Where the judiciary prosecutes in front of itself: Missouri's unconstitutional juvenile court structure.

AuthorGupta-Kagan, Josh
PositionI. Introduction through IV. Why We Should Care A. The Juvenile Officer's Role Is an Anachronism, p. 1245-1275 - Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy
  1. INTRODUCTION

    Missouri law structures juvenile courts in an "unusual" manner. (1) State law grants an individual known as the juvenile officer the exclusive authority to determine which child welfare or delinquency cases to file. (2) State law also grants juvenile court judges the authority to hire and supervise juvenile officers. (3) Those same juvenile court judges then adjudicate the cases filed and prosecuted by the juvenile officer. (4) That is, in Missouri juvenile courts the judicial branch prosecutes cases in front of itself.

    This structure is unusual in multiple ways. Most obviously, it differs from the American norm of executive branch agencies and lawyers filing and prosecuting civil and criminal cases on behalf of the government. (5) It also differs from typical procedures followed in juvenile delinquency and child welfare proceedings in juvenile courts around the United States, in which executive branch officials determine which cases to prosecute and how. (6) This structure is particularly unusual in child welfare cases, in which an executive branch agency, the Children's Division of the Department of Social Services (Children's Division), operates a comprehensive child welfare system. (7) Unlike child welfare agencies in most other states, the Missouri Children's Division lacks the authority to determine which cases should be filed and how to prosecute them. (8) In addition, juvenile officers perform many of the same tasks as Children's Division case workers, such as making recommendations to the judge about where a foster child should live and whether the child should reunify with a parent. (9)

    This Article will address several issues raised by Missouri's unusual juvenile court structure, arguing that the structure violates the Missouri Constitution's separation of powers clauses by placing prosecutorial discretion within the judicial branch. (10) By granting juvenile officers, who are subject to judges' supervision, exclusive power to file child abuse and neglect and juvenile delinquency cases, Missouri law concentrates power into the hands of one branch of government. Missouri law thus empowers individual judges to set child welfare and juvenile justice policy by managerial decree. Subordinate judicial branch officials face pressure to file and litigate cases to please their boss, the judge, who hired them, supervises them, and has power to fire them. And the judge faces subtle pressure to rule in favor of his or her own employees, who are treated as first among equals in the courtroom. At the very least, the fact that the prosecuting staff and attorney work for the judge adjudicating the petition leads to an appearance of partiality to litigants.

    This Article will also discuss the anachronism that the juvenile officer's role represents. (11) In child welfare cases, the juvenile officer's role has not evolved with the modern administrative state. Missouri was one of the first states to adopt a juvenile court, and the state simultaneously established the juvenile officer's role in the early 1900s, before the modern administrative state existed. (12) When the modern administrative state developed in the 1930s, and especially when modern child welfare agencies developed in the 1960s and 1970s, the General Assembly charged the agency now known as the Children's Division with investigating allegations of child abuse and neglect and managing a complicated foster care system for children removed from their parents. (13) Unlike legislatures in forty-seven other states plus the District of Columbia, the Missouri General Assembly has never given the Children's Division the authority to decide, in collaboration with executive branch attorneys, in which cases to file petitions alleging abuse or neglect or requesting a court order placing a child in foster care. (14) Instead, the General Assembly developed the Children's Division without reforming the now more than a century old role of juvenile officers. (15)

    In juvenile justice cases, the juvenile officer possesses prosecutorial discretion because of the General Assembly's judgment, first, that juvenile court personnel could best achieve therapeutic aims and, second, that such aims take precedence over proper constitutional procedures, even before a juvenile is found responsible for a delinquent act. (16) Fulfilling therapeutic aims in the exercise of prosecutorial discretion remains appropriate and constitutes a vital element of the juvenile justice system; but doing so at the expense of constitutional protections reflects a worldview that has been untenable at least since the Supreme Court of the United States' watershed juvenile rights decision in 1967, In re Gault. (17) Gault makes clear that the Constitution requires basic due process protections in cases determining whether a youth should be subject to a juvenile court's dispositional orders. (18) Just as juvenile defendants enjoy the essential due process protections that adult defendants have, juvenile defendants should be tried in a system that respects basic principles of American government, including the separation of powers.

    The juvenile officer's role raises several concerns that are unique to child welfare cases. First, the juvenile officer's power limits the executive branch's authority to operate a comprehensive and consistent statewide child welfare system. (19) The General Assembly has charged the Children's Division with operating such a system--from managing a hotline for individuals to report suspected abuse and neglect, to coordinating voluntary services for families without court intervention, to helping find new permanent families for foster children who cannot reunify with their parents. (20) By taking away from the Children's Division the essential power to decide which cases need court attention, Missouri law undermines that agency's ability to fulfill its statutory obligations. Other states give their child welfare agencies the authority to decide which cases to file in court and which to address through less coercive means. (21) As separation of powers cases establish, this result is proper because such agencies have the most knowledge about available alternatives for each family and bear the consequences of filing cases. (22)

    The second child-welfare-specific concern is that the juvenile officer's role wastes public resources, spending millions of dollars on personnel who duplicate what Children's Division case workers do in child welfare cases, such as filing reports with the juvenile court asserting their understanding of the facts of a case and making recommendations for how the court ought to proceed. (23) The vast majority of other states operate their child welfare systems without spending resources on juvenile officers, in large part because most of what juvenile officers do is already done by child welfare agencies. (24) Children and families need many things that cost money--two prominent examples are more and better services to prevent and treat child abuse and neglect and better representation for children and parents in juvenile court much more than they need extra public officials involved in their cases duplicating work done by other public officials.

    These concerns are not merely abstract; one juvenile court judge has described phenomena in his judicial circuit that illustrate the harms predicted by the founders' writings on separation of powers. (25) Before he took the bench, he was told that the juvenile court judge "established the criteria for which cases would be pursued" by juvenile officers. (26) Juvenile officers would discourage Children's Division case workers from making recommendations that differed from the juvenile officers' recommendations. (27) And once he took the bench, juvenile officers sought his direction regarding how to handle different fact patterns. (28)

    Nor is the problem limited to awkward interactions between judges and juvenile officers. The Missouri structure creates an appearance of partiality, and children and families subject to juvenile court jurisdiction observe judges adjudicating petitions filed by their subordinates, possibly pursuant to managerial directions from the very same judge. Juvenile court litigants will reasonably wonder whether they will get a fair hearing on such petitions. As the same juvenile court judge put it, "How could litigants expect to prevail when the judge directed which cases would be prosecuted?" (29) Moreover, the juvenile officer's role as a member of the judiciary exacerbates well-documented problems with juvenile courts by creating an even tighter group of insiders operating the system and increasing pressure on individual litigants and attorneys to follow the norms of that system--whether or not they serve their own or their clients' interests. (30)

    To address this problem, the Missouri General Assembly should modernize the juvenile code to correct the separation of powers violation and reform the juvenile officer's role. In child welfare cases, the General Assembly should empower the state administrative agency to file and prosecute cases when necessary, thereby eliminating the need for a juvenile officer. In juvenile justice cases, the General Assembly should separate prosecutorial decisions from judges' control, while maintaining the existing law's commitment to achieving rehabilitative aims in such decisions. A simple solution in juvenile justice cases is to provide non-judicial supervision to juvenile officers and their attorneys. This Article proposes that the General Assembly create a state commission of juvenile justice experts from multiple disciplines to appoint and supervise the chief juvenile officers in each judicial circuit. Those officers, and not judges, would have authority to hire and manage juvenile officers and attorneys within their circuit. Absent legislative reforms, the courts should hold that the present system violates the Missouri Constitution's...

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