Part V: Juvenile Justice
The following case has been heavily edited and abridged. The idea is to make it more readable. As such, it should not be relied upon as binding authority.
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:
- Haley v. Ohio (1948), concerned the admissibility of a confession taken from a 15-year-old boy on trial for first-degree murder. It was held that, upon the facts there developed, the Due Process Clause barred the use of the confession. MR. JUSTICE DOUGLAS, in an opinion in which three other Justices joined, said, “Neither man nor child can be allowed to stand condemned by methods which flout constitutional requirements of due process of law.”
- Gallegos v. Colorado (1962), where a 14-year-old was on trial, is to the same effect.
- Kent v. United States (1966), concerned a 16-year-old charged with housebreaking, robbery, and rape in the District of Columbia. The issue was the propriety of the juvenile court’s waiver of jurisdiction “after full investigation,” as permitted by the applicable statute. It was emphasized that the latitude the court possessed within which to determine whether it should retain or waive jurisdiction “assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a ‘full investigation.'”
- In re Gault(1967), concerned a 15-year-old, already on probation, committed in Arizona as a delinquent after being apprehended upon a complaint of lewd remarks by telephone. Mr. Justice Fortas, in writing for the Court, reviewed the cases just cited and observed,
“Accordingly, while these cases relate only to restricted aspects of the subject, they unmistakably indicate that, whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”
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.” 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.” 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.
- DeBacker v. Brainard (1969) presented, by state habeas corpus, a challenge to a Nebraska statute providing that juvenile court hearings “shall be conducted by the judge without a jury in an informal manner.” However, because that appellant’s hearing had antedated the decisions in Duncan v. Louisiana (1968), and Bloom v. Illinois (1968), and because Duncan and Bloom had been given only prospective application by DeStefano v. Woods (1968), DeBacker’s case was deemed an inappropriate one for resolution of the jury trial issue. His appeal was therefore dismissed. MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS, in separate dissents, took the position that a juvenile is entitled to a jury trial at the adjudicative stage. MR. JUSTICE BLACK described this as “a right which is surely one of the fundamental aspects of criminal justice in the English-speaking world,” and MR. JUSTICE DOUGLAS described it as a right required by the Sixth and Fourteenth Amendments “where the delinquency charged is an offense that, if the person were an adult, would be a crime triable by jury.”
- In re Winship (1970), concerned a 12-year-old charged with delinquency for having taken money from a woman’s purse. The Court held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,” at and then went on to hold that this standard was applicable, too, “during the adjudicatory stage of a delinquency proceeding.”
From these six cases—Haley, Gallegos, Kent, Gault, DeBacker, and Winship—it is apparent that:
- 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.
- 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 administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.”
- The Court, although recognizing the high hopes and aspirations of Judge Julian Mack, the leaders of the Jane Addams School and the other supporters of the juvenile court concept, has also noted the disappointments of the system’s performance and experience and the resulting widespread disaffection. There have been, at one and the same time, both an appreciation for the juvenile court judge who is devoted, sympathetic, and conscientious, and a disturbed concern about the judge who is untrained and less than fully imbued with an understanding approach to the complex problems of childhood and adolescence. There has been praise for the system and its purposes, and there has been alarm over its defects.
- 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.” On the other hand, a concern precisely to the opposite effect was expressed by two dissenters in Winship.
With this substantial background already developed, we turn to the facts of the present cases:
Joseph McKeiver, then age 16, in May 1968 was charged with robbery, larceny, and receiving stolen goods (felonies under Pennsylvania law as acts of juvenile delinquency. At the time of the adjudication hearing he was represented by counsel. His request for a jury trial was denied and his case was heard by Judge Theodore S. Gutowicz of the Court of Common Pleas, Family Division, Juvenile Branch, of Philadelphia County, Pennsylvania. McKeiver was adjudged a delinquent upon findings that he had violated a law of the Commonwealth. He was placed on probation. On appeal, the Superior Court affirmed without opinion.
Edward Terry, then age 15, in January 1969 was charged with assault and battery on a police officer and conspiracy 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 in 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.
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 in the negative. We noted probable jurisdiction.
The details of the McKeiver and Terry offenses are set forth in Justice Roberts’ opinion for the Pennsylvania court… McKeiver’s offense was his participating with 20 or 30 youths who pursued three young teenagers and took 25 cents from them; that McKeiver never before had been arrested and had a record of gainful employment; that the testimony of two of the victims was described by the court as somewhat inconsistent and as “weak”; and that Terry’s offense consisted of hitting a police officer with his fists and with a stick when the officer broke up a boys’ fight Terry and others were watching.
Barbara Burrus and approximately 45 other black children, ranging in age from 11 to 15 years, 3 were the subjects of juvenile court summonses issued in Hyde County, North Carolina, in January 1969.
The charges arose out of a 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 willfully impeding traffic. The charge against Howard was that he willfully 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 charged are misdemeanors under North Carolina law.
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 cases, 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 Highway 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 Department of Public Welfare for placement in a suitable institution “until such time as the Board of Juvenile Correction or the Superintendent of said institution may determine, not inconsistent with the laws of this State.” The court, however, suspended these commitments and placed each juvenile on probation for either one or two years conditioned upon his violating none of the State’s laws, upon his reporting monthly to the County Department of Welfare, upon his being home by 11 p. m. each evening, and upon his attending a school approved by the Welfare Director. None of the juveniles has been confined on these charges.
On appeal, the cases were consolidated into two groups. The North Carolina Court of Appeals affirmed. In its turn the Supreme Court of North Carolina deleted that portion of the order in each case relating to commitment, but otherwise affirmed. Two justices dissented without opinion. We granted certiorari.
It is instructive to review, as an illustration, the substance of Justice Roberts’ opinion for the Pennsylvania court. He observes that “for over sixty-five years the Supreme Court gave no consideration at all to the constitutional problems involved in the juvenile court area”; that Gault “is somewhat of a paradox, being both broad and narrow at the same time”; that it “is broad in that it evidences a fundamental and far-reaching disillusionment with the anticipated benefits of the juvenile court system”; that it is narrow because the court enumerated four due process rights which it held applicable in juvenile proceedings, but declined to rule on two other claimed rights that as a consequence the Pennsylvania court was “confronted with a sweeping rationale and a carefully tailored holding,” that the procedural safeguards “Gault specifically made applicable to juvenile courts have already caused a significant ‘constitutional domestication’ of juvenile court proceedings,” that those safeguards and other rights, including the reasonable-doubt standard established by Winship, “insure that the juvenile court will operate in an atmosphere which is orderly enough to impress the juvenile with the gravity of the situation and the impartiality of the tribunal and at the same time informal enough to permit the benefits of the juvenile system to operate” that the “proper inquiry, then, is whether the right to a trial by jury is ‘fundamental’ within the meaning of Duncan, in the context of a juvenile court which operates with all of the above constitutional safeguards,” and that his court’s inquiry turned “upon whether there are elements in the juvenile process which render the right to a trial by jury less essential to the protection of an accused’s rights in the juvenile system than in the normal criminal process.”
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,” the judges in the juvenile courts “do take a different view of their role than that taken by their counterparts in the criminal courts.” (2) While one regrets its inadequacies, “the juvenile system has available and utilizes much more fully various diagnostic and rehabilitative services” that are “far superior to those available in the regular criminal process.” (3) Although conceding that the post-adjudication process “has in many respects fallen far short of its goals, and its reality is far harsher than its theory,” the end result of a declaration of delinquency “is significantly different from and less onerous than a finding of criminal guilt” and “we are not yet convinced that the current practices do not contain the seeds from which a truly appropriate system can be brought forth.” (4) Finally, “of all the possible due process rights which could be applied in the juvenile courts, the right to trial by jury is the one which would most likely be disruptive of the unique nature of the juvenile process.” It is the jury trial that “would probably require substantial alteration of the traditional practices.” The other procedural rights held applicable to the juvenile process “will give the juveniles sufficient protection” and the addition of the trial by jury “might well destroy the traditional character of juvenile proceedings.”
The court concluded that it was confident “that a properly structured and fairly administered juvenile court system can serve our present societal needs without infringing on individual freedoms.”
The right to an impartial jury “in 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.”
This, of course, does not automatically provide the answer to the present jury trial issue, if for no other reason than that the juvenile court proceeding has not yet been held to be a “criminal prosecution,” within the meaning and reach of the Sixth Amendment, and also has not yet been regarded as devoid of criminal aspects merely because it usually has been given the civil label.
Little, 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. So, too, had the Sixth Amendment’s rights of confrontation and cross-examination. Yet the Court did not automatically and peremptorily apply those rights to the juvenile proceeding. A reading of Gault reveals the opposite. And the same separate approach to the standard-of-proof issue is evident from the carefully separated application of the standard, first to the criminal trial, and then to the juvenile proceeding, displayed in Winship.
Thus, accepting “the proposition that the Due Process Clause has a role to play.” Our task here with respect to trial by jury, as it was in Gault with respect to other claimed rights, “is to ascertain the precise impact of the due process requirement.”
The Pennsylvania juveniles’ basic argument is that they were tried in proceedings “substantially similar to a criminal trial.” They say that a delinquency proceeding in their State is initiated by a petition charging a penal code violation in the conclusory language of an indictment; that a juvenile detained prior to trial is held in a building substantially similar to an adult prison; that in Philadelphia juveniles over 16 are, in fact, held in the cells of a prison; that counsel and the prosecution engage in plea bargaining; that motions to suppress are routinely heard and decided; that the usual rules of evidence are applied; that the customary common-law defenses are available; that the press is generally admitted in the Philadelphia juvenile courtrooms; that members of the public enter the room; that arrest and prior record may be reported by the press (from police sources, however, rather than from the juvenile court records); that, once adjudged delinquent, a juvenile may be confined until his majority in what amounts to a prison, describing the state correctional institution at Camp Hill as a “maximum security prison for adjudged delinquents and youthful criminal offenders”); and that the stigma attached upon delinquency adjudication approximates that resulting from conviction in an adult criminal proceeding.
The North 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 purpose of the former is indistinguishable from that of the criminal trial; that the jury trial provides an independent protective factor; that experience has shown that jury trials in juvenile courts are manageable; that no reason exists why protection traditionally accorded in criminal proceedings should be denied young people subject to involuntary incarceration for lengthy periods; and that the juvenile courts deserve healthy public scrutiny.
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 content 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.” In DeStefano, for this reason and others, the Court refrained from retrospective application of Duncan, an action it surely would have not taken had it felt that the integrity of the result was seriously at issue. And in Williams v. Florida (1970), the Court saw no particular magic in a 12-man jury for a criminal case, thus revealing that even jury concepts themselves are not inflexible.
We must recognize, as the Court has recognized before, that the fond and idealistic hopes of the juvenile court proponents and early reformers of three generations ago have not been realized. The devastating commentary upon the system’s failures as a whole, contained in the President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and Youth Crime (1967), reveals the depth of disappointment in what has been accomplished. Too often the juvenile court judge falls far short of that stalwart, protective, and communicating figure the system envisaged. The community’s unwillingness to provide people and facilities and to be concerned, the insufficiency of time devoted, the scarcity of professional help, the inadequacy of dispositional alternatives, and our general lack of knowledge all contribute to dissatisfaction with the experiment.
The Task Force Report, however, also said, “To say that juvenile courts have failed to achieve their goals is to say no more than what is true of criminal courts in the United States. But failure is most striking when hopes are highest.”
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:
- 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 inGault 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 whereby ‘the child receives the worst of both worlds . . . .'”
- 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.
- The Task Force Report, although concededly pre-Gault, is notable for its not making any recommendation that the jury trial be imposed upon the juvenile court 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 to the handling of juveniles, surely a recommendation or suggestion to this effect would have appeared. The intimations, instead, are quite the other way. Further, it expressly recommends against abandonment of the system and against the return of the juvenile to the criminal courts.
- The Court specifically has recognized by dictum that a jury is not a necessary part even of every criminal process that is fair and equitable.
- The imposition of the jury trial on the juvenile court system would not strengthen greatly, if at all, the factfinding function, and would, contrarily, provide an attrition of the juvenile 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.
- 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.
- Of course there have been abuses. The Task Force Report has noted them. We refrain from saying at this point that those abuses are of constitutional dimension. They relate to the lack of resources and of dedication rather than to inherent unfairness.
- There is, of course, nothing to prevent a juvenile court judge, in a particular case where he feels the need, or when the need is demonstrated, from using an advisory jury.
- “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.’ It therefore is of more than passing interest that at least 29 States and the District of Columbia by statute deny the juvenile a right to a jury trial in cases such as these. The same result is achieved in other States by judicial decision. 8 In 10 States statutes provide for a jury trial under certain circumstances.
- 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.
- 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; the Standard Juvenile Court Act, Art. V, § 19, proposed by the National Council on Crime and Delinquency; and the Legislative Guide for Drafting Family and Juvenile Court Acts § 29 (a).
- 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.
- 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.
If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its separate existence. Perhaps that ultimate disillusionment will come one day, but for the moment we are disinclined to give impetus to it.
Last Modified: 04/30/2021