A Child is a Child, Except Under Ohio Law: A Discretionary Review of Mandatory Bindovers

• Author: Briana Morris
• Position: J.D. Candidate, Capital University Law School, 2018
• Pages: 149-188

A CHILD IS A CHILD, EXCEPT UNDER OHIO LAW: A

DISCRETIONARY REVIEW OF MANDATORY BINDOVERS

BRIANA MORRIS*

I. INTRODUCTION

It is often believed that every good story has an equally good

beginning. Something that draws the reader in from the beginning and

holds their attention; something that leaves them wanting more. Now,

while this may be the case, what is not believed is the fact that every good

story has to have a happy or even worthy ending for the main character.

As readers, we want the main character to prevail, but that is not always

what the author intends.

Every case in the court system has a beginning and an ending. Every

plaintiff and defendant have a story to tell; their own version of the facts.

This is no different than the case that I will present to you in this Note.

This defendant, which will be my primary focus, has a story to tell, just

like many other juveniles in his position. But, like many others, his story

did not have a happy ending. This defendant was a first-time offender.

The court only looked at two factors in his case before determining that he

should be tried in adult court: his age and his crime.

1

He now faces up to

twenty years in adult prison for a crime he committed while he was

sixteen.

2

It raises a question of whether the juvenile justice system, as it

has evolved throughout the years, in Ohio and many other states are failing

today’s youth. Is the sentencing scheme the justice system offers

beneficial or harmful to these children? Are mandatory bindovers, as

statutorily prescribed, better than discretionary bindovers for the child and

society? Is this transfer from the juvenile system to adult court even

constitutional? Is prison time really better for a child than some form of a

rehabilitative program?

Copyright © 2019, Briana Morris.

* J.D. Candidate, Capital University Law School, 2018; B.A., Ashland University,

2016. I would like to thank my parents for their love, encouragement, and support not only

while writing this Note, but all through law school and life. A major thank you goes to my

mom for reading and editing numerous drafts of this f or me. Next, I would like to thank

Judge Elizabeth Gill and her staff attorney, Josh Werning, for piquing my interest in this

topic and for all of their invaluable guidance throughout this endeavor. Lastly, I would also

like to thank Professor Jack Guttenberg for being my faculty advisor.

1

State v. Aalim (Aalim I), 2016-Ohio-8278, ¶¶ 2–3, 83 N.E.3d 862, 864.

2

State v. Aalim ( Aalim II), 2017-Ohio-2956, ¶ 60, 83 N.E.3d 883, 901–02 (O’Connor,

C.J., dissenting).

640 CAPITAL UNIVERSITY LAW REVIEW [47:639

To understand where we are now in the juvenile justice system, I

believe that it is important to recognize how the system has evolved

through the years. W ith this knowledge, it will be easier to understand

where the juvenile system is today with regard to punishments for

juveniles. It will also help to better comprehend where policy makers and

reformers are coming from when they speak about a need for change or

why some believe that the system is working perfectly for juveniles and

ultimately society as a whole.

II. HISTORY OF THE JUVENILE JUSTICE SYSTEM

A. The Progressive Juvenile Court

The progressive reformers of the nineteenth century that created the

juvenile court system did so with an understanding that there was an

ideological and legal differentiation between youths and adults.

3

These

reformers believed that “[b]ecause children lacked adult reason or legal

capacity, their parents and the state had to educate them and prepare them

for citizenship.”

4

The goal for the juvenile justice system at this time was

based on a modern and scientific conception of crime control.

5

This

“positivist criminology” idea sought to identify the causes of criminality

and treat it, rather than to punish the offenders.

6

Instead of punishing

juveniles, the court system took a diversionary and interventionist

rationale, which meant that the court wanted to provide a rehabilitative

alternative to criminal punishment and enforce a newer conception of

childhood.

7

This system took into account the changing times of the country, in

which there was a shift from agricultural, household-based economies to

an industrial society.

8

Progressives “believed that children were more

malleable than adults and[, therefore,] would internalize [the] norms and

expectations” of the changing society.

9

The Progressives’ fundamental

belief and trust in the power of the state to do good,

10

led the state to create

3

BARRY C. FELD, THE EVOLUTION OF THE JUVENILE COURT: RACE, POLITICS, AND T HE

CRIMINALIZIN G OF JUVENILE JUSTICE 19 (Franklin E. Zimring & David S. Tanenhaus, eds.,

2017).

4

Id.

5

Id.

6

Id.

7

Id.

8

Id. at 21.

9

Id. at 23.

10

Id.

2019] A CHILD IS A CHILD, EXCEPT UNDER OHIO LAW 641

reformatories and separate institutions to help youths.

11

One goal, among

many, of the juvenile system was to “divert youths from the criminal

justice system and to substitute the state as parens patriae,”

12

which means

super-parent.

13

Juvenile offenders were viewed as innocent, misguided

children, and many reformers attributed their delinquency to social

conditions and inadequate parenting.

14

The delinquent youths who

appeared before judges during this time were seen as children in need, so

the court would focus on that instead of what brought them before the

court.

15

This afforded the judge great discretion in determining the

sentence for the child.

16

Attorneys were seen as unnecessary, and often the

juvenile did not have a “right to know the charges brought against him, the

right to trial by jury, [or] the right to confront one’s accused.”

17

Therefore,

the nineteenth century juvenile court was seen more as a rehabilitative

institution for juveniles than it was viewed as a way in which juveniles

would be punished for their wrongdoing.

18

B. The Due Process Revolution

The rehabilitative approach to the juvenile justice system continued

into the late 1960s.

19

In 1967, one particular case called this method into

question.

20

In the case, In Re Gault, the Supreme Court of the United

States reviewed the states’ juvenile court procedures, and upon finding that

they were constitutionally deficient determined that they needed to be

improved.

21

Gerald Gault, who was fifteen years old, was taken into

custody without notification to his parents after making “lewd and

indecent” remarks on the telephone to his neighbor.

22

The judge held an

informal hearing where he stated that Gault needed care and custody

before sentencing him to the State Industrial School a week later.

23

Gault’s

sentence was to be “for the period of his minority [that is, until twenty-

11

Id. at 26–27.

12

Id. at 30.

13

Id. at 19.

14

Id. at 30.

15

Id. at 33.

16

Id.

17

Id. at 33–34.

18

Id.

19

Id. at 58–59.

20

Id. at 59.

21

Id.

22

In re Gault, 387 U.S. 1, 4 (1967).

23

Id. at 5–8.