Throwing away the key on society's youngest sex offenders.

• Author: Turoff, Alison G.

1. INTRODUCTION

   Although the academic community has hotly debated the merit and constitutionality of sexually violent person commitment laws, (1) no one has addressed the impact these laws have on juvenile sex offenders. (2) Regardless of their constitutionality as applied to adults, (3) the appearance and administration of sexually violent predator laws with jurisdiction over juvenile delinquents violates several constitutional principles at both the state and federal level. (4) Because minors do not receive the protection of the Sixth Amendment, (5) sexually violent predator laws for juveniles violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment. (6)

   Illinois, as the founder of the juvenile justice system in the United States, (7) gives a prime demonstration of how a state's criminal, juvenile and mental health laws interact to violate the rights of the nation's youngest offenders. Because of the Juvenile Court Act, minors may be charged with regular crimes but generally face trial in Juvenile Court, rather than criminal court. (8) For example, a minor accused of aggravated criminal sexual assault, a Class X felony under Illinois criminal law, (9) would face this charge in Juvenile Court. Minors adjudicated guilty of sex crimes are subject to the Sex Offender Registration Act (10) and the Sexually Violent Persons Commitment Act, (11) just like adults convicted of similar crimes. (12) Scholars and practitioners have debated the merit of these types of laws, questioning their efficacy and constitutionality. (13) Under the Sexually Violent Persons Commitment Act, people found to be sexually violent may be involuntarily committed to a secure facility for an indefinite period of time--until deemed "cured," or no longer sexually violent. (14)

   Juveniles in Illinois normally do not receive jury trials when charged with offenses like aggravated criminal sexual assault. (15) Because of two thirty year-old cases declaring that juveniles do not have state or federal constitutional rights to a jury trial, (16) the Juvenile Court in Illinois will usually deny any motion for a trial by jury. (17) If the State later petitions for a juvenile guilty of aggravated criminal sexual assault or other sex offenses to be classified as a sexually violent person, its petition would include the fact that he had been adjudicated guilty of a sex offense or offenses as a juvenile. (18) This constitutes one half of the State's burden of proof in order to commit this young person to a secured treatment facility for an indeterminate amount of time. (19)

   Thus, any juvenile sex offender, regardless of age, could be incarcerated indefinitely because of just one offense, yet that minor had no jury trial for the original offense, the offense that led to his determination as a sexually violent person. (20) Without the right to a jury trial for the criminal offense, the use of a juvenile's past adjudication as a sex offender in a sexually violent persons commitment proceeding violates the minor's due process and equal protection rights by allowing the state to indefinitely, commit him based on the bench trial adjudication of guilt. (21) States like Illinois that intend to apply their sexually violent person laws to juvenile offenders must provide a juvenile defendant with a jury trial option for the alleged sex offense or forfeit the state's ability to commit later the juvenile as a sexually violent person. (22)

   Part II of this comment discusses the juvenile court and the state and federal cases that have denied juveniles a constitutional right to jury trials. (23) Part II also explains how the sex offender registration and sexually violent person laws operate. In Part III, the interplay of these systems and laws is analyzed. Finally, Part IV concludes that while involuntary commitment laws for sex offenders may be legal for adult offenders, they are unconstitutional when applied to juvenile offenders because the offenders lack the right to jury trials.

2. THE CURRENT STATE OF THE LAW

   1. THE FUNDAMENTAL NATURE OF THE JURY TRIAL

      The trial by jury is an integral component of the American and Anglo systems of justice. The jury trial is so important that it appears at least twice within the Constitution. (24) Article III of the Constitution declares, "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury...." (25) This ideal was repeated in the Bill of Rights, underscoring its significance. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...." (26)

      The United States Supreme Court has frequently recognized the necessity of the jury trial, most notably in Duncan v. Louisiana, where the court held that the denial of a jury trial for a crime punishable by two years imprisonment violated the constitutional rights of the defendant. (27) The Duncan Court detailed a short history of the trial by jury and cited several of its own opinions discussing the importance of the jury trial. (28) The Court then explained why the jury trial is so fundamental to the American system of justice:

      The guarantees of a jury trial in the Federal and State Constitutions reflect a profound judgment about the way law should be enforced and justice administered. A right to a jury trial is granted to criminal defendants in order to prevent oppression by the Government.... (29) Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power--a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. (30)

      The jury trial not only helps ensure accurate fact-finding but also protects citizens from abuses of power by prosecutors and judges and places another system of checks and balances on the government. (31) Therefore, the jury trial is a fundamental component of American jurisprudence. (32)

   2. THE JUVENILE COURT AND DENIAL OF A JURY TRIAL

      The juvenile delinquency side of the Juvenile Court of Illinois is similar to those of the other states. (33) It implements the process afforded by the Juvenile Court Act of 1987 for treatment of juveniles charged with crimes. (34) The Juvenile Court Act and both the Illinois and federal constitutions provide minor defendants with many of the same protections that adult defendants have. For example, juveniles have the right to counsel, the right to be free from self-incrimination, and the right to face their accusers and question witnesses. (35)

      However, minor defendants do not have all of the same rights as their adult counterparts. (36) Most importantly, juveniles do not have the right to a jury trial. (37) Thirty years ago, both the Illinois and the United States Supreme Courts declared that there is neither state nor federal constitutional protection for jury trials for juvenile defendants. (38) In In re Fucini, an Illinois minor was accused of grand theft of an automobile with a value greater than $150. (39) He challenged his lack of a jury trial pursuant to the Sixth Amendment and the procedural due process grounds of the Fourteenth Amendment. (40) However, the Illinois Supreme Court found that "trial by jury is not crucial to a system of juvenile justice." (41) The Fucini Court did not want to add more formality than was already present in juvenile court proceedings. (42)

      One year after Fucini, the United States Supreme Court decided a similar case comprised of cases consolidated from Pennsylvania and North Carolina (43) and came to the same conclusion as the Fucini Court, namely that jury trials are not fundamental to the juvenile court process. (44) In McKeiver v. Pennsylvania, minors from Pennsylvania and North Carolina appealed their bench trial adjudications as delinquents for various criminal offenses, such as robbery, non-aggravated assault, and willfully impeding traffic. (45) The Court conceded that the Sixth and Fourteenth Amendments require states to provide impartial juries in all criminal prosecutions because the Court believed that jury trials for criminal defendants are "fundamental to the American scheme of justice." (46) Nevertheless, the Court decided that jury trials are not fundamental for criminal defendants under the age of eighteen, despite its decision in Duncan. (47)

      The Court recognized that the due process standard was "fundamental fairness" (48) but found that jury trials for juveniles did not violate this standard for several reasons. (49) First, jury trials for juveniles would transform juvenile court proceedings into fully adversarial ones. (50) Second, a federal government task force report did not recommend such a right. (51) Finally, prior Court dictum stated that jury trials are not required in every criminal process. (52) Therefore, the Court concluded that while states may mandate jury trials for juvenile defendants by statute, minors do not have the same constitutional rights as their adult counterparts. (53) Thus, "fundamental fairness" does not require that juveniles' interests be protected through jury trials. (54)

      These cases, however, are not dispositive of the issue of jury trials for juveniles. The Supreme Court in McKeiver explicitly stated that states may allow a statutory right to a jury trial if they so choose. (55) The Illinois Juvenile Court Act, for example, has three exceptions to the general rule of bench trials for minor defendants. (56) Juveniles have the right to a jury trial when they fall...