The Court-ordered Predisposition Evaluation Under Washington's Juvenile Justice Act: a Violation of the Privilege Against Self-incrimination?

• Jurisdiction: Washington,United States
• Citation: Vol. 10 No. 01
• Publication year: 1986

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 10, No. 1FALL 1986

COMMENT

The Court-Ordered Predisposition Evaluation Under Washington's Juvenile Justice Act: A Violation of the Privilege Against Self-incrimination?

Judith H. Ramseyer

I. Introduction

Juvenile offenders in Washington are sentenced under a presumptive sentencing model that is designed to hold juveniles accountable for crimes they have committed.(fn1) A calculus using the offender's age, crime, and criminal history determines the appropriate sanction.(fn2) Often offenders are required by the court to undergo a psychological evaluation prior to sentencing. When this occurs, information the offender reveals to the court-appointed specialist during the evaluation is added to the sentencing decision. A longer sentence typically results.(fn3) This Comment argues that when the juvenile offender is ordered to submit to a predisposition evaluation, the privilege against self-incrimination should protect the offender from unknowingly supplying the state with information that may be used to enhance his sentence beyond the standard range.(fn4)

The privilege against self-incrimination is regarded as an essential mainstay of our adversary system.(fn5) Secured by the fifth amendment of the federal constitution(fn6) and made applicable to the states through the due process clause of the fourteenth amendment,(fn7) the privilege against self-incrimination protects an individual's right to a "private enclave where he may lead a private life. That right is the hallmark of our democracy."(fn8) The precise boundaries of the privilege, however, are not so easily defined.

The United States Supreme Court has generally accorded the privilege against self-mcrimination a liberal construction.(fn9) The Court has consistently held that the privilege can be claimed in any proceeding, criminal or civil, administrative or judicial, investigatory or adjudicatory, in which disclosure could lead to evidence that might be used in a criminal prosecution.(fn10) In its more expansive opinions, the Court has stated that the privilege against self-incrimination has a comprehensive scope in all settings in which an individual's freedom of action is significantly curtailed,(fn11) and that the privilege can be claimed in any proceeding in which disclosure could be used to deprive a person of his liberty.(fn12) In practice, deprivation of liberty is not dispositive in allowing the fifth amendment's protection.(fn13)

What is dispositive is the exposure to criminal punishment that the compelled disclosure invites. In its most recent decision construing the privilege against self-incrimination, the Court delineated the boundary between criminal (i.e., punitive) and noncriminal proceedings.(fn14) The fifth amendment privilege against self-incrimination is reserved for criminal proceedings, although a " 'civil' label-of-convenience"(fn15) will not turn an essentially criminal proceeding into one beyond the reach of the fifth amendment's protection.(fn16)

In addition, the full scope of the privilege against self-incrimination during the sentencing phase of a criminal proceeding remains undefined. The prevalent sentencing philosophy is one of tailoring the sentence to fit the personality and circumstances of the offender as well as the crime.(fn17) This philosophy has fostered the widely accepted belief that the sentencing judge must have broad discretion to inquire into all aspects of an offender's life.(fn18) Because the judge's discretion is to be exercised for rehabilitative and protective, not punitive, purposes,(fn19) sentencing has acquired the character of an administrative rather than a judicial proceeding.(fn20) The fundamental sentencing principle is that "a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come."(fn21) Even with this rehabilitative rationale for sentencing, the privilege against self-incrimination has been attached to sentencing proceedings in some circumstances.(fn22)

When the principles enunciated in these Supreme Court decisions are applied to the juvenile court in Washington, the distinctions between civil and criminal, rehabilitative and punitive collide. Technically civil proceedings, juvenile court adjudications seek to prove that a juvenile committed a criminal act.(fn23) Since at least 1967, juvenile court adjudications have been recognized as comparable in seriousness to felony prosecutions.(fn24) And while the juvenile court movement grew from a desire to provide rehabilitative services,(fn25) the current trend in juvenile justice is to punish the youthful offender for crimes committed.(fn26) The traditional labels of "civil" and "criminal," "rehabilitative" and "punitive," have taken on new meaning in the juvenile court context.The essence of th[e] basic constitutional principle [embodied in the privilege against self-incriniination] is the requirement that the state which proposes to convict and punish an individual produce the evidence against him by the independent labor of its own officers, not by the simple, cruel expedient of forcing it from his own lips.(fn27)

This Comment will analyze the significance of this principle by first looking at the purposes of the Juvenile Justice Act; second, by examining the status of the privilege against self-incrimination during sentencing; and third, by applying the values protected by the privilege to the use of predisposition psychological evaluations in Washington juvenile courts.

II. Juvenile Court

Prior to the inception of the juvenile court movement in the late 1800s, juvenile offenders over age seven were treated in the same way as adult criminals.(fn28) Social reform was initiated to create an informal juvenile court proceeding that would enable the state to intervene in a child's best interest.(fn29) Justice Fortas summarized the philosophy of this social reform when he wrote for the majority in In re Gault:

The early reformers were appalled by adult procedures and penalties, and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals. They were profoundly convinced that society's duty to the child could not be confined by the concept of justice alone. They believed that society's role was not to ascertain whether the child was 'guilty' or 'innocent,' but 'What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career.' The child-essentially good, as they saw it-was to be made 'to feel that he is the object of [the state's] care and solicitude,' not that he was under arrest or on trial. The rules of criminal procedure were therefore altogether inapplicable. The apparent rigidities, technicalities, and harshness which they observed in both substantive and criminal law were therefore to be discarded. The idea of crime and punishment was to be abandoned. The child was to be 'treated' and 'rehabilitated' and the procedures, from apprehension through institutionalization, were to be 'clinical' rather than punitive.(fn30)

To effectuate the laudable objective of compassionate, individualized treatment, states accorded the juvenile court unbridled discretion. Juveniles had no procedural rights.(fn31)

Illinois first codified this new juvenile court philosophy and structure in 1899, and the model soon spread to other states.(fn32) In 1913 Washington adopted a broad statute that gave the court authority to intervene in the lives of delinquent or dependent youth under the age of eighteen.(fn33) In Washington as in other states, the legislature designed the juvenile code to allow the court to diagnose social ills and deliver social services for the sake of the child's best interest. As a civil proceeding designed expressly for children, this individualized attention was accomplished without the stigma of criminality or the impediment of procedural rights for the youth.

The 1967 landmark decision of In re Gault(fn34) dramatically changed the character of juvenile court proceedings. Gerald Gault, age fifteen, had been committed to an Arizona reform school for up to six years for making a lewd phone call. This crime, if committed by an adult, carried a maximum penalty of a fine from five to fifty dollars, or up to two months in jail. The Court reversed Gault's disposition and imposed on juvenile court proceedings the due process requirements of timely notice, the right to counsel, the right to confront and cross-examine witnesses, and the privilege against self-incrimination. The Court stated:[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone. . . . The absence of substantive standards has not necessarily meant that children receive careful, compassionate, individual treatment. . . . Failure to observe the fundamental requirements of due process has resulted in instances, which might have been avoided, of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy. Due process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise.(fn35)

The Gault opinion...