Let the jury do the waive: how Apprendi v. New Jersey applies to juvenile transfer proceedings.

• Author: Vannella, Daniel M.

TABLE OF CONTENTS INTRODUCTION I. DEFINING THE JUVENILE COURT SYSTEM A. Purpose and Progress B. Challenging the Kangaroo Court C. McKeiver v. Pennsylvania II. THE MODERN APPROACH OF JUVENILE TRANSFER A. Setting the Ground Rules for a "Critically Important" Proceeding 1. Kent v. United States 2. Breed v. Jones B. Contemporary Statutes 1. Judicial Waiver 2. Legislative Waiver 3. Prosecutorial Waiver 4. Post-waiver Statutes III. THE ADVENT OF APPRENDI A. Making the Jury the Constitutional Fact-finder B. Interpreting Apprendi 1. Subsequent Cases 2. Courts that Have Not Applied Apprendi to Juvenile Transfers 3. An Exception IV. A PROPOSAL TO INVOKE THE JURY FOR (SOME) JUVENILE TRANSFERS A. Defending the Right to a Jury Trial 1. The "Effect" of Juvenile Transfer Is To Enhance Sentences 2. The Jury's Newfound Importance Outweighs Its Costs 3. Juries in Transfer Proceedings Do Not Impair the Unique Function of Juvenile Courts 4. Amenability Findings Need Not Be Eliminated B. Policy Arguments Favoring a Jury Requirement C. How the Jury Requirement Could Safely Apply 1. Judicial Waiver 2. Legislative Waiver 3. Prosecutorial Waiver 4. Post-waiver Statutes CONCLUSION INTRODUCTION

Beginning at the turn of the twentieth century, the states challenged the age-old conventions of youth and culpability by creating juvenile court systems. (1) The systems had been designed as a substitute for the discipline juveniles traditionally received from their parents: it mandated informality and individualized treatment, and emphasized rehabilitating young offenders rather than punishing them. (2) Despite these ideals, or perhaps because of them, the systems fell short of the mark as American society continued to change during the twentieth century. The supposed benefit of juvenile court adjudications--a lack of formality--increasingly became a burden, as juvenile court judges wielded nearly absolute discretion in the absence of any due process standards. (3)

Approximately sixty-five years after the first juvenile court was established, the U.S. Supreme Court held that certain due process rights must be afforded to juvenile offenders. (4) The Court was unwilling, however, to entirely disregard the "unique" nature (5) of juvenile court proceedings. In McKeiver v. Pennsylvania, it held that the right to a jury trial "is not a constitutional requirement" for juvenile proceedings. (6) McKeiver never has been overruled, despite widespread criticism of the plurality opinion. (7)

The unique nature of juvenile proceedings has also led to a practice the framers of the juvenile court system never contemplated: modern jurisdictions have allowed juveniles to be tried as adults. The process of sending an individual from juvenile court to "adult" criminal court, which hereinafter will be referred to as juvenile "waiver" or "transfer," reflects the contemporary societal belief that some children simply cannot benefit from the rehabilitative nature of juvenile courts. (8) For this reason, all states and the District of Columbia have established by statute at least one method for determining which juveniles should be tried in criminal court. (9)

Compared with criminal court proceedings, and even with juvenile adjudications, transfer proceedings provide the fewest procedural protections for juveniles. (10) An unfavorable result in the transfer proceeding potentially could send an individual away from juvenile court, where he at worst would receive a relatively lenient disposition, to a criminal court, where he could receive a significant sentence for the same offense. The standard for demonstrating the requisite findings for transfer, however, is not difficult to meet. (11) The Supreme Court has held that juvenile transfer proceedings are constitutionally permissible as long as they are completed before any adjudication of the offense (12) and meet basic due process standards. (13) However, it has never found the right to a jury to be a prerequisite.

Apprendi v. New Jersey (14) reflected the Court's dramatic change in perception concerning the jury's role in criminal proceedings. In Apprendi, the Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (15) With this holding, the Court specifically addressed the relative "novelty" of sentencing guidelines in criminal proceedings. (16) The actual scope of Apprendi, however, continues to be explored.

With its broad holding, Apprendi and its jury requirement could apply to juvenile transfer proceedings. A number of state and federal courts have examined this possibility, though the Supreme Court has not yet decided to rule on the issue. This Note will analyze Apprendi's applicability to juvenile transfer proceedings throughout the United States. Part I will review the establishment and early history of the juvenile court system, examine the Supreme Court opinions that tempered the system's abuses with certain procedural standards, and contrast those opinions with McKeiver, which actually denied a procedural right in juvenile adjudications. Part II will discuss the cases providing the framework for juvenile transfer proceedings, and then identify the types of transfer statutes since ratified.

Part III will explore the 2000 Apprendi decision. It will probe the opinion's meaning and briefly review subsequent cases interpreting its holding. Finally, it will analyze recent state and federal cases discussing Apprendi's application to juvenile transfer proceedings. After evaluating the rationale of these cases, this Note will conclude in Part IV that due process and the recently enhanced perception of the jury as fact-finder mandate that Apprendi's jury requirement apply, to a certain extent, to juvenile transfer proceedings. It will discuss how the requirement may be met without seriously disrupting the juvenile transfer process or destroying the ideals of juvenile courts that the Supreme Court has always attempted to preserve.

1. DEFINING THE JUVENILE COURT SYSTEM

   1. Purpose and Progress

      Juvenile justice has evolved dramatically over the past 150 years of American jurisprudence. Up until the late nineteenth century, American courts had followed the overly broad precedent set by English common law. (17) Children who were denied the excuse of youth automatically were tried in the same criminal court as adults; "there was no separate system of juvenile justice." (18)

      The nineteenth century marked America's transformation from a largely agrarian to a modern, industrial society. (19) With urbanization and immigration arose related social problems; the Progressive movement arose to counter these problems. (20) One group of Progressives took as their cause the reformation of the juvenile justice system. (21) In emphasizing individualized rehabilitation of offenders over mere punishment of crimes, they embraced a positivist view of criminology. (22) They believed that children, in particular, were "vulnerable, fragile, and dependent innocents" in need of protection and understanding. (23)

      The Progressives succeeded by the end of the nineteenth century in isolating juveniles from the traditional criminal justice system altogether. (24) They introduced "professional" juvenile court workers who supervised and treated children based on individual needs. (25) A juvenile court proceeding ideally would consist of "a fatherly judge [who] touched the heart and conscience of the erring youth by talking over his problems, [and] by paternal advice and admonition." (26) In reality, "[t]he juvenile court was free to apply whatever discipline a parent might be free to use, and it was given the same protections that parents had regarding outside interference." (27) Following the doctrine of patens patriae, the juvenile court system exercised broad discretion over the lives of children. (28)

      Illinois established America's first juvenile court in 1899. (29) Within twenty years, all states had established similar courts. (30) These courts isolated themselves entirely from the traditional criminal process:

      Reformers modified courtroom procedures to eliminate any implication of a criminal proceeding, adopted a euphemistic vocabulary, and endorsed a physically separate court building to avoid the stigma of adult prosecutions. Judges conducted confidential hearings, limited public access to court records, and found children to be delinquent rather than guilty of a crime. Proceedings focused on the child's background and welfare rather than the specifics of the crime. Reformers envisioned a social welfare system rather than a judicial one, and they excluded lawyers, juries, rules of evidence, and formal procedures from delinquency proceedings. (31) Sentencing practices also were open-ended, left almost entirely to the judge's discretion. (32) Indeed, the early juvenile courts had very little in common with the "adult" criminal courts, to the point that juvenile proceedings were labeled as mere civil dispositions instead of criminal trials. (33) Because of this lack of legal boundary, opponents of the Progressive movement began to call for reforms of their own. (34)

   2. Challenging the Kangaroo Court

      The 1967 decision In re Gault (35) reflected the U.S. Supreme Court's growing impatience with the juvenile court's limitless discretion. With its holding in this case, the Court "began transforming the juvenile court into a very different institution than the Progressives contemplated." (36) Arizona police had taken the fifteen-year-old petitioner into custody on the basis of a neighbor's complaint that he had made a lewd phone call, but they failed to provide notice of the arrest to petitioner's parents. (37) After an informal preliminary hearing, in which no witnesses were sworn in, and a second hearing six days later, the judge concluded that petitioner was a juvenile...