehabilitation by formalizing the court. Id. at 480-81.

144. 397 U.S. 358 (1970).

145. Id. at 361.

146. Id. at 359.

147. Id. at 359-60 (noting Winship was charged with robbery by the New York Family Court for stealing $112 from a women's purse).

148. Id. at 360 (stating that the standard of proof applied by the New York Family Court was taken from the New York Family Court Act which provides that "any determination at the conclusion of [an adjudicatory] hearing that a [juvenile] did an act or acts was based on a preponderance of the evidence").

149. Id. at 365.

150. In re Samuel W., 247 N.E.2d 253, 260 (1969).

151. Winship, 397 U.S. at 365-366 (citing In re Gault 387 U.S. 1, 36 (1967)).

152. Id. at 359.

153. Id. at 359.

154. 403 U.S. 528 (1971).

155. Feld, supra note 9, at 723.

156. 403 U.S. 528 (1971).

157. Id. at 545.

158. Id. at 534-35.

159. Id. at 535.

160. Id.

161. Id. at 539. The Supreme Court consolidated this case with another juvenile case form North Carolina, which was on appeal for similar reasons. Id. at 534-35.

162. Id. at 541.

163. 265 A.2d 350, 354 (1970).

164. Id. at 354-55.

165. 403 U.S. at 541.

166. id. (citing Duncan v. Louisiana, 391 U.S. 145, 158 (1968)).

167. Feld, supra note 9, at 718.

168. Rosenberg, supra note 10, at 170 n.32.

In the twelve-month period ending June 30, 1990, there was a total of 56,519 criminal defendants in the United States District Courts, of whom 6181, or 10.9%, were tried by jury. Of the 46,725 defendants convicted in the federal courts during that time period, 39,734 entered pleas of guilty, while another 7l8 pled nob contendere, for a total of 86.6% of criminal convictions pursuant to pleas. In the state courts, for 1988, the statistics are even lower, disclosing that 91% of those charged with felonies pled guilty, with only 5% proceeding to trial by jury.

Id. (citations omitted).

169, Rosenberg, supra note 10, at 170 n.36. See ALASKA STAT. § 47.10.070 (1991); COLO. REV. STAT. § 19-2-501 (Supp. 1983); MAss. GEN. LAWS ANN. cli. 119, § 55A (West 1993); MTcH. COMP. LAWS ANN. § 712A.l7(2) (West 1993); MIsS. CODE ANN. § 43-23-15 (1993); MONT. CODE ANN, § 41-5-521(7) (1991); N.M. STAT. ANN. § 32-l-31A (Michie 1988); OKLA. STAT. ANN. fit. 10, § 1110 (West 1987); TEX. FAM. CODE ANN. § 54.03(c) (West Supp. 1995); W. VA. CODE § 49-5-6 (1992); WisC. STAT. ANN. § 48.31(2) (West 1987); WYo. STAT. § 14-6-223(c) (1994); ILL. ANN. STAT. ch. 37, para. 803-35 (Smith Third 1992); KAN. STAT. ANN. § 38-1656 (1986); S.D. CODIFIED LAWS ANN. § 26-8-3 1 (1984); VA. CODE ANN. § 16.1-272 (Michie 1988).

170. Patricia Nealon, Judge Wants Youths' Input in Sentences For Peers, BOSTON GLOBE, Jan. 2, 1994, at 21.

171. Id.

172. Id.

173. Feld, supra note 9, at 723.

174. Dawson, supra note 14, at 146.

175. Id. at 155.

176. Id.

177. Id.

178. Rosenberg, supra note 10, at 172-73 (recognizing that the abolitionists do make a good point as to the right to a jury trial).

179. See, e.g., Susan K. Knipps, What is a "Fair" Response to Juvenile Crime?, 20 FORDHAM IJRB. L.J. 455, 459 (1993) (discussing New York's juvenile offender classification which prosecutes juvenile offenders in the adult system for "specified serious offenses" such as murder in the first and second degree).

180. Knipps, supra note 179, at 456.

181. See OHIO REv. CODE ANN. § 2151.022 (Anderson 1994) (defining an unruly child).

182. Dawson, supra note 14, at 148.

183. See id.

184. Sonya Live (CNN television broadcast, Dec. 28, 1993), available in LEXIS, News Library, Curnws File, at *(screen) 16-18.

185. Id. In other studies it has been suggested that these figures for the cost of incarceration are low. In the study conducted by 48 Hours, their research revealed that the cost of incarceration for the juvenile offender is $60,000. 48 Hours: Teen Justice(CBS television broadcast, Oct. 12, 1994).

186. JONEs & KRISBERG, supra note 18, at 5.

187. Id.

188. Dawson, supra note 14, at 148. See Tom Morganthau et al., The Orphanage, NEWSWEEK, Dec. 12, 1994, at 30 (discussing the ludicrous response of the newly elected Republican Speaker of the House, Newt Gingrich, to the problems that face the juvenile system). Speaker Gingrich recommends that the United States juvenile system should revert back to the large, indiscriminatory, industrial school system, such as the one depicted in "Boys Town." Id. Not only would this digress from the fifty-plus years of progressive reform that the juvenile system has gone through, but it would also be impractical in these days of mass congressional budget cuts to propose expending additional federal funding for the construction of new and substantial more expensive industrial schools and juvenile detention centers. Id.

189. Id.

190. Id. See Fox, supra note 37, at 1225-29 (tracing a long history of private, charitable, and religious institutions contributions to the juvenile justice system). See also PLAIT, supra note 8, at 104-1 17.

191. Dawson, supra note 14, at 148-49; Interview with Greg Bailey, Child Care Supervisor of Maryland Sheriffs' Youth Ranch, in Buckeystown, Maryland (March 25, 1995). Mr. Bailey revealed that, although they are funded by the state, most of the construction and renovation of these buildings are funded by private donations. Id. Some 50 private individuals and local corporations in Frederick, Maryland donated their time and financial resources to the annual Christmas party held at the Ranch. Id.This type of financial and personal sacrifice would surely be lost were the juvenile system merged with the adult criminal court system. See generally Morganthau et al., supra note 188, at 30 (discussing Chicago's Mercy Home, where it cost almost $60,000 per year to care for a child, but 90% of which comes from private sources.)

192. Dawson, supra note 14, at 148-49.

193. JONES & KRJSBERG, supra note 18, at 21; Rosenberg, supra note 10, at 164.

194. JONES & KRISBERG, supra note 18, at 24-25. Cf Jill Smolowe, Going Soft on Crime, TIME, Nov. 14, 1994, at 63 (comparing the failures of states that have three-strike laws where a third felony could put a person away for life with successes of big brother and big sister programs, which are often mislabeled by politicians as "pork").

195. JoNES & KRISBERG, supra note 18, at 21-27.

196. Id. at 25.

197. Id.

198. Adams, supra note 28, at *(screen) 1-2. See Dateline: Teen Justice (NBC television broadcast, Oct. 5 1994). After a psychological exam and a recent attack on a detention center guard, Craig Price, the thirteen-year-old "serial killer" is not coming out and with the impending assault charges he may not be coming out for a while. Id.

199. Adams, supra note 28, at *(screen) 2.

200. Rosenberg, supra note 10, at 182.

201. Id. at 182.

202. Id.

203. Id.

204. Id.

205. Sherman, supra note 96, at A25.

206. OHiO REv. CODE ANN. § 2151.26 (Anderson 1993).

207. OHIO REV. CODE ANN. § 2909.05 (Anderson 1993).

208. OHIO REV. CODE ANN. § 2909,04 (Anderson 1993).

209. OHIO REV. CODE ANN. § 2909.06 (Anderson 1993).

to place them in the stable environment of the Youth Camp. Id.

226. Id. Mr. Bailey went on to discuss some of the success stories in the recent history of the camp. Id. For example, one student came to the school who was a drug runner since the age of eight in inner city Baltimore, came to the ranch at the age of eleven and now is succeeding in high school and extracurricular activities. Id.

227. JONEs & KRISBERG, supra note 18, at 39-40.

228. Id.

229. Id. at 39.

230. Prepared Testimony of Barry Krisberg, supra note 220, at p.2 ("[F]or most of those years [the OJJDP has] been a beacon of enlightened leadership and solid research for the juvenile justice field.").

231. Id.

232. Id.

233. Id.

234. Id. In Massachusetts this program is referred as the Intensive Supervision Program. Id.

235. Willey, supra note 65, at 509-10. Willey discusses Ohio's reliance on large industrial school facilities for juvenile delinquents like the Wood County Detention Center and the Mansfield Reformatory. Id. at 510.

236. Willey, supra note 65, at 530 (noting the Ohio Juvenile Code and Rules drew upon Minnesota's rules and reforms).

Orange County

40 Matthews Street
Suite 209
P.O. Box 216
Goshen, N.Y. 10924

Tel. 845.294.4080
Fax. 845.294.7673

Rockland County

100 Washington Avenue
P.O. Box 397
Suffern, N.Y. 10901

Tel. 845.357.7500
Fax. 845.357.7321