A Parens Patriae Figure or Impartial Fact Finder: Policy Questions and Conflicts for the Juvenile Court Judge

• Author: Joseph B. Sanborn
• DOI: 10.1177/0887403401012004004
• Published date: 01 December 2001
• Date: 01 December 2001
• Subject Matter: Journal Article

CRIMINALJUSTICEPOLICYREVIEW/December 2001Sanborn/PARENSPATRIAEFIGURE

AParens Patriae Figure or

Impartial Fact Finder:

Policy Questions and Conflicts

for the Juvenile Court Judge

Joseph B. Sanborn, Jr.

University of Central Florida

For several decades, juvenile courts functioned like clinics. Judges assigned there

were instructed to assume a variety of roles: jurist, psychologist,counselor, sociolo-

gist, and parent. The In re Gault decision in 1967 grantedjuvenile defendants several

constitutional rights that transformed juvenile courts into criminal court–like opera-

tions. Juvenile court judges have not been told whether they should continue to be

paternal or emulate their counterparts in adult court; researchhas not addressed this

subject. In this study, 100 juvenile court workers(judges, prosecutors, defense attor-

neys, probation officers) from three juvenile courts (urban, suburban, rural) were

interviewed to ascertain how judges operatein juvenile court and what these workers

perceive to be the properrole for the judge. The data show that most workers believe

that the role of the juvenile court judge is and should be unique.

THE PROBLEM IN PERSPECTIVE

The Traditionally Different Role of a Juvenile Court Judge

The American system of adversarial criminal justice expects its judges to

be neutral and impartial, especially at the trial stage. The judge’s obligation

to perform duties impartially is cited in Canon 3 of the Model Code of Judi-

cial Conduct (American Bar Association [ABA], 1999, p. 8). Impartiality

has been interpreted by experts to mean that judges should be passive,disin-

terested, or disengaged when they decide cases (Leubsdorf, 1987; Marcus,

1992; Shaman, 1996; Waynick, 1991).

For more than six decades after juvenile courts emerged in 1899, the

expectations of judges who handled delinquency cases there were quite dif-

ferent from those of criminal court judges. Even in matters of crime,

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© 2001 Sage Publications

juvenile courts were designed to operate more like clinics than courts of law,

pursuing the young offender’s rehabilitation rather than punishment.

Instead of an adversarial process of fact-finding, juvenile courts employed

more of an inquisitorial approach, in which all parties—including the judge—

were actively involved in finding out how to help the youthful offender

(Fox, 1970; Melli, 1996). Rather than serving as neutral and impartial fact

finders, judges were instructed to act very interested and engaged and to

behave like benevolentparents, a parens patriae figure who was concerned

primarily with the best interests of the child (Dunham, 1958; Lou, 1927;

Mack, 1909). Although there is reason to question how benevolent and

parental juvenile court judges have everbeen (In re Gault, 1967), the paren-

tal expectations of these judges remained largely unchanged and unchal-

lenged until 1967.

In that year, the United States Supreme Court, in In re Gault, not only

extended four trial-related constitutional rights to juvenile defendants fac-

ing delinquent charges but also objected to what had transpired when judges

acted like parents at the adjudicatory hearing or trial. The implication of

Gault was that judges legitimately could act like parental figures only dur-

ing the pretrial and postadjudication stages of the juvenile court’soperation

(Garff, 1973). Three years later,in In re Winship (1970), the Supreme Court

further supported its suggestion that trial judges in juvenile court are sup-

posed to be impartial in fact-finding, if not to emulate criminal court judges,

by raising the burden of proof needed to adjudicate or convict a delinquent

youth from a preponderance of evidence to beyond a reasonable doubt.

Wordslike implication and suggestion must be used in this context because

the Supreme Court never clearly delineated many items, including its

expectations regarding the role of the judge at the adjudicatory level in a

delinquency matter.In the three decades since the Gault and Winship cases,

the Supreme Court has not engaged in any further constitutional renovation

of the delinquency aspect of juvenile court procedure nor has it given any

further clarification as to what judges are expected to do in these cases in

juvenile court.

Current Assumptions of the Juvenile Court Judge’s Role

Despite the Supreme Court’s lack of clarity and the absence of research,

the ruling assumption of the day is that in delinquency cases the role of juve-

nile court judges at the adjudicatory hearing parallels that of their criminal

court counterparts. Juvenile justice textbooks simply assert this proposition

as a given (Bartollas & Miller, 2001; Champion, 1998; Clement, 1997;

312 CRIMINAL JUSTICE POLICY REVIEW / December 2001