*1 al. v. PENNSYLVANIA McKEIVER et 21, 1971* June 10, 1970 Decided Argued December 322. No. al., the' 128, In Burrus et re cértiorari * Together with No. Carolina, argued 9-10, December North Supreme Court of *2 delivered an J., judgments and announced the Court’s Blackmun, . J.J., joined. J., opinion in C. and Stewart and White, which Burger, J., J., concurring opinion, p. 551. Brennan, filed a post, White, dissenting in concurring judgment No. and opinion an filed concurring in J.', opinion 128, post, p. filed an Harlan, in No. 553. opinion, J., dissenting filed a judgments, p. Douglas, post, 557.. joined, post, p. JJ., Marshall, which 557. Black E. Farmer appellants for the cause Daniel argued Roberts, brief were Jóhn S. him on the 322. With No. Jr., Brown, Schmidt, Harvey W. James Peter N Freedman.
Michael Meltsner cáuse for argued petitioners No. him on the Greenberg, 128. With briefs were Jack Chambers, Ferguson II, Julius L. James Anthony E. Amsterdam. Specter
Arleri appellee argued cause in No. 322. With him on the brief James D. Crawford. n Morgan,
Robert Attorney General, argued the cause for respondent, the State of North in No. 128. Carolina, With him on the Ralph brief were Moody, Deputy At- torney Vanore, and Andrew General, Jr., A. Assistant Attorney General. L. Scanlan argued the cause for the National
Alfred Council of Juvenile Judges as Court amicus curiae urging ' affirmance in No. 128. With him on the brief was Flynn. J. Martin
Briefs of amici curiae in No. 128 were by filed John J. Droney for the Commonwealth of Massachusetts; by C. Lynch, Thomas Attorney General, Harris, Albert W. Jr., Assistant Attorney General, and Deraid E. Granberg and lGloria F. DeHart, Deputy Attorneys General, for State California; by Norman for the Lefstein Public Defender Service for the District of Columbia et al. Justice Blackmun announced the judgments of .
Mr. the Court and an opinion in which The Chief Justice, Stewart, Justice and Mr. Justice Mr. join. White . These present cases the narrow but precise issue whether the Due Process Clause of the Fourteenth .Amendment the right assures by jury in the ad- judicative ..phase of a state court delinquency proceeding.
531 1 understandably, issue arises the Court for. series of already emphasized cases factors due.process has protective of juvenile: Haley Ohio,
1. v. 332 (1948), U. 596 S. concerned admissibility 15-year-old of a confession taken from a boy on that, trial for first-degree murder. It was held upon, the facts there Due Clause developed, Process. barred the use of the confession. Mr. Justice Douglas, in an said, which opinion joined, other Justices three “Neither man nor child can be to stand con- allowed which, by demned methods require- flout constitutional ments of process due of law.” 332 S., at 601. U. Gallegos Colorado, v. 370 U. (1962), S. 49 where
14-yeár-old on trial, was is to the same effect. States,
3. Kent v. United (1966), U. S. 541 con a 16-year-old cerned charged housebreaking, rob Columbia; bery, rape District The issue was propriety court’s waiver of juris “after, diction full investigation,” as permitted by the applicable statute. It emphasized the latitude possessed within which to-determine whether it should retain or jurisdiction waive procedural “assumes regularity sufficient in the particular circumstances satisfy the basic requirements process of due fairness, as well as compliance with the statutory requirement of ” ‘full a- investigation.’ S.,U. at 553. Gault,
4. In re 1U. S. (1967), concerned a 15-year- old, already on probation, committed Arizona as a delinquent after being apprehended, upon complaint lewd telephone. remarks Mr. Justice Fortas, writ- *4 ing the Court, reviewed the just cases cited and observed,
“Accordingly, while these cases relate only to re- aspects stricted of the subject, they unmistakably 532 impact, precise be their may that, whatever
indicate
Bill of
nor
Amendment
Fourteenth
neither
13.
S., at
387 U.
alone.”
for adults
Rights
deter-
a
by which'
proceedings
“the
on
focused
The Court
‘delin-
is a
juvenile
whether a
as to
is made
mination
part,
his
misconduct
alleged
result
as a
quent’
state
to a
committed
may
he
be
that
consequence
be
appears
“there
that
this, said
as to
and,
institution”
Due
that
proposition
from
dissent
little current
Kent was
Ibid.
play.”
role to
a
Clause has
Process
here in connection
view,
this
“We reiterate
to:
adhered
of ‘delinquency,’
adjudication
court
awith
Clause
Due Process
part of
which is
requirement
a
our Constitution.”
Amendment
Fourteenth
of the
held
was
proceeding,
Id.,
process,
Due
30-31.
at
right
advice as to
notice;
written
adequate
to embrace
and
confrontation;
appointed;
or
counsel, retained
self-incrimina-
against
privilege
cross-examination.
The Court
juvenile.
to the
tion
also held available
provide
a State must
deciding
whether
refrained
transcript or
or
a
review in
cases
appellate
hearings.
of the
recording
Brainard,
(1969), pre
sented, habeas hearings “shall providing statute informal an by the judge conducted without appellant’s hearing However, because that manner.” Louisiana, Duncan 391 v. had antedated decisions Illinois, Bloom 391 U. S. (1968), v. U. S. 146 given Duncan Bloom had-been and because- (1968), Woods, v. application only prospective DeStefano inap an (1968), DeBacker’s case was deemed U. S. His .jury trial issue. propriate one for resolution dismissed. Mr. Justice Black appeal was therefore separate dissents, Douglas, Justice took Mr. position .jury is entitled to a at
533 described Black stage. Justice adjudicative Mr. fundamental of surely one is which right “a this as English-speaking justice criminal aspects Douglas 34, and Justice at S., 396 world,” U. Mr. Four- by the Sixth required right it as a described is charged delinquency "where Amendments teénth be a adult, would an were person if the that, an offense 35. S., at U. jury.” by crime triable concerned (1970), U. S. Winship, 397 re 6. In taken having delinquency charged 12-year-old that held Court The purse. woman’s from a money against the accused protects Clause Process “the Due doubt reasonable beyond a proof except upon conviction crime with constitute necessary to every fact then went 364, and S., at U. charged,” 397 he is which :applicable, standard 368, that hold, at this on to delinquency of a stage adjudicatory “during the too, proceeding.” Gault, Kent, Gallegos, Haley,
From these six cases— Winship n that: apparent is DeBacker, and —-it attendant requirements of the constitutional Some .1. to application equal have state trial upon the adjudi- proceeding that of the state part appro- to the rights these Among in nature. cative and to cross- confrontation counsel, to notice, priate self-incrimination. privilege against examination, and beyond a reason- proof the standard of Included, also, is able doubt. yet rights that all however, has not said Court,
2. The crime to an adult accused constitutionally assured to the made be enforced or available are to also specif- Indeed, the proceeding. Court delinquency in his far: going ically has refrained that the hear- mean this indicate “We do not require- with all of the must to be conform ing held or even of the usual admin- ments of a criminal 534' hearing hold but we do hearing;
.istrative process and up the essentials of due must measure Gault, Kent, S., 562; at (cid:127)fair treatment.” 383 U. at 30. S.,U. high hopes and Court, although recognizing Mack, the leaders aspirations Judge Julian supporters of Jane Addams and the other School1 disappoint concept, has noted the also system’s experience and performance ments of the Kent, S., 383 U. resulting widespread disaffection. *6 Gault, S., been, at 387 at 17-19. There have 555-556; U. appreciation at one and the same both for time, an sympathetic, judge devoted, court who conscientious, judge and a disturbed concern about fully who is and less than imbued with an untrained complex understanding .approach problems to the of child hood praise and adolescence. has been for the There system purposes, and has been and its there alarm over its defects.
4. The Court has insisted that these successive deci spell system sions do-not doom deprive or even it of “informality, flexibility, speed.” its or Winship, 397 U. S., at 366. hand, On other a con cern precisely opposite expressed, to the effect was Id., in Winship. two dissenters at 375-376.
II , already With this background developed, substantial we turn to present the facts of'the cases: Joseph McKeiver, 16, then 'age May 1968
No.
was charged
larceny,
robbery,
receiving stolen
goods (felonies
Pennsylvania
under
law, Pa.
Ann.,
Stat.
18,
4704,
Tit.
4807,
(1963))
§§
and 4817
juve-
as acts of
1
article, Equal
See Mr. Justice
Rights
Whom?,
Fortas’
42
—For
401,
(1967).
N. Y.
L. Rev.
U.
delinquency.
nile
adjudication
At the time of the
hear
ing
represented by
he was
request
counsel.2 His
for a
jury trial was denied and his case
heard by Judge'
was
Theodore S. Gutowicz of the''Court of
Pleas,
Common
Family Division,
Branch,'
Philadelphia
Juvenile.
Pennsylvania.
County,
McKeiver
adjudged
was
de
linquent upon findings that he had violated a law of.
the Commonwealth.
Tit.
Ann.,
11,
(4)
Pa. Stat.
§ 243
(a) (1965).. He
placed
probation.
On appeal,
the Superior Court affirmed
opinion.
without
In re
McKeiver,
Super.
215 Pa.
760,
Edward Terry, then age 15, January 1969 was charged with battery assault police on a officer and conspiracy (misdemeanors Pennsylvania under law, Pa. Ann., Stat. Tit. §§ 4708 and (1963)) as acts of juvenile delinquency. His request counsel’s for trial was denied and his case was by Judge heard Joseph C. Bruno of the same Juvenile Branch of the Court of Common Pleas Philadelphia County. Terry was ad judged a delinquent on the charges. This followed an adjudication and commitment !m preceding week an assault on a teacher. He was committed, as he had been on the earlier charge, to the Youth Development Center at Cornwells Heights. On appeal, Superior Court affirmed opinion. without Terry, In re 215 Pa. *7 Super. 762, 255 A. 2d (1969). 922
The Supreme Court Pennsylvania granted leave to appeal in both cases and consolidated them. The single ’ question considered, phrased by the court, was “whether there is a constitutional right trial in n juvenile court.” The answer, justice one dissenting, was 2At hearing McKéiver’s his counsel advised the court he that had McKeiyer never seen before just and “was in the middle of inter viewing” him. court The him allowed five minutes for the inter view. office, Counsel’s Community Legal Services, however, had appointed been represent McKeiver five months earlier. App. 2.
536 2d 350 A. 339, 265 Pa. Terry, In re 438 negative. 925 U. S. 399 probable jurisdiction. We noted
(1970). (1970). are offenses Terry and McKeiver
The details Pennsylvania for opinion Roberts’ in Justice forth set 351 2d, at 265.A. 2, 1 and 341-342, nn. Pa., court, 438 at length any at be.repeated need 1 and and nn. his was offense say that McKeiver’s It suffices here. three pursued youths who 20 or with participating them; 25 cents took teenagers and young had a and arrested had been McKeiver never before testimony of two employment; gainful record of as somewhat court by the described of the victims was offense “weak”; Terry’s and as inconsistent with and" with his fists officer police hitting consisted Terry and boys’ fight up a officer broke a stick when watching. were others 45 other approximately Burrus and
No. 128. Barbara years,3 were from to 15 age in children, ranging black Hyde in issued court summonses subjects January in Carolina, North County, of demonstrations of á series out charges The arose children adults by black county late 1968 consolidation school assignments and protesting school high- state Carolina filed Petitions North plan. were Lam- to James relating one Except for way patrolmen. juve- respective charged the petitions bert Howard, the wilfully charge against impeding niles traffic. noise and wilfully made riotous he Howard was that Quarter ; disorderly Peay A. School Swan the O. during regular school its interrupted and disturbed furniture. The acts so school sessions; defaced only procedures provided In North Carolina persons 7A-277 and age under' of 16. C. Gen. Stat. N. §§ (1) (1969). 7A-278 *8 law. Carolina North under misdemeanors
charged 1969), Supp. and 20-174.1 (1965 Stat. §§ C. Gen. N. (1969). 14-273 (a), 14-132 for - groups into consolidated were cases several The sitting as Ward, S. Hallett Judge District before hearing the all for -.appeared lawyer same The court. a except all made objection, counsel’s Over juveniles. A excluded. was public general the eases, the of two denied. was case each a for request Howard than other juveniles the toas evidence The No patrolmen. highway of testimony of solely consisted The witness. any offered or stand the took the. occasions various on that effect the to testimony was High-' along walking observed were adults and juveniles basket- playing and clapping, shouting, singing, way 64 traffic. with interference was result, there . As ball. of portion paved the to asked .leave were marchers The com- were they that warned were they highway the or left refused either They statutory offense. mitting juveniles The returned. immediately roadway and the custody. Juve- into taken were adults participating under those respect with filed then were petitions nile of age the morning the that was Howard toas evidence principal the office the inwas he5, of December school while persons 15 other Peay School A.O. the around; that furniture moving and was session inwas school result aas disarray; inwas the office any nor he neither noon; and before closed enter or authorized school at a student was others office. principal’s had found case In each punished may be adult an which “an act committed declaring entered custody order law;.” A suitable, guardian- more need of “in delinquent County custody him committing ship” Department of Public placement Welfare for in'a suitable institution “until such time the Board of Juvenile Correction or the Superintendent of said institution may’ *9 determine, not inconsistent with the laws this State.” The court, however, suspended these commitments and placed juvenile each on probation for either one or two years conditioned upon his violating none of the State’s laws, upon his reporting monthly County to the Depart- ment of Welfare, upon his being by home 11 p. m. each evening, and upon his attending a school approved by the Welfare Director. None of juveniles the been has confined on these charges.
On appeal, the cases were consolidated into two groups.
The North Carolina Court of Appeals affirmed.
In re
Burrus, 4 N. C. App. 523, 167 E.S.
2d 454 (1969); In re
Shelton, 5 N. C. App. 487,
Ill
It is instructive to review, as an illustration,
the sub-
stance of Justice Roberts’ opinion for the Pennsylvania
court. He observes,
539 the consequence aas that 353; at 2d, A. 265 344-345, sweeping .a with “confronted court Pennsylvania id., at 345, holding,” carefully tailored rationale “Gault safeguards procedural that 353; 2d, at A. al have courts juvenile to applicable made specifically domestication’ 'constitutional significant ready caused at 2d,A. id., 346, at proceedings,” court including rights, other safeguards those 354; Winship, established standard reasonable-doubt atmos in an operate will “insure impress thé orderly enough is which phere impartiality situation of the gravity permit enough informal time same and at tribunal (footnote-omitted), operate” system the benefits “proper 354; at ., 2d,A. at id by jury to á right is whether then, (cid:127)inquiry, *10 Duncan, in the meaning the within 'fundamental’ all of the- operates which court juvenile of a context 2d,A. id., 348, 265 at safeguards,” above constitutional whether “upon turned inquiry court’s that his 354; and at render which process juvenile in the elements are there protec the less essential by jury trial right the system-than juvenile in the rights accused’s of an tion Ibid. process.” criminal normal in the do factors that such concluded then Roberts Justice Although (1) system: Pennsylvania juvenile the inhere in bench juvenile of the in quality the “faith that realizing process,” for due satisfactory substitute entirely is not an juvenile judges the 2d, 355, id., A. at 265 348, at that role than their view of a different take “do courts Id., courts.”' criminal counterparts by their taken regrets one (2) While 354-355. 2d, at 265 A. 348, at has available system “the inadequacies, its diagnostic and fully more various much utilizes that, those superior to are “far services” rehabilitative Id., 348- at process.” regular aváilable (3) 2d, Although conceding A. at 349, - many respects process “has post-adjudication reality is far harsher goals, of its and its fallen far short declaration of theory,” its the end result than “is different from and less delinquency significantly onerous than a of criminal and “we finding guilt” yet not con- practices convinced that the current do system truly appropriate tain the seeds from which a brought (4) possible can be forth.” “of Finally; all process due rights applied which could be courts, the right by jury to trial is the one which would likely disruptive most unique nature juvenile process.” It is jury prob- trial that “would ably require substantial prac- alteration of the traditional tices.” The procedural applicable other held rights juvenile process juveniles “will give sufficient protection” and the addition of the “might well destroy the traditional character- of Id., proceedings.” 349-350, at A. 2d, at 355. id., court concluded, 350, at 265 A. 2d, at it was confident properly “that a structured and fairly administered system can serve our present societal needs without on individual infringing freedoms.”
IV The right impartial to an prose- all criminal “[i]n cutions” under federal law is guaranteed by the Sixth Amendment. Through the Fourteenth Amendment requirement has imposed now been upon the States “in all criminal cases they which —were to be *11 in a fed- tried eral come within the Sixth Amendment’s court —would guarantee.” This is because the Court has said it be- by lieves “that trial jury in criminal cases is fundamental to>the American scheme justice.” of Duncan v. Louisi- ana, 391 145, U. S. 149 (1968); Illinois, Bloom v. 391 194, U. S. 210-211 (1968).
541 the automatically provide does not course,„ This, other no if issue, present to the answer not has proceeding court the than reason within prosecution,” “criminal to be held yet been also Amendment, and Sixth of the reach meaning aspects criminal devoid as regarded yet been not has label. civil given been usually has it merely because 49-50; 17, S., at Gault, U. 387 554; Kent, S., at 383 U. 365-366. S., at U. Winship, 397 attempt sim any gained-by to be indeed,
Littlé, either proceeding call the plistically avoided has carefully Court The “criminal.” “civil” or decided was Gault Before approach. wooden this self- against guarantee Amendment’s the Fifth 1967, ' criminal state imposed upon been had incrimination too, So, (1964). 1 U. Hogan, S. v. 378 Malloy trial. confrontation rights Amendment’s the Sixth had Texas, S.U. Pointer v. cross-examination. (1965). Alabama, 380 U. S. Douglas v.
(1965), and peremptorily automatically .and did Yet the Court reading A proceeding. to the rights apply those separate And the same opposite. Gault reveals is evident standard-of-proof issue to the approach standard, first application separated carefully proceeding, to the and then trial, and 365. at 361 S., 397 U. Winship. displayed Due Process proposition “the accepting Thus, at our Gault, S., 387 U. play,” role to has a Clause in Gault jury, it to trial respect here with task “is to ascertain rights, claimed to other respect Id., at requirement.” process due impact of precise 13-14.
V
is that
argument
Pennsylvania
juveniles’ basic
“substantially
similar
proceedings
they were tried
proceed-
say
delinquency
They
that a
trial.”
a criminal
*12
ing in their
State
initiated
a petition
a
charging
penal code violation in
eonclusory
language of an
indictment;
that a juvenile
prior
detained
to trial is held
in a building substantially similar to an adult prison;
that
in Philadelphia juveniles over 16
are,
fact, held
in the cells of a prison;
that counsel
the prosecution
engage
plea
bargaining;
that motions
suppress
are
routinely heard and decided; that
the usual rules of evi-
dence
applied;
are.
that
the customary common-law
are
defenses
available;
that
the press is generally admit-
ted in the Philadelphia juvenile courtrooms;
that mem-
that,
bers
the public enter the room;
arrest
prior
may
record
reported
by the press (from police sources,
however, rather
than from
juvenile
court records);
that, once adjudged delinquent,
juvenile
may be con-
fined until his majority in what
prison
amounts
(see In
Bethea,
re
Super.
Pa.
75, 76,
the requirement of jury trial would not operate to deny the supposed benefits of court system; that the system’s primary benefits are its discretionary intake procedure permitting disposition short of adjudication, (cid:127)and its flexible sentencing permitting emphasis on re- habilitation; that. realization of these benefits does not depend upon dispensing with the jury; that adjudication of factual issues on the one hand disposition case on the other very are different matters very different purposes; that the phrpose of the former is indistinguishable from the criminal trial; that the provides an independent protective factor; courts experience has trials shown that why protection reason exists manageable; that no should be traditionally proceedings in criminal accorded subject involuntary denied incarceration young people courts deserve lengthy periods;, and healthy public scrutiny.
VI All the due litigants applicable here that- the agree process developed by proceedings, standard *13 Gault Winship, and is fundamental fairness. As that in an applied cases, those two we have standard emphasis on procedures. The factfinding requirements of notice, counsel, confrontation, cross-examination, and proof naturally standard of flowed emphasis. from this say But one cannot system that our legal jury is necessary component of accurate There is factfinding. con-, much to it, be said for be sure, but have we been pursue tent to ways other for facts. determining Juries are not and required, have not been, example, equity cases, workmen’s compensation, probate, or .in in deportation they cases. have Neither been generally in military used trials. In Duncan the stated, Court “We would not assert, however, every trial-—or particular any trial —held before a alone judge is unfair or may that a defendant fairly be as never treated aby judge as he would jury.” S., 391 U. In DeStefano, at 158. for this and others, reason Duncan, Court refrained from retrospective application of an surely action it would have not taken had it felt that issue; the integrity of the seriously-at result was inAnd Florida, v. Williams 399 U. S. 78 (1970), the Court saw particular no magic a 12-man for á criminal case, (cid:127)thus revealing that even concepts' themselves are not inflexible.
We must recognize, as the Court has recognized before, the fond and hopes idealistic of court ago generations of three early reformers and
.proponents commentary devastating The realized. not been have whole, as a contained system’s failures upon the Ad- Enforcement and on Law President’s Commission Report: Justice, Task Force Juvenile of ministration (1967), 7-9 reveals Youth Crime Delinquency been accom- in what has disappointment depth of falls far judge court Too often plished. stalwart, protective, communicating short of that unwill- system envisaged.4 community’s figure people and facilities and to be con- ingness provide insufficiency devoted, scarcity of time cerned, the inadequacy dispositional professional help, alter- general knowledge and our lack all contribute natives, the experiment.5 to dissatisfaction with had not received “A recent study undergraduate degrees; judges fifth . . had received no col . revealed half all; lege a fifth education at were not members of the bar.” Task Report Force then, emerges, theory “What In court was .this: helpful to be punitive. and rehabilitative rather than In fact the disappears, only distinction often because of the absence of fa personnel cilities and but also knowledge because of the limits of *14 technique. theory In the court’s action was to affix no stigmatizing delinquent generally by label. In fact a is employers, schools, viewed by society generally the armed theory criminal. In services— —as.a guilty the court was to treat children of criminal acts in noncriminal ways. In fact it labels runaways junior truants and criminals. theory operations “In the court’s justifiably could informal, be its findings and decisions observing made without ordinary procedural safeguards, it only because would act in the best interest of the child. frequently In fact it nothing does deprive more nor less than a child liberty process-of without due knowing not what else to do law— needing, admittedly whether not, to act in community’s or. imperatively than; interest even more theory the child’s. In. it was protective to powers exercise its bring to an errant child back into the fold. In fact there increasing is reason to believe that its inter- juvenile’s vention reinforces the impulses. unlawful theory In it id., ,7, at said, however, also Report, Force Task their achieve to failed have courts juvenile that say “To courts true is what than no more say is to goals when States, striking is most But failure in United highest.” hopes are failures, these all disappointments, these all
Despite by that we conclude shortcomings, these and all not a is stage adjudicative court’s in the num- for so conclude We requirement. constitutional of reasons: ber heretofore cases refrained, has The Court
1. holding flat with a easy way taking the decided, from accused the adult assured constitutionally rights all proceeding. state upon imposed are .to described Winship aptly is Gault and done was What 74, 62, Johnson, Super. 211 Pa. v. Commonwealth (1967): 2dA. properly has Court Supreme us to is
“It clear injecting balance judicious strike a to attempted system. orderliness into procedural out [pointed the trend reverse seeking It is receives whereby The child at Kent, U.S., 556] worlds ....’” of both the worst trial, least, at possibility, There is 2. will precept, of constitutional matter as a required if adversary fully into a proceeding remake what has end put an effective .been will process protective informal intimate, of an prospect idealistic proceeding. concededly pre- Report, although The Task Force any recommendation making
Gault, for its notable science current case best of social on each to concentrate turn, in its interest a vested it has often become learning. In fact of for- programs or avail itself cooperate with innovative loathe Report 9. Task Force ward-looking methods.” *15 the trial be imposed upon juvenile the- system. This is so despite its vivid description of the system’s deficiencies and disappointments. Had the Commission deemed this vital to the integrity, of the juvenile process, or handling of juveniles, surely a recommendation or suggestion to this effect would have appeared. The intimations, instead, are quite the other way. Task Force Report 38. Further, it expressly recommends against abandonment sys- of the tem and' against the return of juvenile to the criminal courts.6 study “Nevertheless,, juvenile of the does, courts not necessarily lead to the conclusion that the time jettison has come to experi ment and remand disposition of children charged with crime to
the criminal courts of country. As trying as are the problems juvenile of the courts, problems of the courts, criminal particu larly those of the lower courts, which would fall heir to much of juvenile court jurisdiction, are even graver; and the ideal of separate treatment of children is still worth pursuing. What is re-. quired is rather a revised philosophy court based on the recognition that past our reach exceeded our grasp. The spirit that animated court movement was fed in part by a humanitarian compassion for offenders who were children. That willingness to understand and treat people who public threaten safety and security should be nurtured, not turned aside as hopeless sentimentality, both because it is civilized and because social pro tection itself demands constant search for alternatives to- the crude expedient limited of condemnation and punishment. But neither should it be allowed to outrun reality. The court is a court law, charged like agencies other justice with protecting the community against threatening conduct. Rehabilitating offenders through individualized handling is way one of providing protection, and appropriately the primary way in dealing with children. But the guiding consideration for a court of law that deals with threaten ing conduct is protection nonetheless of the community. juve nile court, like courts, -other is therefore obliged employ all the at hand, means not excluding incapacitation, for achieving that pro tection. What- should distinguish from the criminal greater courts is emphasis on rehabilitation, not exclusive preoccupa tion with it.” Task Force Report *16 by dictum recognized has specifically The Court 4. every criminal even of necessary part not a is jury that a Louisiana, v. Duncan equitable. is fair process 158. n. 149-150, atS.,U. trial of the on imposition jury The 5. all, the if at gréatly, strengthen not would system
court an contrarily, provide would, function, and factfinding ability func- to assumed juveniie court’s of the attrition remedy the de- It would manner. unique in tion a hoped-for been the as has Meager of the system. fects would be the alternative field, advance and would gained, has been lose what would regressive, place squarely to .the again tend once process. the criminal routine of are promise. We concept high held juvenile,
6. grave disappointments say that, despite to reluctant promise, and we not hold dimensions, it still does ap- Pennsylvania say, as do reluctant to particularly its re- accomplish system cannot pellants here, that availability depends on the much- habilitative So goals. of the interest and commitment resources, on the as learn, understanding and on public, willingness many field, In as so this effect and cure. to cause and We are re- doing. learns perhaps one best others, experiment further and to disallow the States luctant- ways the elusive answers in new and different to seek feel that we would young, and we problems to the by imposing the experimentation be that. impeding in its If, must forward. States, indeed, go trial. The in all is desirable wisdom, any feels the State impedi- no kinds, appears or in certain there cases, to. system that feature. embracing to its installing ment however,' is the and not its That, privilege State’s obligation; there been Task Force Of course have abuses. The has noted them. We refrain from at
Report saying this point those abuses are of constitutional dimension. They relate to the lack of resources and of dedication inherent, rather than to unfairness. is,
8. There of course, nothing prevent in a judge, particular ease where he the need, feels or when the need demonstrated, using advisory an jury.
9. “The fact practice is followed aby large number of states is not conclusive a decision as to practice whether that accords with due process, but it is plainly worth considering determining whether practice ‘offends some principle justice so rooted in the traditions and people conscience our as to be ranked Snyder Massachusetts, fundamental.’ v. 291 U. S. *17 97, (1934).” 105 Leland v. Oregon, 343 790, U. S. 798 (1952). It therefore is of more than passing interest that at least 29 States and the District of by Columbia deny statute the juvenile a right jury to a trial in cases such as these.7 The same result achieved other 7 Code, Ala. 13, Tit. (1958); 369 Alaska (Supp. § Stat. 47.10.070 § 1970); Ariz. Rev. Stat. Ann. (1956), Laws, see Ariz. § 8-229 c. 223 (May 19, 1970); Ark. Stat. Ann. (1964); Ann., Del. Code § 45-206 10, Tit. (Supp. 1175 1970); (2) Fla. § (1965); Stat. 39.09 § Ga. Code Ann. 24-2420 (Supp. 1970); § Hawaii Rev. 571-41 Stat. § (1968); Idaho Code 1969); (Supp. § 16-1813 Ind. Ann. Stat. (Supp. 1970); Iowa (1971); Ky. § 9-3215 Code 232.27 Rev. § Stat. (1962); La. § 208.060 Rev. Stat. (Supp. 1962); 13:1579 § Minn. Stat. 1 (1969); subd. § 260.155 Miss. Code Ann. (1942); § 7185-08 Mo. (6) Rev. Stat. (1969) 211.171 (equity practice § controls); Neb. Rev. (2) Stat. (1968); § 43-206.03 Nev. (3) Rev. Stat. § 62.190 (1968); J.N. Stat. Ann. (1952); 2A:4-35 Family N. Y. § Court Act 164 and 165 and Civ. Prac. §§ Law and 4101; Rules C.N. Gen. § (1969); Stat. 7A-285 N. D. Cent. § Code (1960); Ohio § 27-16-18 Rev. Code Ann. (Supp. 1970); 2151.35 Ore. (1) § Rev. Stat. 419.498 § (1968); Pa. Ann., Stat. 11, Tit. (1965); S. Code § 247 C. Ann. ; (Supp. 1970) Utah § 15-1095.19. Code Ann. (Supp. § 55-10-94 1969); Ann., Stat. (a) 33, Tit. (Supp. 1970); § 651 Wash. Vt. Rev. Code Ann. 13.04.030; (a) D. C. Code 1971). § 16-2316 (Supp. §
549 pro- statutes 10 States In decision.8 judicial by States circumstances.9 certain under trial for vide majority the great Duncan since Gault 10. Since. Carolina, North Pennsylvania addition States, in con faced, have concluded issue have do cases two in those result led siderations re In court. -jury trial compel Bible (1970); E. 2d 380 N. 305, 255 Fucini, 2d Ill. 44 v. Dry den (1970); 319 E. 2d N. 254 v. State, - Ind. -, re In 1968); (Ky. 457 2dW. Commonwealth, S. 435 v. Hopkins (1969); 2d 419 A. 255 517, Johnson, 254 Md. W., re In J. 1969); (Miss. 282 Court, 2d So. 227 Youth D., 27 In re (1969); 2d 334 A. 254 129, Super. N. J. 106 Agler, 19 re In (1970); 2d 627 E.N. 261 90, Y. 2d N. Turner, State v. (1969); 808 2d N. E. 249 70, 2d St. Ohio Estes v. In re See (1969). 910 P. 2d 453 235, Ore. 253 McMullen (1968); 205 P. 2d 438 263, 2d Wash. Hopp, 73 To (1969). 431 N. W. 2d 169 581, Geiger, 184 Neb. v. P. 717, 437 Nord, 78 N. M. Peyton v. contrary are States, 280 v. United semble, Nieves and, (1968), 2d 716 1968). (SDNY 994 Supp. F. proposing short Stopping Court Juvenile the Uniform proceedings National by the 1968 July approved (a),
Act, § 24 Laws; State on Uniform of Commissioners Conference Boyd, 8 Cinque v. (1924); 467 320, 228 P. Daedler, Cal. 194 re In 520, A. 248 Fletcher, Md. 251 re (1923); In 70, A. 678 99 Conn. 316, Page, Mass. v. Commonwealth (1968); 2d 364 *18 2d 449 A. 276, 184 Perham, H. 104 N. re In (1959); 82, 85 2d N. E. (1962). 9 Ann. 1965); Kan. Stat. (Supp. 37-19-24 Ann. § Rev. Stat. Colo. (1948); Mont. 712A.17 Comp. Laws 1969); Mich. § (Supp. § 38-808 Ann., Tit. 1969); Okla. Stat. (Supp. 10-604.1 Ann. Rev. Codes § Tex. (1967); Comp. Laws 1970); § 26-8-31 S. D. (Supp. § 1110 Ann. Code 1970); Va. (b) (Supp. W. 2338-1, Stat., Art. § Civ. Wyo. 1971); (2) (Supp. 48.25 Ann. (1966); Stat. § Wis. 49-5-6 § 1971). (Supp. 14-115.24 Ann. Stat. §
the Standard Juvenile Court Act, Art. V, 19, pro § posed by the National Council and Delinquency Crime (see W. Sheridan, Standards Juvenile Family Courts 73, Dept, of H. E. W., Children’s Bureau Pub. No. 437-1966); and the Legislative Guide for Drafting Family and Juvenile Court (a) § Acts (Dept. of H. E. W.,' Children’s Bureau Pub. No. 472-1969).
12. If the jury trial were to injected into the system as a matter of right, it would bring with it into system the traditional delay, the formality, and clamor the adversary system and, possibly,. the public trial. It of.interest these very factors were stressed.by the District Committee of Senate when, through Senator Tydings, it recommended, and Congress then approved, as a provision in the District of Columbia Crime Bill, the abolition of the jury trial in the juvenile court. Rep. S. No. 91-620, pp. 13-14 (1969).
13. Finally, the arguments advanced by juveniles here are, of course, the identical arguments that underlie the demand for the jury trial for criminal proceedings. The arguments necessarily equate proceed- ing at least the adjudicative phase —or of it—with the trial. Whether they should be so equated is our issue. Concern about the inapplicability of exclu- sionary and other rules of evidence, about the juvenile n court judge’s possible awareness of juvenile’s prior record and of the contents of the social file; about re- peated appearances of witnesses, the same familiar persons probation officers and social workers —all to the effect this will create the likeli- hood of pre-judgment to ignore, it —chooses seems to us, every aspect of fairness, of concern, of sympathy, and of paternal attention that the juvenile court system contemplates. *19 process adjudicative the criminal
If formalities the system, the upon superimposed are to Perhaps existence. separate for need its little is there for but day, one will come disillusionment ultimate that it. to impetus to give disinclined arewe moment the Affirmed. concurring. White, Justice Mr. facts, that is to find jury of the function the
Although job at the better probably necessarily or even body is not conse- Nevertheless, judge. conscientious than the Constitu- that are severe so guilt of criminal quences power of official abuses to prevent a mandates tion community participation demanded, where by insuring, pro- to liberty and deprivations imposing serious justice. political biased, or corrupt, hedge against a vide case however, considered not, have We Sixth meaning within proceeding criminal subject all automatically to hence Amendment The in criminal cases. normally applicable restrictions I join the of law and process one of due here question is not are that the States concluding opinion plurality trials clause afford by that required improper acts. charged are juveniles where courts theory defend- proceeds law criminal actions. their responsible and are have will ants they chosen have establishes finding guilt A to others injurious reprehensible so in conduct engage others them and to deter punished they must be are considered blame- Guilty defendants crime. such, however and treated branded worthy; they much, pursues rehabilitative ends also the State system. justice system rests on juvenile justice most'part, For assumptions. Reprehensible acts more deterministic consequence of mature juveniles are not deemed the pressures (or choice but of environmental malevolent them) beyond lack of or of forces their control. other Hence, the legislative judgment stigmatize state juvenile delinquent by criminal; him branding his that, blameworthy punishment conduct not deemed so *20 is him required measures, to deter or others. Coercive employed, where are considered neither retribution nor punishment! Supervision or confinement is at aimed rehabilitation, not juvenile at the of his convincing error simply by pains and imposing penalties. Nor is the purpose juvenile to make the delinquent object an lesson for whatever his own others, may merits or demerits be. typical A disposition in juvenile the court whére delin- quency is established authorize may confinement until age 21, but it last no longer and within period that will only will last so long as his behavior demonstrates that he remains an unacceptable if risk returned to his family. Nor is the authorization for custody any until 21 meas-' ure of the seriousness particular of the act the that juvenile has performed.
Against this background in and light of the distinctive purpose of juries requiring in criminal I cases, am satis- fied with the holding. To the Court’s extent that the jury is a buffer to the corrupt or prosecutor overzealous in the criminal law system, the policies distinctive intake and procedures juvenile system court to a great extent obviate this important of jury.. the As function for the necessity guard against judicial bias, system eschewing blameworthiness punishment and for evil choice is itself an operative force against prejudice and short-tempered justice.- Nor juveniles where are in- volved is there the same for opportunity corruption to juvenile’s the detriment or the same temptation to use political courts for ends.
Ox.Ox co in crim- juries mandate that risks those only are Not adjudi- court magnitude lesser cases inal less are adjudication consequences but cations, guilt. of criminal verdicts flowing those than severe remains there practice and in theory, inso plainly This delinquency, guilt, criminal between gulf a substantial practice court failings whatever unhappi- current extent Moreover, be. may rests dissatisfac- performance ness with for delin- grounds overbroad vague with tion as to choice judicial faulty with adjudications, quency re- record or with adjudication, after disposition whether, probation- or institutional custody, habilitative mitigated . no way shortcomings are these ary, stage. adjudicative at providing between of substance differences remain me there For enough They quite are courts. Of the latter. required jury is to hold me de- are juries arguments strong are course, there free and States young, dealing when sirable *21 they if free, also They are choose. if they juries to use adjudi- court safeguards extend condemnation, punishment, embrace frankly to cations, attribhtes desirable and permissible deterrence and Clause Due Process the But system. justice to do so. them invites nor compels neither judgment concurring Brennan, Justice Mr. in No. dissenting
No. .322 conclusion opinion’s plurality I agree prose- “criminal were cases in these below proceedings Amendment. the Sixth meaning within cutions” whether cases is in these question therefore, me, For fair process of due “essentials among, jury trial is Gault, required 1, (1967), S. re In U. treatment,” based delinquency charge of a adjudication during upon acts that would constitute a crime if engaged in by an adult. See In re Winship, 397 U. S. 358, 359 and 1n. (1970). This not, does however, mean that the in- terests protected Sixth guarantee Amendment’s jury trial in all “criminal prosecutions” are of no im- portance in the context of these cases. The Sixth Amend- ment, where applicable, commands that these interests be protected by particular procedure, that is, trial by jury. The Due Process Clause commands, particular not a pro- cedure, but only result: in my Brother Blackmun’s words, “fundamental fairness . . . [in] factfinding.” In the context of these and similar juvenile delinquency pro-' means, ceedings, what this is that the States are not bound to provide jury trials on demand so long as some other aspect of the process adequately protects interests, that Sixth Amendment-jury trials are intended to serve.1
In my view, therefore, the due process question cannot
be decided upon the basis of general characteristics of
juvenile proceedings, but only in terms of the adequacy
of a particular
procedure
state
to “protect the [juvenile]
from oppression by the Government,” Singer v. United
States,
Examined in this light, I find no defect in the Pennsyl-
vania cases before .us. The availability of trial by jury
allows an accused to protect himself against .possible
oppression by what is in essence an appeal to the com-
munity conscience, as embodied in the jury that hears
1“A criminal process which was fair
equitable
but used no
juries
easy
to imagine.
It would make use of
guaran
alternative
tees and protections which would serve the purposes that
the jury
serves in the English and
systems.”
American
Duncan v. Louisiana,
391 U.
S.
150 n. 14 (1968). This
is,
conclusion
of course,
*22
inescapable in light of our decisions that petty criminal
may
offenses
be tried without a jury notwithstanding the defendant’s request.
g.,
E.
District
Columbia v. Clawans,
of
555 protection a similar however, extent, his case. To some appeal may an accused essence may be obtained when public attention by focusing community large, to the at judicial improper trial, exposing his upon the facts of exec- necessary, if public view, obtaining, behavior to public indignation. the medium through utive redress crim- context of adult Of course, Constitution, the. is trial public inal notion that trials, rejected has in serious cases. an adequate substitute I proceedings, juvenile delinquency But context say beyond competence cannot of a State it is pro- to juveniles delinquency conclude that who fear that may will obtain ade- ceedings judicial oppression mask upon quate protection by community focusing attention For, trial of their however much the cases. system may very have failed in its existence as practice, ostensibly process an beneficent and noncriminal for the care and guidance young persons demonstrates community’s existence of sympathy and concern for the young. community’s Juveniles able to bring attention upon may to bear their therefore draw trials upon public a reservoir of concern unavailable to the adult Pennsylvania criminal defendant. In the cases be- us, fore there appears statutory no upon ban admis- sion of the public Appellants trials.2. them- selves, without contradiction, assert press that “the is generally admitted” to juvenile delinquency proceedings in Philadelphia.3 Most important, the record in these generally applicable statute, Ann., 11, Pa. Tit. Stat. §245 (1965), merely provides proceedings “separate” shall be regular from Ann., court business. Pa. Stat. Tit. 269-402 § (1965), requiring general public exclusion of the hearings, applies only Allegheny County. Both of the instant cases Philadelphia County. were tried in judges Philadelphia “The Juvenile varying Court exercise degrees of control courtroom, press over admission to the but the generally Appellants admitted Brief for 9 n. 9. *23 any person whom any indication
cases is bare to the courtroom to have admitted appellants sought I judg- that the circumstances, agree In these excluded. in be affirmed. ment No. 322 must different present a cases, however, The North Carolina requires permits law either or situation. North Carolina In trials.4 public general exclusion general “ordered the us, judge the cases before the trial room and stated that public hearing excluded from the only or juveniles, parents officers of the their court, attorney present would be guardians, their and witnesses Burrus, App. 525, In 4 hearing,” 523, for the N. C. re 454, (1969), petitioners’ 167 E. 2d notwithstanding S. 456 repeated demand for public hearing. cases them- which selves, arise out of a series of demonstrations juveniles Hyde black adults who believed that County, system Carolina, unlawfully North dis- school against present para- criminated black schoolchildren, digm may of the circumstances which there be a sub- “temptation stantial political to use courts for ends.” ante, Opinion of Mr. at 552. And White, Justice finally, opinions neither supporting the judgment respondent nor pointed No. 128 has feature any North Carolina’s proceedings that could sub- stitute public or trial in protecting petitioners against judicial misuse of the v. process. Cf. Duncan Louisiana, 391 145, 188, (1968) U. S. J., (Harlan, resqrt. -(availability dissenting) political to “the proc- 4 N. C. (1966), Gen. Stat. 110-24 in force at the time of these § trials, appears require exclusion, permit its face to such but language statute, as does present identical N. C. Gen. Stat. (1969). 7A-285 Supreme present The North Carolina Court in the § cases has read legislative these statutes as.a determination “that a public hearing youthfui is the best interest offender.” [not] Burrus, In 517, 879, re 275 N. E. 2d (1969). C. 169 S. ess” is an alternative permitting States to dispense with jury trials). Accordingly, I would reverse the judgment in No: 128.
Me. Justice Harlan,
concurring
the judgments.
n
If I
myself
felt
constrained to follow
v. Lou-
Duncan
isiana,
I concur in the judgments in these cases, however, on. the ground that trials are not constitution- ally required of the States, either as' a matter of Sixth Amendment law or due process. my See concurring dissenting opinion in Duncan and my separate opinion in Williams v. Florida, 399 U. 78, S. 118-119 (1970).
Mr. Justice Douglas, with whom Mr. Justice Black Mr. Justice Marshall concur, dissenting.
These cases Pennsylvania and North Carolina present the issue of the right ato jury trial for offenders charged in juvenile court and facing possible incarcer-
ation until reach majority. their they I believe the guarantees of the Bill of Rights, made applicable to the States the Fourteenth Amendment, require a jury trial. In the Pennsylvania cases one appellants n
charged robbery (Pa. Ann., Stat. 18, Tit. § 4704 Tit; (1963)), (Pa. larceny Ann., Stat. 18, § 4807), and receiving stolen goods (Pa. Ann., 18, Stat. Tit. § 4817) of juvenile acts delinquency.- Pa. Stat. Ann., Tit. (1965). § 246 He was a delinquent found and placed probation. The other appellant was charged with battery assault and police on a (Pa. officer Ann., Stat. Tit. 18, 4708) § and conspiracy (Pa. Stat. Ann., Tit. 18, 4302) § as acts of delinquency. aOn finding of delinquency he was youth committed to a center. De spite the fact that the two appellants, aged 15 and 16, would potential face incarceration until their majority, Pa. Ann., Tit. 11, § Stat. 250, they were denied a jury trial.
In the North Carolina petitioners cases are students, from 11. years to 15 of age, who were charged under one of three criminal statutes: (1) “disorderly conduct” public building, N. C. Gen. § Stat. 14-132 (1969); (2) “wilful” interruption or disturbance públic of a or private school, N. C. Gen. § Stat. 14-273; or (3) obstructing the flow of traffic on a highway or street, N. C. Gen. Stat. *25 § 20-174.1 (1965 and Supp. 1969).
Conviction of each these crimes would subject a person, whether juvenile or adult, imprisonment to in a state institution. In the case of these students pos- sible term was six to 10 it years; would be computed for the period until an individual reached the age of 21. Each asked for a jury trial which was denied. The trial judge stated that the hearings juvenile were hearings, not criminal trials. But the issue in each case was whether
559 they had violated a state criminal law-. trial judge juvenile found each had committed “an .case may punished by for which an adult act law” held each case that the acts of the violated one of the criminal statutes cited above. The trial there- judge upon ordered each to to the state be-committed institution for the care of delinquents placed and then on probation each for terms from 12 24 to months. Gault, in In 1,
We held re U. S. that “neither the Fourteenth Amendment nor is for Rights Bill.of adults alone.” As we case, noted the Juvenile Court movement designed procedures to avoid to ascertain the child was “guilty” or “innocent” whether but to bring problems to bear on these ap- a “clinical” Id., proach. at 15, is, course,, It not our task to determine as policy a matter of whether a “clinical” or “punitive” approach problems to these should be taken by the States. But where a State uses its proceedings prosecute for a criminal act and to order “confinement” until the child reaches years age or where the child at the threshold faces proceedings prospect, then he is entitled to the same procedural protection as an adult. As Gault, Mb. Justice Black said in In re supra, at (concurring): person,
“Where a by infant or can be adult, seized the State, and convicted charged, violating state law, and then 'by ordered the State years, be confined for six I think the Constitution requires that' he be tried accordance with the guarantees provisions of all the of-the Bill of Rights n applicable made the States the Fourteenth Undoubtedly Amendment. this would be true of an defendant, adult and it would be plain denial equal protection of the laws—an invidious dis-
560 subject
crimination —to hold that others to heavier they punishments could-, children, because denied these constitutional safeguards.” same delinquency as courts have sometimes confused Just crime, with so have law enforcement officials treated juveniles but As noted delinquents not as as criminals. in the Report: President’s Crime Commission juveniles
“In were 1965, 100,000 over confined in' Presumably adult institutions. most them were there because separate no detention facilities Nonetheless, clearly existed. it is undesirable that juveniles be confined with adults.” President’s Commission Law and Administra- Enforcement tion of Society in a Justice, Challenge Crime Free (1967). 179 juveniles
Even when are not incarcerated adults may the situation be no Pennsylvania better. One cor rectional juveniles institution for building is a brick with barred locked steel windows, cyclone fence doors, topped with barbed wire, A guard towers. former ‘juvenile judge described it as “a maximum security prison for In adjudged delinquents.” Bethea, re 215 Pa. Super. 76, A. 75, 2d 368, 369. present
In
imprisonment
cases
or
up
confinement
years
to 10
possible
for one child and each faced at
least
possible five-year
incarceration. No adult could
be denied a
those circumstances. Dun-
Louisiana,
can v.
391 U.
145,
S.
162. The Fourteenth-
Amendment,
by
makes trial
jury provided
which
Sixth
applicable
Amendment
the States, speaks
of de-
“any
nial of
rights
person,” not denial of rights
“any
adult
and we
person”';
have held
indeed
where a
juvenile is
with an
charged
act that would constitute a
if
crime
committed
an adult, he is entitled to be tried
under a
proof beyond
standard of
a reasonable doubt.
In re Winship,
In
Brainard,
DeBacker v.
U.
33, 35,
S.
Me.
I
dissented from a refusal to grant a.
Justice
Black
juvenile, who was charged with forgery, a jury trial
merely because the case was tried before Duncan v.
*27
Louisiana,
“I can see
whatsoever in
no.basis
the language of
the Constitution for
persons
allowing
like appellant
the benefit of those rights
yet
denying them a
jury trial, a right which is surely one of the funda-
mental aspects of criminal
justice in the English-
speaking world.”
I added that by reason of the Sixth and Fourteenth Amendments is entitled to a jury trial
“as a matter of right where the delinquency charged is an offense that, if the person were an adult, would be a crime triable by jury. Such is this case, for behind the facade delinquency of.
crime of forgery.” Id., at 35. aspects Practical problems these are urged against allowing jury a trial in these cases.* They have been
* The Public Defender Service for the District of Columbia and Neighborhood Legal Program Services of Washington, C.,D. have filed a brief amicus in which 'the results survey of a trials in delinquency cases in the 10 requiring jury States plus trials the Dis trict of Columbia are set forth. The cities selected mostly were large metropolitan areas. Thirty courts processing 75,000 about' year cases were canvassed: discovered “[W]e that during past five and a years, half in' 22 out of 26 surveyed, courts requests cumulative for jury trials totaled or less. In the remaining five courts in sample, our sta- tistics were unavailable. During the same period, out of 29 Family Court of De Ciantis Judge answered In the Matter Island, in a case entitled Providence, Rhode McCloud, January 15, 1971. A decided rape 17-year-old Judge female and with the of a charged opinion, De a motion for a an granted Ciantis appendix I as an to this part of which have attached that, He there concludes “the real traumatic” dissent. process without due is “the experience of incarceration deprived of basic He adds: feeling being rights.” “The child who feels that he has been dealt with fairly merely expediently speedily or as possible prospect will be a better for rehabilitation. Many of the children who come before the court broken homes, ghettos; they come from often suffer from low self-esteem; and their be- , frequently symptom havior is of their own feelings of inadequacy. experiences Traumatic of denial of only basic rights past deprivation accentuate the *28 n contribute to the problem. Thus, general societal acceptance attitude of of the person as a protection entitled to the may same as an adult beginning of the process.” rehabilitative true jury courts the cumulative number actually trials held numbered less, 15 or with statistics unavailable for two sample. courts in our Tulsa, example, Oklahoma, For in present counsel is in .of 100% delinquency cases, only jury but one requested trial has been during past held years. five and one-half In the Juvenile Court Worth, Texas, of Fort present counsel is also in cases, 100% only jury requested two trials have been since 1967. The Juve- Detroit, Michigan, nile Court in reports that appointed counsel is in delinquency cases, of its but thus far in 1.970, it has had 70-80% ¿ only requests jury. four for requests Between 1965 and 1969 for -juries reported ‘very were few.’ only “In four sample courts our clearly has there been during past total years five and one-half jury more than 15 requests trial more than 15 such trials held.” and/or showing The four courts requests more than for trials were Denver, Houston, Milwaukee, Washington, D. C. Judge De Ciantis goes on say by jury rial “[t] provide will the child with safeguard against being by prejudged” may a judge prejudiced well be by who reports already by police submitted to him or case- workers the case. Indeed child, the same as the adult, is the category of those described Magna Carta:
“No may freeman be . . . imprisoned except . . . by the lawful judgment his by or peers, law of the land.”
These cases should be by jury remanded charges filed against these youngsters. APPENDIX TO OPINION OF J., DOUGLAS,
DISSENTING De Ciantis, J.: The defendant, who will hereinafter be referred as a juvenile, on the day sixth of September,. 1969, was charged Rape upon a female child, seven- years teen old, in violation of Title Chapter 37, Sec- tion 1, of the General Laws of 1956.
TRAUMA The fact is procedures that the which now followed cases far are more traumatic than the potential n experience of a say trial. Who can boy that a who is arrested and handcuffed, placed in a lineup, transported in vehicles designed convey dangerous criminals, placed in the same kind of a as an cell adult, deprived of his freedom him lodging in an institution where he subject to be transferred to the prison state’s and in *29 the has “hole” not undergone a traumatic experience? experience
The of a trial or jury without a is meant impressive to be and-meaningful. The fact that a realizes that his-case will be by decided twelve court, its to retain the would allow citizens
objective than any trauma causing without more meaningfulness heard other cases has perhaps who judge a a trial before may in- be past same involving jury a To agree contacts. prior fluenced those is experience to'a traumatic expose would experience of incarcer- traumatic of the real sight to lose experience traumatic process. The real without due ation In deprived rights. of basic- being of feeling [In] is the Reis,1 inadequacies Court indicated the matter this of A operates. our court under which procedure police facts of a case who receives judge those facts upon of approves filing petition .based' may position hearing in the untenable placed be duty adjudicate is to approved. which he has His charge introduced at the and not be hearing on the evidence any pre-adjudicatory investigation. involved contrary principles It to the fundamental of due compelled, state, to as it is this process for the court judgment a one-man then sit grand jury, act as pro- out arising own facts determination its responsibility be- which. conducted. This ceedings he longs jury. with a
BACKLOG jury argument An has been made that allow trials great and, ultimately, would cause a of cases backlog impair functioning would court. fact however is that there is no meaningful evidence that will granting right impair trials the function permit jury of the court: states in all juvenile Some trials few cases; juries have been demanded, and there courts, is no from these suggestion trials have .impeded system juvenile justice. (1970). Reis, 7 CrL 2151 *30 by permitted been have jury trials
In where Colorado, Juvenile Rubin of Theodore statute, Judge the.Denver important are an jury that Court has indicated trials functioning the impaired not they that have safeguard and the during example, For Courts. of the Denver Juvenile Denver of the 1970, the two divisions first seven months of jury trials, two dozen fewer than Court have had Juvenile In cases. dependency-neglect delinquency in both jury to a also entitled juveniles are Michigan, where indi- Detroit Court Lincoln of the Juvenile trial, Judge in trials jury five his court has had less than cates that year the 1969 to 1970. Williams vs decision of Supreme
The recent Court Florida, (June 22, 1970), which held that U. S. [399 78] by in criminal cases jury the constitutional to trial right jury, imple- could be require does not a twelve-member juryA jury mented to the trials. facilitate transition cumbersome, of less members would be less than twelve than the twelve- “formal,” expensive regular less and less yet the jury, provide member would accused objective fact-finders. very-
In the argument expediency, suggesting fact “supermarket” “assembly-line” justice or' one of the is in arguments most forceful favor of trials. granting jury By juvenile granting right trial, to a we be would, fact, protecting judge the accused from the pressure under to move the cases, judge who is many pro- cases and not It enough with too time. will may vide who safeguard against judge prejudiced be minority may or who group prejudiced, against him against-the brought before because of somé past by occurrence which was heard the same judge. been criticisms
There have court judges, hearing caseload, carefully because of their weigh do adjudicatory phase proceedings. the evidence determine must judge phase It this during beyond established the evidence has been whether fact that, committed the acts the accused a reasonable doubt the merit of these petition. Regardless in the alleged juveniles, the belief of the they impaired have criticisms, opportunity to the public and of the the bar Granting court. justice the facts be determined to demand right parties of all concerned the faith strengthen will juvenile system. *31 side note, to at this a important time,
It
definite
e.,
i.
aid to rehabilitation.
jury trials,
an
granting
benefit of
fairly
that he has been dealt
The child who feels
possible
merely expediently
speedily
or as
as
will
and
Many of the
prospect
be a better
for rehabilitation.
from
the court come
broken
children who come before
they
from the
often suffer
low self-
homes,
ghettos;
frequently
symptom
their behavior is
a
of
esteem; and
inadequacy.
experiences
of
Traumatic
feelings
their own
only
past depriva-
rights
of denial of basic
accentuate
problem. Thus,,
general
tion and contribute to the
acceptance
person
of
of the
as
societal attitude
protection
may
entitled to
same
as an adult
be the
process.
of the
beginning
true
rehabilitative
TRIAL
PUBLIC
judgment
Public trial
of this Court does not af-
court
philosophy-
fect the
In re Oliver2 Mr. Justice Black reviews the his-
[In]
tory
public
of the
trial.
Its
are
origins
obscure, but it
along
seems to have evolved
with the
guarantee
trial
common law
English
adopted
and was then
pro-'
as a
2
vision trial public of a benefits Among constitutions. state following: are wit- key of attention to the come trials
1. “Public witnesses These parties. to unknown nesses im- give voluntarily come forward may then testimony.” portant government their about learn spectators
2. “The remédies.” judicial their confidence acquire is sub- trial criminal every knowledge “The of in the [forum] review contemporaneous ject to possible restraint effective is ah opinion public 270.) (P. power.” judicial abuse question on the say nothing has Justice Black crime, but it deterrent as a trial acts public whether quality improve publicity to he believes is clear that practically. theoretically both justice, issue, he writes: forAs .the may be the classification “Whatever without they often conducted proceedings, never been it has But public. all the admitting relatives, and parents, wholly exclude practice counsel.” benefit of juveniles the to refuse friends, or *32 266.) (P. conducted proceedings presently fact,
In the prosecution the Witnesses are far from secret. students, reporters, court workers, social defense, for the pres- counselors, and sheriffs trainees, probation police Forces, Armed Police, in the courtroom. ent information and Investigation obtain Bureau Federal no more seems files. There police to the have access destroy con- would jury trial to believe reason testify. to would fidentiality witnesses summoned than of the PRESIDENT’S report notes the The also Court AND ENFORCEMENT LAW COMMISSION 0[N] THE CHAL- JUSTICE, OF ADMINISTRATION (1967), A FREE SOCIETY IN LENGE OF CRIME it is stated: wherein by the required record is adjudication juvenile’s
“A private confi- to be jurisdictions of most law confidentiality of those re- dential; practice “[statutory Furthermore, ports is often violated.” invariably only apply to almost restrictions the evidence is that records, and even as to those many routinely furnish information to the courts request government FBI and the and on to military, employers.” to private agencies even JUDGE’S EXPERTISE The is also argument Court aware develop court was who were judges created experts problems juvenile’s out the real behind a sifting therefore, the child’s fate breaking law; place jury the hands of a would This defeat purpose. will, however, continue to leave the final decision of dis- position solely jury with the judge. role only will be facts, ascertain whether the which give the court jurisdiction, beyond have been established reasonable doubt. The will not be.concernéd with social and psychological factors, factors. These along with prior record, family and educational background, will be considered judge dispositional during phase.
Taking into consideration the social background and other facts, the judge, during dispositional phase, will determine disposition what best interests of the society. child and It is at this stage that a ex- judge’s pertise is most important, and the granting *33 basic out the carrying judge the prevent will court. the of philosophy safeguard awith the jury provide will child
Trial no clearly will have jury The prejudged. against being of the any or report social learning of business under introduced properly unless matter extraneous other that demands process Due evidence. rules of any of the acquainted not be should trier facts cir- any knowledge or have of the case facts depart- in his own officials through cumstance's, whether believes If the accused . possession. in his ment or records submitted facts an account has read the judge adjudicatory to report prior any or other police by the de- he can prejudicial, may prove this and hearing on the knowledge such against and insure a mand the facts. of the trier part TRIAL JURY
WAIVER OF his can waive a child whether questions also Counsel counsel or a parent fact, or, in whether a'jury to right may waive. Court hearing, up comes the waiver
When juvenile’s or refuse grant either discretion, at its could, legal or appoint guardian trial, of a waiver and/or the child. to advise counsel percentage greatest shown has
My experience felony cases court in before the appear who of juveniles neglect parental lives due appalling lived have conditions, living of normal brutality, poverty. lack normally maturity which in then! a produced This has well generally They are in life. later much acquired However, of law. in a court rights of their aware clearly guidance, needs child where a those cases attorney explain could or guardian court-appointed juvenile’s rights aof waiver. implications him the strin- every bit as protected would thus interests gently they today before he plead is allowed to guilty or not guilty complaint. A guilty plea is, all, after waiver of the right to trial altogether. *34 placed Counsel is with the responsibility of explaining juvenile to the the significance of guilty and nolo con- tendere pleas, instructing juvenile of on the preroga- to tive take the witness stand, expected and is to advise his client in same- manner as he would an adult about to stand trial. And now counsel to the suggests Court that counsel is not capable of explaining waiving right jury to a trial. The Court to fails see the distinc- tion between this waiver and the waiver, absolute to wit, guilty plea. a Counsel should act in the best interest of client, his if may even this be in conflict with the par- ents. On a number of occasions this Court has appointed counsel for a parents whose not .could afford to private retain counsel, and where parents’ interests were in conflict with of those the child. procedure This will continued and b.e the Court will continue to rely on the good judgment of the bar.
The Court easily could require a that waiver of jury trial be person made in by the juvenile in writing, open court, with the consent and approval of the Court attorney representing both and the state. The judge could ascertain as to whether the ju- venile can intelligently waive his right and, if necessary, appoint counsel to youth advise the as to the implica- tions connected the waiver. This could be accom- plished any without difficulty through means presently available to the Court.
JURY OF PEERS One of the most interesting questions raised is that concerning the right of to by a trial peers. his Counsel suggested has that a juvenile’s of a peers “teenage a is, juveniles, of other composed be would de- 1966, Edition, Dictionary, Second jury.” Webster’s rank, quality, the same one of equal, an a peer fines citi- than more nothing means “peers” word The value. phrase The 797. N. Y. S. Grilli, 179 In re zens, by law, a at common means peers” of his “judgment Simons, Kan. State vs men, twelve jury of borrowed expressly term is a peers” of his “Judgment by jury, a trial it means Charta, Magna Declaration 161. The Cr. Wagner, 58 Okl. parte Ex Are men. all equality speaks also- Independence citizen, second-class is a that a say to nowwe con- been never has Constitution The an adult? equal wit, peers, by their be must tried say women strued juries. all-Negro Negroes or juries, by all-female n is that makeup only restriction meet who those exclusion systematic no can there *35 voting particular, in requirements, federal local qualifications. 18-year- in states some preséntly that *36 Law;
Common and the keystone is preservation liberty. individual All these were carefully ideas inserted in our Constitution.
The juvenile is constitutionally entitled to jury trial. notes The Court may they vote, they Presumably, if can vote. can olds first given has legislature own Our juries. on serve also permit to Constitution to the to an amendment passage we that possible quite is it Thus, vote. 18-year-olds so- of their judgment in sitting jurors teenage have will “peers.” called PROCEEDING CRIMINAL is delinquency of adjudication that the argument The This spurious. is process of criminal equivalent the not distinctions making futility of the discussed has Court legis- the Because prior in decisions. labels basis the felony shall who commits a child dictates lature the change nature does delinquent called robbery they robbery is murder; is Murder crime. — offenses, both criminal not civil, regardless and inde- pendent of the age of the doer. noteworthy It is our statute there is not an express statutory provision indicating proceed- ings by jury are civil. Trial Rhode guaran- is Island teed all persons, whether in criminal or in civil cases cases. That right prior existed adoption to the of the Constitution; .certainly one is whether involved in a civil or criminal proceeding the Family Court which “liberty” his is to be “imprisoned” “taken” “out- lawed” and “banished” he is by entitled to a jury. trial 30). (Henry Cherry Webb, vs & 30 R. I. 13, at This Court believes that although was initially created as a social experiment, it has not ceased part to be judicial system. In view of the potential of liberty loss at stake this proceeding, Court compelled to accord process due to- all the liti- gants who come before it; and, therefore, all of the pro- visions of the Bill of Rights, including jury, must prevail. The Court concludes that the framers of our Consti- tution never to place intended power in any one man or official, and take away “protection of the law from the rights of an individual.” It meant “to secure of liberty blessings and posterity.” themselves The Constitution was written with the philosophy upon based a composite of all most liberal ideas which came down through the centuries; Magna Charta, Petition of Rights, the Bill of Rights and the Rules of