UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 19, No. 3SPRING 1996
The Denial of a State Constitutional Right to Bail in Juvenile Proceedings: The Need for Reassessment in Washington State
Kathleen A. Baldi(fn*)
I. Introduction
Article I, section 20 of the Washington Constitution states that "[a]ll persons charged with crimes shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great."(fn1) Despite seemingly unequivocal language that this constitutional provision is applicable to "all persons," the Washington Supreme Court, in Estes v. Hopp,(fn2) declared that juveniles do not have a constitutional right to bail.(fn3) The Estes court engaged in little constitutional analysis, but instead, reasoned that juvenile proceedings are civil in nature and that article 1, section 20 applies only in criminal proceedings.(fn4)
Central to the Estes court's determination was the parens patriae system of juvenile justice(fn5) that existed in Washington State at the time of the decision. The parens patriae system emphasizes rehabilitation rather than punishment and gives judges broad discretion to act in the best interests of the child. Under this system, juveniles are protected and sheltered by the state, which theoretically molds them into responsible citizens.(fn6) When the Estes decision was handed down in 1968, Washington, like every other state, had clearly embraced the parens patriae concept of juvenile justice.
However, in the twenty-seven years since Estes, Washington's juvenile justice system has undergone a radical transformation. In 1977, Washington adopted a system based primarily on punishment and accountability in contrast to the prior system based on rehabilitation.(fn7) This Comment argues that because Washington has essentially rejected the parens patriae approach to juvenile justice in favor of a punitive approach, juveniles should be given the same right to bail as their adult counterparts.
Section II of this Comment provides an overview of the historical development of juvenile justice in the United States. Section III examines the Washington Supreme Court's interpretation of article I, section 20 in Estes v. Hopp and examines cases from other states in which juveniles' constitutional right to bail has been assessed. This examination is followed in Section IV by a discussion of the transformation that has occurred in Washington since the Estes decision. Finally, Section V explains why, as Washington's juvenile justice system shifts its focus from rehabilitation toward punishment, juveniles should have the same right to bail as adult criminal defendants.
II. The History of Juvenile Justice
A. The Development of the Juvenile Courts and the Institutionalization of the Parens Patriae Approach to Juvenile Justice
In criminal proceedings at common law, no distinction was made between an adult and a child who had reached the age of criminal responsibility.(fn8) Punishment, not rehabilitation, was the underlying philosophy, as juveniles were often given harsh sentences and confined in adult institutions.(fn9) However, beginning in 1787, religious groups and private welfare organizations attempted to reform the appalling conditions faced by both juvenile and adult prisoners. These groups began to provide social services for the growing number of unsupervised and troubled youth flooding into industrialized, urban areas.(fn10) As the influence of these private welfare organizations grew, states began to regulate and control the privately funded programs and facilities, thereby bringing an increasing number of delinquent and dependent children under state influence and control.(fn11)
By the late nineteenth century, the social reform movement focused on the complete removal of children from adult jails and lockups.(fn12) Guiding these reform efforts was the belief that children are not responsible for their actions, and therefore, they should not receive the punitive treatment accorded adult prisoners.(fn13) Because the reformers believed that children were redeemable, they sought to insulate children from the brutalities of adult prison life and stem the tide of future criminal activity.(fn14)
These early reform efforts led to the creation of the first juvenile court in 1899(fn15) and the institutionalization of the parens patriae(fn16) doctrine as a justification for state control over delinquent youths.(fn17) The parens patriae approach to juvenile justice focuses on the welfare of the child by creating a benevolent and protective relationship between the state and the delinquent child.(fn18) Parens patriae juvenile courts reject the formal, adversarial processes of adult criminal proceedings in favor of informal and flexible processes in which judges have broad discretion to act in the "best interests of the child."(fn19) Rehabilitation, not punishment, is the primary goal. By 1917, all but three states had instituted a separate juvenile court.(fn20) Today, the separate system of juvenile justice is firmly entrenched in all fifty states and the District of Columbia.(fn21)
B. The Second Call for Juvenile Justice Reform: The Dawning of the Due Process Model
Despite the benevolent philosophy underlying the creation of separate juvenile courts, by the 1960s many began to question whether the system was truly operating in the best interests of the child.(fn22) Parents of juvenile offenders and members of the public became increasingly concerned about the broad discretion given to judges under the parens patriae system.(fn23) The absence of consistent guidelines inherent in the case-by-case approach to juvenile adjudication resulted in "frequent and obvious abuses of judicial discretion."(fn24) In addition, because juvenile proceedings were deemed civil, not criminal, in nature, children were denied certain basic constitutional protections enjoyed by adult criminal defendants.(fn25)
In 1960, the Director of Detention Services for the National Probation and Parole Association noted that after sixty years of reform, "children are still held in jails or jail-like facilities."(fn26) According to the director, the traditional purpose of detention was to warehouse children in secure custody until the court had time to investigate and act.(fn27) Most of the jails and police lock-ups where children were detained failed to meet even the minimum standards required for adult institutions.(fn28) In 1966, the plight of the juvenile courts led the United States Supreme Court to declare that a child charged with a crime may be receiving the "worst of both worlds: . . . he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children."(fn29)
Prompted by these concerns, in 1967 the Supreme Court formally recognized the constitutional rights of delinquent children in the landmark case of In re Gault.(fn30) In Gault, the Court concluded that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."(fn31) Thus, in judicial proceedings, due process requires that juveniles be given the right to notification of charges, the right to counsel, the right to confront and cross-examine witnesses, and the privilege against self-incrimination.(fn32) Although the Gault Court did not address whether juveniles were entitled to bail, the Court recognized that the parens patriae juvenile court system had been used as a justification for the denial of this right.(fn33) But, despite the Court's skepticism of the constitutional and theoretical bases for the separate juvenile system,(fn34) it stopped short of holding the parens patriae approach unconstitutional.
Some advocates feared that constitutional protections for juveniles would frustrate parens patriae objectives by creating a formalistic and adversarial environment.(fn35) However, Justice Fortas noted that "the observance of due process standards, intelligently and not ruthlessly administered, will not compel the States to abandon or displace any of the substantive benefits of the juvenile process."(fn36) Thus, after Gault, a new era in juvenile justice seemed to be dawning under a "due process model," characterized by more formalized processes and concern for juveniles' rights at every stage of the proceedings.(fn37) During the 1970s, the Court extended constitutional protections by recognizing the right to proof "beyond a reasonable doubt" in delinquency adjudications(fn38) and granting double jeopardy protection to juveniles.(fn39)
Yet, despite the Supreme Court's dissatisfaction with the flexible parens patriae approach, the due process model has not been fully realized. Instead, the Court has continued to base decisions on what it characterizes as the unique, informal nature of the juvenile system. For example, in McKeiver v. Pennsylvania,(fn40) the Court denied the right to jury trial in juvenile adjudications.(fn41) The McKeiver Court declined to constitutionally mandate trial by jury in juvenile adjudications, in part, because jury trials would introduce "the traditional delay, the formality, and the clamor of the adversary system" into the already defective juvenile courts.(fn42) The result is that, while the United States Constitution is undoubtedly applicable in juvenile proceedings, "the Constitution does not mandate [the] elimination of all differences...
