Lead Opinion
announced the judgments of . the Court and an opinion in which The Chief Justice, Mr. Justice Stewart, and Mr. Justice White join. .
These cases present the narrow but precise issue whether the Due Process Clause of the Fourteenth .Amendment assures the right to trial by jury in the adjudicative ..phase of a state juvenile court delinquency proceeding.
The issue arises understandably, for. the Court in a series of cases already has emphasized due.process factors protective of the juvenile:
1. Haley v. Ohio,
2. Gallegos v. Colorado,
3. Kent v. United States,
4. In re Gault,
“Accordingly, while these cases relate only to restricted aspects of the subject, they unmistakably*532 indicate that, whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”387 U. S., at 13 .
The Court focused on “the proceedings by which' a determination is made as to whether a juvenile is a ‘delinquent’ as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution” and, as to this, said that “there appears to be little current dissent from the proposition that the Due Process Clause has a role to play.” Ibid. Kent was adhered to: “We reiterate this view, here in connection with a juvenile court adjudication of ‘delinquency,’ as a requirement which is part of the Due Process Clause of the Fourteenth Amendment of our Constitution.” Id., at 30-31. Due process, in that proceeding, was held to embrace adequate written notice; advice as to the right to counsel, retained or appointed; confrontation; and cross-examination. The privilege against self-incrimination was also held available to the juvenile. The Court refrained from deciding whether a State must provide appellate review in juvenile cases or a transcript or recording of the hearings.
5. DeBacker v. Brainard,
6. In re Winship,
From these six cases — Haley, Gallegos, Kent, Gault, DeBacker, and Winship■ — -it is apparent that:
.1. Some of the constitutional requirements attendant upon the state criminal trial have equal application to that part of the state juvenile proceeding that is adjudicative in nature. Among these are the rights to appropriate notice, to counsel, to confrontation and to cross-examination, and the privilege against self-incrimination. Included, also, is the standard of proof beyond a reasonable doubt.
2. The Court, however, has not yet said that all rights constitutionally assured to an adult accused of crime also are to be enforced or made available to the juvenile in his delinquency proceeding. Indeed, the Court specifically has refrained from going that far:
“We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual admin*534 .istrative hearing; but we do hold that the hearing must measure up to the essentials of due process and •fair treatment.” Kent,383 U. S., at 562 ; Gault,387 U. S., at 30 .
3. The Court, although recognizing the high hopes and aspirations of Judge Julian Mack, the leaders of the Jane Addams School
4. The Court has insisted that these successive decisions do-not spell the doom of the juvenile court system or even deprive it of its “informality, flexibility, or speed.” Winship,
II
With , this substantial background already developed, we turn to the facts of'the present cases:
No. 322. Joseph McKeiver, then 'age 16, in May 1968 was charged with robbery, larceny, and receiving stolen goods (felonies under Pennsylvania law, Pa. Stat. Ann., Tit. 18, §§ 4704, 4807, and 4817 (1963)) as acts of juve
Edward Terry, then age 15, in January 1969 was charged with assault and battery on a police officer and conspiracy (misdemeanors under Pennsylvania law, Pa. Stat. Ann., Tit. 18, §§ 4708 and 4302 (1963)) as acts of juvenile delinquency. His counsel’s request for a jury trial was denied and his case was heard by Judge Joseph C. Bruno of the same Juvenile Branch of the Court of Common Pleas of Philadelphia County. Terry was adjudged a delinquent on the charges. This followed an adjudication and commitment !m the preceding week for 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, the Superior Court affirmed without opinion. In re Terry,
The Supreme Court of Pennsylvania granted leave to appeal in both cases and consolidated them. The single question considered, as phrased by ’ the court, was “whether there is a constitutional right to a jury trial in juvenile court.” The answer, one justice dissenting, was ■
The details of the McKeiver and Terry offenses are set forth in Justice Roberts’ opinion for the Pennsylvania court,
No. 128. Barbara Burrus and approximately 45 other black children, ranging in age from 11 to 15 years,
The charges arose out of á series of demonstrations in the county in late 1968 by black adults and children protesting school assignments and a school consolidation plan. Petitions were filed by North Carolina state highway patrolmen. Except for one relating to James Lambert Howard, the petitions charged the respective juveniles with wilfully impeding traffic. The charge against Howard was that he wilfully made riotous noise and was disorderly in the O. A. Peay School in Swan Quarter ; interrupted and disturbed the school during its regular sessions; and defaced school furniture. The acts so
The several cases were - consolidated into groups for hearing before District Judge Hallett S. Ward, sitting as a juvenile court. The same lawyer -.appeared for all the juveniles. Over counsel’s objection, made in all except two of the eases, the general public was excluded. A request for a jury trial in each case was denied.
The evidence as to the juveniles other than Howard consisted solely of testimony of highway patrolmen. No juvenile took the stand or offered any witness. The testimony was to the effect that on various occasions the. juveniles and adults were observed walking along High-' way 64 singing, shouting, clapping, and playing basketball. . As a result, there was interference with traffic. The marchers were asked to .leave the paved portion of the highway and they were warned that they were committing a statutory offense. They either refused or left the roadway and immediately returned. The juveniles and participating adults were taken into custody. Juvenile petitions were then filed with respect to those under the age of 16.
The evidence as to Howard was that on the morning of December 5, he was in the office of the principal of the O. A. Peay School with 15 other persons while school was in session and was moving furniture around; that the office was in disarray; that as a result the school closed before noon; and that neither he nor any of the others was a student at the school or authorized to enter the principal’s office.
In each case the court found that the juvenile had committed “an act for which an adult may be punished by law;.” A custody order was entered declaring the juvenile a delinquent “in need of more suitable, guardianship” and committing him to the custody of the County
On appeal, the cases were consolidated into two groups. The North Carolina Court of Appeals affirmed. In re Burrus, 4 N. C. App. 523,
Ill
It is instructive to review, as an illustration, the substance of Justice Roberts’ opinion for the Pennsylvania court. He observes,
Justice Roberts then concluded that such factors do inhere in the Pennsylvania juvenile system: (1) Although realizing that “faith in the quality of the juvenile bench is not an entirely satisfactory substitute for due process,” id., at 348,
The court concluded, id., at 350,
IV
The right to an impartial jury “[i]n all criminal prosecutions” under federal law is guaranteed by the Sixth Amendment. Through the Fourteenth Amendment that requirement has now been imposed upon the States “in all criminal cases which — were they to be tried in a federal court — would come within the Sixth Amendment’s guarantee.” This is because the Court has said it believes “that trial by jury in criminal cases is fundamental to> the American scheme of justice.” Duncan v. Louisiana,
Littlé, indeed, is to be gained-by any attempt simplistically to call the juvenile court proceeding either “civil” or “criminal.” The Court carefully has avoided this wooden approach. Before Gault was decided in 1967, the Fifth Amendment’s guarantee against self- ' incrimination had been imposed upon the state criminal trial. Malloy v. Hogan,
Thus, accepting “the proposition that the Due Process Clause has a role to play,” Gault,
V
The Pennsylvania juveniles’ basic argument is that they were tried in proceedings “substantially similar to a criminal trial.” They say that a delinquency proceed
The Norfh ■ Carolina juveniles particularly urge that the requirement of a jury trial would not operate to deny the supposed benefits of the juvenile court system; that the system’s primary benefits are its discretionary intake procedure permitting disposition short of adjudication, •and its flexible sentencing permitting emphasis on rehabilitation; that. realization of these benefits does not depend upon dispensing with the jury; that adjudication of factual issues on the one hand and disposition of the case on the other are very different matters with very different purposes; that the phrpose of the former is indistinguishable from that of the criminal trial; that the jury trial provides an independent protective factor; that
VI
All the litigants here agree that- the applicable due process standard in juvenile proceedings, as developed by Gault and Winship, is fundamental fairness. As that standard was applied in those two cases, we have an emphasis on factfinding procedures. The requirements of notice, counsel, confrontation, cross-examination, and standard of proof naturally flowed from this emphasis. But one cannot say that in our legal system the jury is a necessary component of accurate factfinding. There is much to be said for it, to be sure, but we have been con-, tent to pursue other ways for determining facts. Juries are not required, and have not been, for example, in equity cases, .in workmen’s compensation, in probate, or in deportation cases. Neither have they been generally used in military trials. In Duncan the Court stated, “We would not assert, however, that every criminal trial- — or any particular trial — held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.”
We must recognize, as the Court has recognized before, that the fond and idealistic hopes of the juvenile court
Despite all these disappointments, all these failures, and all these shortcomings, we conclude that trial by jury in the juvenile court’s adjudicative stage is not a constitutional requirement. We so conclude for a number of reasons:
1. The Court has refrained, in the cases heretofore decided, from taking the easy way with a flat holding that all rights constitutionally assured for the adult accused are .to be imposed upon the state juvenile proceeding. What was done in Gault and in Winship is aptly described in Commonwealth v. Johnson,
“It is clear to us that the Supreme Court has properly attempted to strike a judicious balance by injecting procedural orderliness into the juvenile court system. It is seeking to reverse the trend [pointed out in Kent,383 U.S., at 556 ] whereby The child receives the worst of both worlds ....’”
2. There is a possibility, at least, that the jury trial, if required as a matter of constitutional precept, will remake the juvenile proceeding into a fully adversary process and will put an effective end to what has .been the idealistic prospect of an intimate, informal protective proceeding.
3. The Task Force Report, although concededly pre-Gault, is notable for its not making any recommendation
5. The imposition of the jury trial on the juvenile court system would not strengthen gréatly, if at all, the factfinding function, and would, contrarily, provide an attrition of the juveniie court’s assumed ability to function in a unique manner. It would not remedy the defects of the system. Meager as has been the hoped-for advance in the juvenile field, the alternative would be regressive, would lose what has been gained, and would tend once again to place the juvenile squarely in .the routine of the criminal process.
6. The juvenile, concept held high promise. We are reluctant to say that, despite disappointments of grave dimensions, it still does not hold promise, and we are particularly reluctant to say, as do the Pennsylvania appellants here, that the system cannot accomplish its rehabilitative goals. So much- depends on the availability of resources, on the interest and commitment of the public, on willingness to learn, and on understanding as to cause and effect and cure. In this field, as in so many others, one perhaps learns best by doing. We are reluctant- to disallow the States to experiment further and to seek in new and different ways the elusive answers to the problems of the young, and we feel that we would be impeding that. experimentation by imposing the jury trial. The States, indeed, must go forward. If, in its wisdom, any State feels the jury trial is desirable in all cases, or in certain kinds, there appears to. be no impediment to its installing a system embracing that feature. That, however,' is the State’s privilege and not its obligation;
7. Of course there have been abuses. The Task Force Report has noted them. We refrain from saying at this
8. There is, of course, nothing to prevent a juvenile court judge, in a particular ease where he feels the need, or when the need is demonstrated, from using an advisory jury.
9. “The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ Snyder v. Massachusetts,
10. Since. Gault and since Duncan the great majority of States, in addition to Pennsylvania and North Carolina, that have faced, the issue have concluded that the considerations that led to the result in those two cases do not compel trial by -jury in the juvenile court. In re Fucini,
11. Stopping short of proposing the jury trial for juvenile proceedings are the Uniform Juvenile Court Act, § 24 (a), approved in July 1968 by the National Conference of Commissioners on Uniform State Laws;
12. If the jury trial were to be injected into the juvenile court system as a matter of right, it would bring with it into that system the traditional delay, the formality, and the clamor of the adversary system and, possibly,. the public trial. It is of.interest that these very factors were stressed.by the District Committee of the 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. S. Rep. No. 91-620, pp. 13-14 (1969).
13. Finally, the arguments advanced by the juveniles here are, of course, the identical arguments that underlie the demand for the jury trial for criminal proceedings. The arguments necessarily equate the juvenile proceeding — or at least the adjudicative phase of it — with the criminal trial. Whether they should be so equated is our issue. Concern about the inapplicability of exclusionary and other rules of evidence, about the juvenile ■court judge’s possible awareness of the juvenile’s prior record and of the contents of the social file; about repeated appearances of the same familiar witnesses, in the persons of juvenile and probation officers and social workers — all to the effect that this will create the likelihood of pre-judgment — chooses to ignore, it seems to us, every aspect of fairness, of concern, of sympathy, and of paternal attention that the juvenile court system contemplates.
Affirmed.
Notes
See Mr. Justice Fortas’ article, Equal Rights — For Whom?, 42 N. Y. U. L. Rev. 401, 406 (1967).
At McKéiver’s hearing his counsel advised the court that he had never seen McKeiyer before and “was just in the middle of interviewing” him. The court allowed him five minutes for the interview. Counsel’s office, Community Legal Services, however, had been appointed to represent McKeiver five months earlier. App. 2.
In North Carolina juvenile court procedures are provided only for persons under' the age of 16. N. C. Gen. Stat. §§ 7A-277 and 7A-278 (1) (1969).
“A recent study of juvenile court judges . . . revealed that half had not received undergraduate degrees; a fifth had received no college education at all; a fifth were not members of the bar.” Task Force Report 7.
“What emerges, then, is .this: In theory the juvenile court was to be helpful and rehabilitative rather than punitive. In fact the distinction often disappears, not only because of the absence of facilities and personnel but also because of the limits of knowledge and technique. In theory the court’s action was to affix no stigmatizing label. In fact a delinquent is generally viewed by employers, schools, the armed services — by society generally — as.a criminal. In theory the court was to treat children guilty of criminal acts in noncriminal ways. In fact it labels truants and runaways as junior criminals.
“In theory the court’s operations could justifiably be informal, its findings and decisions made without observing ordinary procedural safeguards, because it would act only in the best interest of the child. In fact it frequently does nothing more nor less than deprive a child of liberty without due process-of law — knowing not what else to do and needing, whether admittedly or. not, to act in the community’s interest even more imperatively than; the child’s. . In theory it was to exercise its protective powers to bring an errant child back into the fold. In fact there is increasing reason to believe that its intervention reinforces the juvenile’s unlawful impulses. In theory it
“Nevertheless,, study of the juvenile courts does, not necessarily lead to the conclusion that the time has come to jettison the experiment and remand the disposition of children charged with crime to the criminal courts of the country. As trying as are the problems of the juvenile courts, the problems of the criminal courts, particularly those of the lower courts, which would fall heir to much of the 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 of the juvenile court based on the recognition that in the past our reach exceeded our grasp. The spirit that animated the juvenile court movement was fed in part by a humanitarian compassion for offenders who were children. That willingness to understand and treat people who threaten public safety and security should be nurtured, not turned aside as hopeless sentimentality, both because it is civilized and because social protection itself demands constant search for alternatives to- the crude and limited expedient of condemnation and punishment. But neither should it be allowed to outrun reality. The juvenile court is a court of law, charged like other agencies of criminal justice with protecting the community against threatening conduct. Rehabilitating offenders through individualized handling is one way of providing protection, and appropriately the primary way in dealing with children. But the guiding consideration for a court of law that deals with threatening conduct is nonetheless protection of the community. The juvenile court, like -other courts, is therefore obliged to employ all the means at hand, not excluding incapacitation, for achieving that protection. What- should distinguish the juvenile from the criminal courts is greater emphasis on rehabilitation, not exclusive preoccupation with it.” Task Force Report 9.
Ala. Code, Tit. 13, § 369 (1958); Alaska Stat. § 47.10.070 (Supp. 1970); Ariz. Rev. Stat. Ann. § 8-229 (1956), see Ariz. Laws, c. 223 (May 19, 1970); Ark. Stat. Ann. § 45-206 (1964); Del. Code Ann., Tit. 10, § 1175 (Supp. 1970); Fla. Stat. § 39.09 (2) (1965); Ga. Code Ann. § 24-2420 (Supp. 1970); Hawaii Rev. Stat. § 571-41 (1968); Idaho Code § 16-1813 (Supp. 1969); Ind. Ann. Stat. § 9-3215 (Supp. 1970); Iowa Code § 232.27 (1971); Ky. Rev. Stat. § 208.060 (1962); La. Rev. Stat. § 13:1579 (Supp. 1962); Minn. Stat. § 260.155 subd. 1 (1969); Miss. Code Ann. § 7185-08 (1942); Mo. Rev. Stat. § 211.171 (6) (1969) (equity practice controls); Neb. Rev. Stat. § 43-206.03 (2) (1968); Nev. Rev. Stat. § 62.190 (3) (1968); N. J. Stat. Ann. § 2A:4-35 (1952); N. Y. Family Court Act §§ 164 and 165 and Civ. Prac. Law and Rules § 4101; N. C. Gen. Stat. § 7A-285 (1969); N. D. Cent. Code § 27-16-18 (1960); Ohio Rev. Code Ann. § 2151.35 (Supp. 1970); Ore. Rev. Stat. § 419.498 (1) (1968); Pa. Stat. Ann., Tit. 11, § 247 (1965); S. C. Code Ann. § 15-1095.19. (Supp. 1970); Utah Code Ann. § 55-10-94 (Supp. 1969); Vt. Stat. Ann., Tit. 33, § 651 (a) (Supp. 1970); Wash. Rev. Code Ann. § 13.04.030; D. C. Code § 16-2316 (a) (Supp. 1971).
In re Daedler,
Colo. Rev. Stat. Ann. § 37-19-24 (Supp. 1965); Kan. Stat. Ann. § 38-808 (Supp. 1969); Mich. Comp. Laws § 712A.17 (1948); Mont. Rev. Codes Ann. § 10-604.1 (Supp. 1969); Okla. Stat. Ann., Tit. 10, § 1110 (Supp. 1970); S. D. Comp. Laws § 26-8-31 (1967); Tex. Civ. Stat., Art. 2338-1, § 13 (b) (Supp. 1970); W. Va. Code Ann. § 49-5-6 (1966); Wis. Stat. Ann. § 48.25 (2) (Supp. 1971); Wyo. Stat. Ann. § 14-115.24 (Supp. 1971).
Concurrence Opinion
concurring.
Although the function of the jury is to find facts, that body is not necessarily or even probably better at the job than the conscientious judge. Nevertheless, the consequences of criminal guilt are so severe that the Constitution mandates a jury to prevent abuses of official power by insuring, where demanded, community participation in imposing serious deprivations of liberty and to provide a hedge against corrupt, biased, or political justice. We have not, however, considered the juvenile case a criminal proceeding within the meaning of the Sixth Amendment and hence automatically subject to all of the restrictions normally applicable in criminal cases. The question here is one of due process of law and I join the plurality opinion concluding that the States are not required by that clause to afford jury trials in juvenile courts where juveniles are charged with improper acts.
The criminal law proceeds on the theory that defendants have a will and are responsible for their actions. A finding of guilt establishes that they have chosen to engage in conduct so reprehensible and injurious to others that they must be punished to deter them and others from crime. Guilty defendants are considered blameworthy; they are branded and treated as such, however much, the State also pursues rehabilitative ends in the criminal justice system.
For the most'part, the juvenile justice system rests on more deterministic assumptions. Reprehensible acts by
Against this background and in light of the distinctive purpose of requiring juries in criminal cases, I am satisfied with the Court’s holding. To the extent that the jury is a buffer to the corrupt or overzealous prosecutor in the criminal law system, the distinctive intake policies and procedures of the juvenile court system to a great extent obviate this important function of the jury.. As for the necessity to guard against judicial bias, a system eschewing blameworthiness and punishment for evil choice is itself an operative force against prejudice and short-tempered justice.- Nor where juveniles are involved is there the same opportunity for corruption to the juvenile’s detriment or the same temptation to use the courts for political ends.
For me there remain differences of substance between criminal and juvenile courts. They are quite enough for me to hold that a jury is not required in the latter. Of course, there are strong arguments that juries are desirable when dealing with the young, and States are free to use juries if they choose. They are also free, if they extend criminal court safeguards to juvenile court adjudications, frankly to embrace condemnation, punishment, and deterrence as permissible and desirable attribhtes of the juvenile justice system. But the Due Process Clause neither compels nor invites them to do so.
Concurrence Opinion
concurring in the judgment in No. .322 and dissenting in No. 128.
I agree with the plurality opinion’s conclusion that the proceedings below in these cases were not “criminal prosecutions” within the meaning of the Sixth Amendment. For me, therefore, the question in these cases is whether jury trial is among, the “essentials of due process and fair treatment,” In re Gault,
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 state procedure to “protect the [juvenile] from oppression by the Government,” Singer v. United States,
Examined in this light, I find no defect in the Pennsylvania 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 community conscience, as embodied in the jury that hears
The North Carolina cases, however, present a different situation. North Carolina law either permits or requires exclusion of the general public from juvenile trials.
“A criminal process which was fair and equitable but used no juries is easy to imagine. It would make use of alternative guarantees and protections which would serve the purposes that the jury serves in the English and American systems.” Duncan v. Louisiana,
The generally applicable statute, Pa. Stat. Ann., Tit. 11, §245 (1965), merely provides that juvenile proceedings shall be “separate” from regular court business. Pa. Stat. Ann., Tit. 11, § 269-402 (1965), requiring exclusion of the general public from juvenile hearings, applies only to Allegheny County. Both of the instant cases were tried in Philadelphia County.
“The judges of the Philadelphia Juvenile Court exercise varying degrees of control over admission to the courtroom, but the press is generally admitted Brief for Appellants 9 n. 9.
N. C. Gen. Stat. § 110-24 (1966), in force at the time of these trials, appears on its face to permit but not require such exclusion, as does identical language in the present statute, N. C. Gen. Stat. § 7A-285 (1969). The North Carolina Supreme Court in the present cases has read these statutes as.a legislative determination “that a public hearing is [not] in the best interest of the youthfui offender.” In re Burrus,
Dissenting Opinion
with whom Mr. Justice Black and Mr. Justice Marshall concur, dissenting.
These cases from Pennsylvania and North Carolina present the issue of the right to a jury trial for offenders charged in juvenile court and facing a possible incarcer
In the Pennsylvania cases one of the appellants was charged ■ with robbery (Pa. Stat. Ann., Tit. 18, § 4704 (1963)), larceny (Pa. Stat. Ann., Tit; 18, § 4807), and receiving stolen goods (Pa. Stat. Ann., Tit. 18, § 4817) as acts of juvenile delinquency.- Pa. Stat. Ann., Tit. 11, § 246 (1965). He was found a delinquent and placed on probation. The other appellant was charged with assault and battery on a police officer (Pa. Stat. Ann., Tit. 18, § 4708) and conspiracy (Pa. Stat. Ann., Tit. 18, § 4302) as acts of juvenile delinquency. On a finding of delinquency he was committed to a youth center. Despite the fact that the two appellants, aged 15 and 16, would face potential incarceration until their majority, Pa. Stat. Ann., Tit. 11, § 250, they were denied a jury trial.
In the North Carolina cases petitioners are students, from 11. to 15 years of age, who were charged under one of three criminal statutes: (1) “disorderly conduct” in a public building, N. C. Gen. Stat. § 14-132 (1969); (2) “wilful” interruption or disturbance of a públic 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. § 20-174.1 (1965 and Supp. 1969).
Conviction of each of these crimes would subject a person, whether juvenile or adult, to imprisonment in a state institution. In the case of these students the possible term was six to 10 years; it 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 were juvenile hearings, not criminal trials. But the issue in each case was whether
We held in In re Gault,
“Where a person, infant or adult, can be seized by the State, charged, and convicted for violating a state criminal law, and then ordered 'by the State to be confined for six years, I think the Constitution requires that' he be tried in accordance with the guarantees of all the provisions of-the Bill of Rights made ■ applicable to the States by the Fourteenth Amendment. Undoubtedly this would be true of an adult defendant, and it would be a plain denial of equal protection of the laws — an invidious dis*560 crimination — to hold that others subject to heavier punishments could-, because they are children, be denied these same constitutional safeguards.”
Just as courts have sometimes confused delinquency with crime, so have law enforcement officials treated juveniles not as delinquents but as criminals. As noted in the President’s Crime Commission Report:
“In 1965, over 100,000 juveniles were confined in' adult institutions. Presumably most of them were there because no separate juvenile detention facilities existed. Nonetheless, it is clearly undesirable that juveniles be confined with adults.” President’s Commission on Law Enforcement and Administration of Justice, Challenge of Crime in a Free Society 179 (1967).
Even when juveniles are not incarcerated with adults the situation may be no better. One Pennsylvania correctional institution for juveniles is a brick building with barred windows, locked steel doors, a cyclone fence topped with barbed wire, and guard towers. A former ‘juvenile judge described it as “a maximum security prison for adjudged delinquents.” In re Bethea,
In the present cases imprisonment or confinement up to 10 years was possible for one child and each faced at least a possible five-year incarceration. No adult could be denied a jury trial in those circumstances. Duncan v. Louisiana,
“I can see no.basis whatsoever in the language of the Constitution for allowing persons like appellant the benefit of those rights and yet denying them a jury trial, a right which is surely one of the fundamental aspects of criminal justice in the English-speaking world.”396 U. S., at 34 .
I added that by reason of the Sixth and Fourteenth Amendments the juvenile 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 of. delinquency is the crime of forgery.” Id., at 35.
Practical aspects of these problems are urged against allowing a jury trial in these cases.
“The child who feels that he has been dealt with fairly and not merely expediently or as speedily as possible will be a better prospect for rehabilitation. Many of the children who come before the court come from broken homes, from the ghettos; they often suffer from low self-esteem; and their behavior is frequently , a symptom of their own feelings of inadequacy. Traumatic experiences of denial of basic rights only accentuate the past deprivation and ■contribute to the problem. Thus, a general societal attitude of acceptance of the juvenile as a person entitled to the same protection as an adult may be the true beginning of the rehabilitative process.”
“No freeman may be . . . imprisoned . . . except by the lawful judgment of his peers, or by the law of the land.”
These cases should be remanded for trial by jury on the criminal charges filed against these youngsters.
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING
De Ciantis, J.: The defendant, who will hereinafter be referred to as a juvenile, on the sixth day of September,. 1969, was charged with Rape upon a female child, seventeen years old, in violation of Title 11, Chapter 37, Section 1, of the General Laws of 1956.
TRAUMA
The fact is that the procedures which are now followed in juvenile cases are far more traumatic than the potential ■experience of a jury trial. Who can say that a boy who is arrested and handcuffed, placed in a lineup, transported in vehicles designed to convey dangerous criminals, placed in the same kind of a cell as an adult, deprived of his freedom by lodging him in an institution where he is subject to be transferred to the state’s prison and in the “hole” has not undergone a traumatic experience?
The experience of a trial with or without a jury is meant to be impressive and-meaningful. The fact that a juvenile realizes that his- case will be decided by twelve
It is contrary to the fundamental principles of due process for the court to be compelled, as it is in this state, to act as a one-man grand jury, then sit in judgment on its own determination arising out of the facts and proceedings which. he conducted. This responsibility belongs with a jury.
BACKLOG
An argument has been made that to allow jury trials would cause a great backlog of cases and, ultimately, would impair the functioning of the juvenile court. The fact however is that there is no meaningful evidence that granting the right to jury trials will impair the function of the court: Some states permit jury trials in all juvenile court cases; few juries have been demanded, and there is no suggestion from these courts, that jury trials have .impeded the system of juvenile justice.
The recent Supreme Court decision of Williams vs Florida, [
In fact the very- argument of expediency, suggesting “supermarket” or' “assembly-line” justice is one of the most forceful arguments in favor of granting jury trials. By granting the juvenile the right to a jury trial, we would, in fact, be protecting the accused from the judge who is under pressure to move the cases, the judge with too many cases and not enough time. It will provide a safeguard against the judge who may be prejudiced against a minority group or who may be prejudiced, against-the juvenile brought before him because of somé past occurrence which was heard by the same judge.
There have been criticisms that juvenile court judges, because of their hearing caseload, do not carefully weigh the evidence in the adjudicatory phase of the proceedings.
It is important to note, at this time, a definite side benefit of granting jury trials, i. e., an aid to rehabilitation. The child who feels that he has been dealt with fairly and not merely expediently or as speedily as possible will be a better prospect for rehabilitation. Many of the children who come before the court come from broken homes, from the ghettos; they often suffer from low self-esteem; and their behavior is frequently a symptom of their own feelings of inadequacy. Traumatic experiences of denial of basic rights only accentuate the past deprivation and contribute to the problem. Thus,, a general societal attitude of acceptance of the juvenile as a person entitled to the same protection as an adult may be the true beginning of the rehabilitative process.
PUBLIC TRIAL
Public trial in the judgment of this Court does not affect the juvenile court philosophy-
[In] In re Oliver
1. “Public trials come to the attention of key witnesses unknown to the parties. These witnesses may then voluntarily come forward and give important testimony.”
2. “The spectators learn about their government and acquire confidence in their judicial remédies.”
3. “The knowledge that every criminal trial is subject to contemporaneous review in the [forum] of public opinion is ah effective restraint on possible abuse of judicial power.” (P. 270.)
Justice Black has nothing to say on the question of whether a public trial acts as a deterrent to crime, but it is clear that he believes publicity to improve the quality of criminal justice, both theoretically and practically.
As for .the juvenile trial issue, he writes:
“Whatever may be the classification of juvenile court proceedings, they are often conducted without admitting all the public. But it has never been the practice to wholly exclude parents, relatives, and friends, or to refuse juveniles the benefit of counsel.” (P. 266.)
In fact, the juvenile proceedings as presently conducted are far from secret. Witnesses for the prosecution and for the defense, social workers, court reporters, students, police trainees, probation counselors, and sheriffs are present in the courtroom. Police, the Armed Forces, the Federal Bureau of Investigation obtain information and have access to the police files. There seems no more reason to believe that a jury trial would destroy confidentiality than would witnesses summoned to testify.
“A juvenile’s adjudication record is required by the law of most jurisdictions to be private and confidential; in practice the confidentiality of those reports is often violated.” Furthermore, “[statutory restrictions almost invariably apply only to court records, and even as to those the evidence is that many courts routinely furnish information to the FBI and the military, and on request to government agencies and even to private employers.”
JUDGE’S EXPERTISE
The Court is also aware of the argument that the juvenile court was created to develop judges who were experts in sifting out the real problems behind a juvenile’s breaking the law; therefore, to place the child’s fate in the hands of a jury would defeat that purpose. This will, however, continue to leave the final decision of disposition solely with the judge. The role of the jury will be only to ascertain whether the facts, which give the court jurisdiction, have been established beyond a reasonable doubt. The jury will not be.concernéd with social and psychological factors. These factors, along with prior record, family and educational background, will be considered by the judge during the dispositional phase.
Taking into consideration the social background and other facts, the judge, during the dispositional phase, will determine what disposition is in the best interests of the child and society. It is at this stage that a judge’s expertise is most important, and the granting of a jury trial
Trial by jury will provide the child with a safeguard against being prejudged. The jury clearly will have no business in learning of the social report or any of the other extraneous matter unless properly introduced under the rules of evidence. Due process demands that the trier of facts should not be acquainted with any of the facts of the case or have knowledge of any of the circumstance's, whether through officials in his own department or records in his possession. . If the accused believes that the judge has read an account of the facts submitted by the police or any other report prior to the adjudicatory hearing and that this may prove prejudicial, he can demand a jury and insure against such knowledge on the part of the trier of the facts.
WAIVER OF JURY TRIAL
Counsel also questions whether a child can waive his right to a'jury trial or, in fact, whether a parent or counsel may waive.
When the waiver comes up for hearing, the Court could, at its discretion, either grant or refuse the juvenile’s waiver of a jury trial, and/or appoint a guardian or legal counsel to advise the child.
My experience has shown that the greatest percentage of juveniles who appear before the court in felony cases have lived appalling lives due to parental neglect and brutality, lack of normal living conditions, and poverty. This has produced in then! a maturity which is normally acquired much later in life. They are generally well aware of their rights in a court of law. However, in those cases where a child clearly needs guidance, the court-appointed guardian or attorney could explain to him the implications of a waiver. The juvenile’s rights and interests would thus be protected every bit as strin
Counsel is placed with the responsibility of explaining to the juvenile the significance of guilty and nolo con-tendere pleas, of instructing the juvenile on the prerogative to take the witness stand, and is expected to advise his client in the same- manner as he would an adult about to stand trial. And now counsel suggests to the Court that counsel is not capable of explaining and waiving the right to a jury trial. The Court fails to see the distinction between this waiver and the absolute waiver, to wit, a guilty plea. Counsel should act in the best interest of his client, even if this may be in conflict with the parents. On a number of occasions this Court has appointed counsel for a juvenile whose parents .could not afford to retain private counsel, and where the parents’ interests were in conflict with those of the child. This procedure will b.e continued and the Court will continue to rely on the good judgment of the bar.
The Court could easily require that a waiver of a jury trial be made in person by the juvenile in writing, in open court, with the consent and approval of the Court and the attorney representing both the juvenile and the state. The judge could ascertain as to whether the juvenile can intelligently waive his right and, if necessary, appoint counsel to advise the youth as to the implications connected with the waiver. This could be accomplished without any difficulty through means presently available to the Court.
JURY OF PEERS
One of the most interesting questions raised is that concerning the right of a juvenile to a trial by his peers. Counsel has suggested that a jury of a juvenile’s peers
■ The only restriction on the makeup of the jury is that there can be no systematic exclusion of those who meet local and federal requirements, in particular, voting qualifications.
The Court notes that preséntly in some states 18-year-olds can vote. Presumably, if they can vote, they may also serve on juries. Our own legislature has given first passage to an amendment to the Constitution to permit 18-year-olds to vote. Thus, it is quite possible that we will have teenage jurors sitting in judgment of their so-called “peers.”
CRIMINAL PROCEEDING
The argument that the adjudication of delinquency is not the equivalent of criminal process is spurious. This Court has discussed the futility of making distinctions on the basis of labels in prior decisions. Because the legislature dictates that a child who commits a felony shall be called a delinquent does not change the nature of the crime. Murder is murder; robbery is robbery — they are
It is noteworthy that in our statute there is not an express statutory provision indicating that the proceedings are civil. Trial by jury in Rhode Island is guaranteed to all persons, whether in criminal cases or in civil cases. That right existed prior to the adoption of the Constitution; and .certainly whether one is involved in a civil or criminal proceeding of the Family Court in which his “liberty” is to be “taken” “imprisoned” “outlawed” and “banished” he is entitled to a trial by jury. (Henry vs Cherry & Webb, 30 R. I. 13, at 30).
This Court believes that although the juvenile court was initially created as a social experiment, it has not ceased to be part of the judicial system. In view of the potential loss of liberty at stake in the proceeding, this Court is compelled to accord due process to- all the litigants who come before it; and, therefore, all of the provisions of the Bill of Rights, including trial by jury, must prevail.
The Court concludes that the framers of our Constitution never intended to place the power in any one man or official, and take away the “protection of the law from the rights of an individual.” It meant “to secure the blessings of liberty to themselves and posterity.” The Constitution was written with the philosophy based upon a composite of all of the most liberal ideas which came down through the centuries; The Magna Charta, the Petition of Rights, the Bill of Rights and the Rules of Common Law; and the keystone is the preservation of individual liberty. All these ideas were carefully inserted in our Constitution.
The juvenile is constitutionally entitled to a jury trial.
The Public Defender Service for the District of Columbia and the Neighborhood Legal Services Program of Washington, D. C., have filed a brief amicus in which 'the results of a survey of jury trials in delinquency cases in the 10 States requiring jury trials plus the District of Columbia are set forth. The cities selected were mostly large metropolitan areas. Thirty juvenile courts processing about' 75,000 juvenile cases a year were canvassed:
“[W]e discovered that during the past five and a half years, in' 22 out of 26 courts surveyed, cumulative requests for jury trials totaled 15 or less. In the remaining five courts in our sample, statistics were unavailable. During the same period, in 26 out of 29*562 courts the cumulative number of jury trials actually held numbered 15 or less, with statistics unavailable for two courts in our sample. For example, in Tulsa, Oklahoma, counsel is present in 100% .of delinquency cases, but only one jury trial has been requested and held during the past five and one-half years. In the Juvenile Court of Fort Worth, Texas, counsel is also present in 100% of the cases, and only two jury trials have been requested since 1967. The Juvenile Court in Detroit, Michigan, reports that counsel is appointed in 70-80% of its delinquency cases, but thus far in 1.970, it has had only four requests for ¿ jury. Between 1965 and 1969 requests for -juries were reported as ‘very few.’
“In only four juvenile courts in our sample has there clearly been a total during the past five and one-half years of more than 15 jury trial requests and/or more than 15 such trials held.”
The four courts showing more than 15 requests for jury trials were Denver, Houston, Milwaukee, and Washington, D. C.
Reis, 7 CrL 2151 (1970).
Concurrence Opinion
concurring in the judgments.
If I felt myself constrained to ■ follow Duncan v. Louisiana,
I concur in the judgments in these cases, however, on. the ground that criminal jury trials are not constitutionally required of the States, either as' a matter of Sixth Amendment law or due process. See my concurring and dissenting opinion in Duncan and my separate opinion in Williams v. Florida,