Punitive Juvenile Justice and Public Trials by Jury: Sixth Amendment Applications in a Post-mckeiver World

• Publication year: 2021

91 Nebraska L. Rev. 1. Punitive Juvenile Justice and Public Trials by Jury: Sixth Amendment Applications in a Post-McKeiver World

Punitive Juvenile Justice and Public Trials by Jury: Sixth Amendment Applications in a Post-McKeiver World

Martin R. Gardner(fn*)

TABLE OF CONTENTS

I. Introduction..........................................2

II. Juvenile Justice: From Rehabilitation to Punishment ..6
A. The Rehabilitative Premise of Original Juvenile Justice............................................7
B. Punitive vs. Rehabilitative Dispositions: The Conceptual Distinction............................13
1. Punishment................................... 13
2. Rehabilitation ................................. 17
3. Punishment v. Rehabilitation: Mutually Exclusive Dispositions?........................ 18
C. The Emergence of Punitive Juvenile Justice ....... 22

III. Sixth Amendment Public Trials by Jury and Juvenile Courts................................................ 25
A. Current Constitutional Protections in Delinquency Adjudications ..................................... 25
1. McKeiver...................................... 30
2. The Supreme Court and Punitive Juvenile Justice ........................................33
B. Public Trials in Criminal Court....................34

C. Jury Trials in Criminal Court .....................36
D. A Sixth Amendment Right to a Public Trial by Jury Trial in Punitive Juvenile Justice..................39
1. Jury Trials in Juvenile Court ..................40
a. Policy Considerations ...................... 40

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b. Waiver of Jury Trial Right: A Juvenile Right to a Bench Trial? ..........................42
2. Public Trials in Juvenile Courts................46
a. Policy Considerations......................46
b. Waiver of Public Trial Rights: A Juvenile Right to a Closed Hearing?.................47
3. Summary......................................49

IV. Identifying Punitive Dispositions......................50
A. Failing to Effectively Analyze the Issue............52
1. Begging the Question..........................52
2. Confusing the Concepts of Punishment and Rehabilitation: Conflating Punishment into Rehabilitation .................................54
3. Defining Punishment Under the "Impact Theory": Conflating Rehabilitation into Punishment ...................................56
B. Effective Analysis: The Rare Exception ............60
C. The Ongoing Viability of McKeiver.................62
V. Abolish Juvenile Courts? ..............................63
A. The Argument for Abolition .......................64
B. The "Rehabilitate Rehabilitation" Argument Against Abolition ..........................................65
C. Punitive Juvenile Justice as a Reason for Retaining Separate Juvenile and Criminal Courts ............66

VI. Conclusion ............................................70

I. INTRODUCTION

It is well known that a fundamental transformation has occurred within the juvenile court movement, away from its original rehabilitative focus and towards a punitive orientation.(fn1) This development has raised a variety of constitutional issues, some of which the Supreme Court has already addressed.(fn2) The Court has not, however, directly focused on the legal implications of administering the punitive sanction in the juvenile system, but rather has attended only to the system's inability to deliver meaningful rehabilitation. Thus, in its first

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significant consideration of the workings of the juvenile system, the Court expressed serious doubt about whether young people subjected to juvenile court jurisdiction in fact received "the solicitous care and regenerative treatment postulated for children."(fn3) This disillusionment continued in a line of cases, beginning with In re Gault,(fn4) recognizing that the system imposed harsh dispositions which offered little meaningful rehabilitation. As a consequence, the Court required as a matter of due process that most of the procedural protections constitutionally required in criminal cases, theretofore foreign to juvenile courts,(fn5) be applied to delinquency adjudications(fn6) within the juvenile justice system.(fn7) However, when it came to jury trials, the Court made a glaring exception in McKeiver v. Pennsylvania, holding that young people charged with acts of delinquency do not enjoy a due process right to a trial by jury.(fn8) In contrast to its previous disparagement of the rehabilitative potential of the juvenile court movement, the McK-eiver Court expressed faith that juvenile courts could indeed be functioning components of an effective rehabilitative system in which juries were not constitutionally required and might actually be harmful to the system's rehabilitative mission if employed.(fn9)

Despite McKeiver's optimism, the majority of the Court's opinions clearly reflect disenchantment with the rehabilitative effectiveness of

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the juvenile system. This sentiment is shared by policy makers throughout the nation who have increasingly embraced punishment of juvenile offenders.(fn10) Policy merits aside, however, imposing punitive sanctions raises constitutional issues-yet to be decided by the Court-unique and distinct from those attending rehabilitative dispositions.(fn11) Specifically, punishing juvenile offenders requires recognition of the Sixth Amendment right to public trial by jury, whatever McKeiver's due process validity and assumptions of a rehabilitative model. Yet, despite widespread criticism from commentators,(fn12) the

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overwhelming majority of courts continue to rely on McKeiver as the basis for unjustifiably denying jury trials to delinquents facing punitive sanctions, which would trigger jury trial rights in adult criminal court.(fn13)

This Article argues that the continued homage to McKeiver in an era of punitive juvenile justice is the misguided result of judicial inattention to the distinction between punitive and rehabilitative dispositions. In Part II, I clarify this distinction and demonstrate why understanding it is essential to a sound analysis of whether jury determinations and public proceedings are constitutionally required in delinquency adjudications. I show that the concepts of rehabilitation and punishment are distinct and, for purposes of constitutional analysis, mutually exclusive. From this discussion I derive a conceptual framework, which I apply in Part Iv to analyze several cases. These conceptual considerations are framed by a sketch of the movement within juvenile justice from a rehabilitative to a punitive model. In Part III, I examine the Supreme Court's delinquency cases, paying particular attention to McKeiver. I then consider the Court's public

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trial and jury trial case law and argue that proceedings must be open to the public when alleged offenders face punishment, and jury trials must be afforded when they face substantial punitive incarceration. I show that, contrary to McKeiver, requiring open jury determinations in delinquency adjudications will not detract from the goals of such proceedings but will actually effectuate them. I conclude Part III by arguing that alleged delinquents, unlike adult defendants in the criminal system, are constitutionally entitled to choose a jury or bench trial and an open or closed proceeding in which their identities are kept confidential.

In Part IV, I examine a sample of lower court cases considering whether jury trials are required in the new punitive juvenile justice. I demonstrate that the courts, with very few exceptions, make three kinds of mistakes in assessing jury trial rights in juvenile cases. Some courts simply beg the constitutional question by assuming without analysis that a given disposition is nonpunitive. Others apply overly broad definitions of rehabilitation, thereby conflating the concept of punishment into that of rehabilitation. A third group makes the opposite mistake by applying the "impact theory," an overly broad definition of punishment, which conflates the concept of rehabilitation and other coercive sanctions into that of punishment. After illustrating these mistakes with examples from the case law, I contrast the faulty decisions with a rare example of a soundly analyzed case as a recommended model for clarification of the muddled situation created by the lower courts.

Finally, in Part V, I briefly address the argument of some leading commentators that the complete criminalization of juvenile courts- by the recognition of public trial and jury trial rights-makes the existence of a juvenile court system separate from the criminal justice system unnecessary and unwise. Rather than merging it into the criminal system, I argue to the contrary that the emergence of punitive juvenile justice with full procedural protections actually provides a new rationale for retaining a separate juvenile court system. I take no position on whether juvenile courts should punish delinquents, but focus only on the Sixth Amendment implications that follow when punishment occurs.

II. JUVENILE JUSTICE: FROM REHABILITATION TO PUNISHMENT

In this Part, I will describe the original rehabilitative orientation of the juvenile justice movement as a prelude to discussing the increasing emergence of the punitive sanction currently utilized in many juvenile systems around the nation. To better understand this transformation of juvenile justice, I will...