ACKNOWLEDGING AND PROTECTING AGAINST JUDICIAL BIAS AT FACT-FINDING IN JUVENILE COURT.

• Author: Loveland, Prescott

TABLE OF CONTENTS Introduction 285 I. A Brief History of the Jury Trial and of Juvenile Court 285 A. The American Jury Trial 286 B. The American Juvenile Court 287 C. Constitutional Rights in Juvenile Court 290 D. McKeiver: No Right to a Jury Trial in Juvenile Court Under the Constitution 292 II. Judicial Bias in Juvenile Court: A Reality Often Ignored 293 A. Judicial Biases that Can Undermine Juvenile Court Fact-Finding 293 1. Bias from Exposure to Inadmissible Information 294 2. Political Bias 295 3. Situational Bias 296 4. Bias from Having Multiple Roles and a Repetitive Job 298 5. Corruption Bias 299 6. Racial Bias 301 B. The Protective Features of a Jury Trial 304 1. Group Decision-Making 304 2. Voir Dire 305 3. Jury Instructions 306 C. Critiques of the Jury System 306 III. Limiting Judicial Bias in Juvenile Court 308 A. In Re L.M.: The Kansas Supreme Court Extends the Jury Protection to Juveniles 309 B. Ways (Other than a Jury) to Protect Against Judicial Bias 310 1. Ensuring Different Judges for Different Phases of the Case 310 2. Recusal 311 3. Seeking Advisory Juries and Group Deliberation 311 4. Utilizing Jury Instructions in Bench Trials 312 5. Managing Situational Biases Through Increased Self-Awareness 312 6. Understanding and Limiting the Influence of Implicit Bias 312 C. The Importance of Juveniles Perceiving Juvenile Court to Be Fair 315 Conclusion 316 INTRODUCTION

Judges, not juries, are the fact-finders in juvenile court because most states do not recognize a jury right for juveniles. (1) Failing to adequately protect juveniles from the biases of juvenile court judges can lead to innocent juveniles and their families being involved in a juvenile justice system that has very serious consequences. This Essay outlines how judges came to be the fact-finders in juvenile court and explains ways that juvenile court judges are uniquely susceptible to several types of bias that can undermine fact-finding. (2) The distorting influence of judicial biases can lead to inaccurate fact-finding and, in turn, to the improper adjudication of children as "delinquent." Further, the failure to limit apparent bias can lead juveniles to perceive juvenile court as inherently unfair, thereby undermining their willingness to participate and their broader opinion of the justice system. The risk of judicial bias at fact-finding in juvenile court can and should be minimized by using juries or other protective procedures. (3)

Part I of this Essay provides a brief history of the jury trial and of juvenile courts. Part I also discusses the procedural protections that the Supreme Court has extended to juvenile court, and the Court's decision in McKeiver to not extend a constitutional jury trial right to juvenile court. Part II describes various forms of judicial bias that can undermine fact-finding in juvenile court and it briefly discusses some features of the jury trial system that can shield against bias. Part III discusses how courts and policy-makers can protect juveniles from judicial bias by either extending the jury right to juvenile court or by instituting other protective measures.

1. A BRIEF HISTORY OF THE JURY TRIAL AND OF JUVENILE COURT

   This Part provides a brief overview of the jury trial protection in criminal court and of the juvenile justice system, including the Supreme Court's extension of certain Due Process protections to juvenile court.

   1. The American Jury Trial

      An accused person's right to a trial by jury has long been vital to the American criminal justice system. (4) The jury, as Justice Hugo Black noted, is "one of the fundamental aspects of criminal justice in the English-speaking world." (5) The jury traces back to the Magna Carta in 1215, and it underpinned English common law. (6) Trial by jury was adopted by the Framers when the U.S. Constitution was ratified, was included in the Bill of Rights via the Sixth Amendment, (7) and was incorporated to the states as a fundamental right through the Fourteenth Amendment. (8) Every state has adopted the right to a jury trial in their state constitutions (9) and has passed legislation guaranteeing the right to a jury trial in serious criminal cases. (10) The Supreme Court has made clear that the Sixth Amendment guarantee of a trial by jury in criminal cases is "fundamental to the American scheme of justice." (11)

      The architects of the American justice system made the jury foundational to assure fairer trials and to protect from "corrupt or overzealous government action" including the biases of judges. (12) In deciding that the jury trial right is fundamental, the Supreme Court explained in clear terms how important the jury is to check government power:

      Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.... [T]he jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power--a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. (13) The jury also lends legitimacy to the adjudication process. The jury is the primary link between courts and the communities that the courts are supposed to serve. Through jury service, the community is involved in the important decisions that courts make about life, liberty, and justice. Since the inception of the American legal system, juries have brought the community to the courtroom, helped "temper the legal mind with a healthy dosage of common sense and human emotion," (14) and have supplied a "nexus between the legislature's original intent and the community's sense of justice." (15)

   2. The American Juvenile Court

      The first juvenile court was created in Illinois in 1899. (16) By 1925, nearly every state had some process aimed at adjudicating juveniles accused of crimes differently than adults. (17) The founders of juvenile courts hoped that a separate system for juveniles would be one of the generation's great contributions to the status of children in American society. (18) Juvenile courts inquired more deeply into juveniles' individual circumstances, such as school, family, home life, and court history. (19) An overarching ideal of these new juvenile courts was rehabilitation over punishment. (20) Parens patriae, often considered the founding principle of American juvenile justice, is the idea that the state has a duty to intervene and care for so-called "troubled" children. (21) Juvenile courts sought to be more sympathetic and less formal, and to make determinations about the best interests of children who were perceived as "youngsters whose crimes were the product of immaturity." (22)

      In an effort to protect juveniles from the harsh strictures of the adult criminal system, unique features were introduced, such as closed and confidential hearings, clinical examinations, broad and exclusive jurisdiction, more lenient sentencing, and judges rather than juries as fact-finders. (23) The judge's role expanded to one that was all-encompassing: managing the case, learning about the juvenile's life, ruling on evidentiary disputes, sentencing juveniles, and also--despite all the inadmissible information the judge was privy to--adjudicating guilt through bench trials rather than jury trials. (24)

      Regardless of the intent to create a system that was unique from the adult criminal justice system, juvenile courts have evolved to closely resemble adult criminal courts over the last fifty years. For instance, juvenile justice in every state has shifted toward an approach "that often holds young offenders to the same standard of criminal accountability [as] adults." (25) The resemblances between juvenile and adult courts are now apparent in how juveniles are regarded, in the procedural rights they are afforded, (26) in the similarities between juvenile and adult jails, and in the punishments received. (27) The jurisdiction of juvenile court also continues to shrink as more juveniles are transferred to adult court. (28) Increasing numbers of children are receiving adult-like sentences and are being prosecuted in juvenile court for normal juvenile behavior. (29)

      Some scholars attribute this punitive shift in juvenile justice to the Due Process procedural protections extended to juvenile courts by the Supreme Court. (30) Other commentators perceive the shift as a hasty response to an increase in juvenile crime in the 1970s through 1990s. (31) During that time, people and politicians became increasingly uneasy with the informality of juvenile courts and skeptical of juvenile courts' ability to properly handle juveniles who were considered violent. (32) Prompted in part by sensationalized juvenile crime, (33) people latched on to a fiction of the so-called juvenile "super predator," now commonly recognized to be a veiled racial term used to frighten support for harsher treatment of juveniles of color. (34) The punitive shift in juvenile justice grew from highly impulsive legislative overhauls as sweeping changes were made to juvenile justice policies with hardly any debate or review. (35) No doubt, these punitive changes detracted from meaningful investment in a juvenile justice process that was data-driven or truly rehabilitative.

      Now resembling adult criminal...