Justice for Children: The Right to Counsel and the Juvenile Courts.

• Author: Stahl, Marc B.

By Barry C Feld. Northeastern University Press 1993. Pp.329.

1. INTRODUCTION: PROCEDURAL FORMALITY AND THE NATURE OF THE JUVENILE COURT

   On June 8, 1964, fifteen-year-old Gerald Francis Gault was arrested after police in Gila County, Arizona, received a complaint regarding an obscene phone call.(1) The next day, proceedings were initiated against Gerald in juvenile court.(2) During these proceedings, Gerald was unrepresented by counsel. The State of Arizona never provided Gerald or his parents with any statement describing the factual allegations against him or the statute he was charged with violating.(3) The complaining witness never appeared before the judge, despite requests by Gerald's mother for an in-court identification to clear her son of any wrongdoing.(4) No witnesses were sworn. No record was kept of the testimony.(5) At the conclusion of the proceedings, Gerald was committed to the State Industrial School "for the period of his minority [that is, until 21], unless sooner discharged by due process of law."(6)

   The Supreme Court reversed the finding of delinquency, declaring that "[u]nder our Constitution, the condition of being a boy does not justify a kangaroo court."(7) The Court held that juveniles are entitled to notice of charges,(8) assistance of counsel,(9) confrontation of witnesses,(10) and the privilege against self-incrimination(11) at proceedings to determine whether a minor has violated the law.

   The Gault decision rang in a new era for the juvenile court. While a number of jurisdictions had previously adopted procedural protections for juveniles accused of committing crimes, the Supreme Court imposed such protections as a constitutional minimum.(12) Shortly after Gault, the Supreme Court also held that criminal conduct must be proven beyond a reasonable doubt in juvenile delinquency proceedings.(13) The infusion of formal procedures was viewed by some observers as a threat to the character of the juvenile court.(14)

   In the late nineteenth and early twentieth centuries, reformers were appalled by the way the criminal justice system treated children--giving young offenders harsh sentences and having them serve their punishment in penal institutions surrounded by adult criminals. The juvenile court system developed out of the progressive movement's vision of children as inherently innocent beings who could be molded into productive citizens.

   The progressives established a framework entirely separate from adult criminal courts. Minors are adjudicated delinquent, not convicted of crimes. The juvenile judge holds a dispositional hearing, not a sentencing hearing. The juvenile court's concern at the dispositional hearing is not punishment, but the best interests of the minor. The traditional punitive concerns of retribution and deterrence give way to treatment and rehabilitation.(15) Judge Julian Mack explained the purposes of the juvenile court in 1909:

   Why is it not the duty of the state, instead of asking merely whether a

   boy or girl has committed a specific offense, to find out what he is,

   physically, mentally, morally, and then if it learns that he is treading

   the path that leads to criminality, to take him in charge, not so much to

   punish as to reform, not to degrade but to uplift, not to crush but to

   develop, not to make him a criminal but a worthy citizen.(16) Thus, the juvenile court judge evaluates the individual offender's needs and fashions a program to improve the minor. Experts in child psychology and social work advise the judge of what is needed to reform the child and the judge implements the appropriate proposals through a dispositional order.(17)

   Many procedural rights guaranteed to adults in criminal cases have been deemed inappropriate in the juvenile context. juvenile court judges need flexibility to determine the most appropriate disposition for minors.(18) In rejecting the right to jury trials for juveniles, for example, the Supreme Court noted 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."(19) As envisioned by its creators, the juvenile court should not be encumbered by procedures that allow needy children to avoid supervision and control merely because of legal technicalities or juror nullification. Furthermore, concepts of proportionality could frustrate the efforts to help a child in need. The founders of the juvenile court believed that society has a moral obligation to impose a severe disposition if a child would benefit from such state involvement, regardless of whether the conduct that brought the child to the attention of the authorities is a heinous felony or a petty offense. The question is not what the child deserves, but what is best for the child.

   Unfortunately, flexibility permits abuses. After reviewing the facts in Gault, the Supreme Court quoted Dean Roscoe Pound's warning that "the powers of the Star Chamber were a trifle in comparison with those of our juvenile courts."(20) Most apparent, flexibility can lead to excesses in the name of rehabilitation. Inevitably, at least some of the determinations made by unrestrained juvenile court judges will be inappropriate for and unfair to the children they are intended to help. Furthermore, many juvenile court judges are not convinced by the progressive movement's vision of the inherent goodness of all children. Thus, individual judges sometimes use the wide powers granted in the name of rehabilitation to mete out punishment.(21)

   When judges do seek rehabilitative programs, state correctional systems often frustrate the judiciary's remedial efforts. Many correctional facilities for juveniles are harsh institutions that serve to warehouse offenders rather than rehabilitate them.(22) The lack of social services is compounded by the mistreatment of children. Reports of physical and sexual violence by staff members and fellow inmates are widespread.(23) Given the reality of what happens to many juveniles during their period of "rehabilitation," the Court in Gault believed that some procedural protections are necessary.(24)

   The Supreme Court was careful to caution, however, that procedural protections would not require the elimination of a separate juvenile court system focused on rehabilitation. The Court stated:

   While due process requirements will, in some instances, introduce a

   degree of order and regularity to juvenile Court proceedings to determine

   delinquency, and in contested cases will introduce some elements

   of the adversary system, nothing will require that the

   conception of the kindly juvenile judge be replaced by its opposite,

   nor do we here rule upon the question whether ordinary due process

   requirements must be observed with respect to hearings to determine

   the disposition of the delinquent child.(25) Thus, the fundamental character of the juvenile court was to remain intact. Although minors would have some procedural protections at the guilt-determining stage of the proceedings, the juvenile court would retain its characteristically informal dispositional hearing when deciding what is in the best interests of the child.

   In Justice for Children: The Right to Counsel and the Juvenile Courts,(26) Barry C. Feld questions whether the Supreme Court's expectations have been realized. Feld argues that a tension exists between the progressive movement's ideal of a flexible juvenile court imposing social controls on children in need of supervision and the due process model of a juvenile court operating within the constitutional framework of criminal courts. The book evaluates the conflict between the traditional vision of the juvenile court and the procedural requirements now constitutionally imposed upon it and concludes that the procedural protections now guaranteed to children accused of crimes have led to a harsher, more punitive juvenile court.

   Feld uses representation by counsel as a proxy for the overall level of formality in individual juvenile court systems. The presence of counsel makes it more likely that a respondent will invoke other procedural rights. A defense attorney, for example, presumably will file motions to quash illegal arrests and suppress suggestive identifications and involuntary statements when potential Fourth and Fourteenth Amendment violations exist. Defense attorneys will also typically advise respondents of their right to remain silent. Additionally, professional attorneys should be more adept at questioning state witnesses and presenting defense arguments than minors or their parents. Finally, a defense attorney is likely to increase the adversarial nature of the proceedings merely by being present as a counter to the probation officer or prosecuting attorney.(27)

   As a practical matter, the measurement of other procedural rights would be difficult. Nobody can accurately count the number of cases in which minors would be compelled to testify or in which cross-examination of witnesses would not take place absent the Supreme Court's pronouncements in Gault. Researchers would face a significant challenge in attempting to count the number of convictions that would occur under a preponderance of the evidence standard as opposed to the reasonable doubt standard required under Winship. The right to counsel is one of the few proxies by which to measure the broader procedural approach of a court system.

   Feld utilizes data from several jurisdictions, rather than the anecdotal observations that often permeate discussions of juvenile justice.(28) First, he evaluates information collected in 1984 by the California Bureau of Criminal Statistics and Special Services, the Minnesota Supreme Court's Judicial Information System, the Nebraska Commission on Law Enforcement and Criminal Justice, the New York Office of Court Administration, the North Dakota Office of State...