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

• Author: Gupta-Kagan, Josh
• Position: IV. Why We Should Care B. Violating Separation of Powers Is Particularly Harmful in Juvenile Court through VI. Conclusion, with footnotes, p. 1275-1298 - Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy

2. Violating Separation of Powers Is Particularly Harmful in Juvenile Court

   Placing juvenile officers in the judiciary and rendering them subject to judges' supervisory control is particularly harmful in the juvenile court context. The high stakes in juvenile court cases--whether the state legally severs family relationships and whether children are placed in detention or other forms of state custody--make it incumbent upon juvenile courts to reach fair and accurate decisions. Yet, in child welfare cases especially, commentators have roundly criticized juvenile courts around the nation for practicing "groupthink," (172) making decisions based on cognitive short cuts (also known as heuristics), (173) and exerting coercive authority in a therapeutic guise to pressure parties--especially mothers--to go along with state-created plans to break up families pending parental rehabilitation. (174) In these critiques, juvenile courts are places where cozy in-groups of repeat players--the judges, lawyers, and case workers who routinely practice in juvenile court--subtly and often unintentionally create an institutional culture. That culture dissuades individuals from challenging decisions and further disempowers the disproportionately poor, minority, and female-headed families subject to juvenile court child abuse and neglect jurisdiction. These features lead to negative outcomes in multiple ways: courts reach inaccurate decisions because these features hide disputed factual issues, (175) the features trigger reliance on mental short cuts, (176) and they create an institutional culture in which multiple players avoid challenging what the culture teaches them to expect. (177) These elements erode courts' abilities to give all parties a voice injudicial processes; a voice that social scientists have found to be essential to developing a sense of procedural justice among litigants. (178)

   The foregoing critiques apply to juvenile and family courts nationwide, but the juvenile officer's role in the Missouri system exacerbates these core problems in at least four ways. First, Missouri's juvenile court structure takes a step towards an inquisitorial model in which a judicial branch employee determines which cases to prosecute and how. Social scientists have found an inquisitorial system less preferable to litigants than an adversarial system, largely because litigants feel they have a greater voice in an adversarial system. (179) When litigants--children, who are by virtue of their age generally considered legally disabled, and their disproportionately poor and minority parents, who generally lack power due to their low socioeconomic status--see a judicial branch employee arguing to their supervisor, the judge, that the parent neglected the child or that the child committed a delinquent act and must be removed from his parent and placed in state custody, it is not hard to imagine why they might feel their voice is not heard quite as clearly. Litigants may even question the judge's neutrality when the judge is asked to adjudicate a petition filed by a member of the judge's own team. (180) In child welfare cases, litigants' voices are further diminished by adding another individual to speak with the voice of state authority: the Children's Division worker. In other states, the child welfare agency prosecutes child protection petitions. (181) In Missouri, child protection cases have two officials--the Children's Division worker and the juvenile officer--typically arguing for state invasions of family integrity. (182) A litigant's voice, or the litigant's perception of having a sufficiently strong voice, is further diminished by the first among equals role that juvenile officers take in hearings; by introducing all the parties and presenting all parties' reports to the judge, (183) the juvenile officers act out the families' relative lack of power and voice in the proceeding.

   Missouri law also exacerbates a second core problem: the juvenile officer's role within the judicial branch increases the cohesion of the decision-making group. One pillar of juvenile court critiques is that the professionals who staff juvenile courts create a cohesive decision-making group in which repeat players become unlikely to challenge dominant thinking and the institution makes decisions through group think. (184) In juvenile courts outside of Missouri, this concern is partly balanced by some of the repeat players' professional duty to serve as checks on each other. Lawyers advocate for their clients and an executive branch agency asserts its own values, policy priorities, and institutional culture through its prosecutorial choices, which are checked by judicial decisions. (185) Juvenile officers cannot be expected to exercise independent discretion in the way a separate agency would; as the Supreme Court of the United States said, "[I]t is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will." (186) Placing juvenile officers and their prosecutorial discretion in the judicial branch erodes the executive branch's check on group think. In Missouri juvenile courts, the Children's Division is unrepresented and the most important legal decisions are turned over to the juvenile officer, who presents his recommendations to his supervisor, not an independent arbiter. (187) Eroding this check limits judges' ability to evaluate effectively competing perspectives that are presented. The ABA has explained that judges are best able to render truly independent decisions when they are evaluating recommendations presented by various parties, not those from the court's own employees. (188)

   There is also evidence that the juvenile officer's role erodes the check on group think provided by counsel for children and their parents in delinquency and abuse and neglect cases. In both categories of cases, juvenile officers meet with individuals at the initial stages of litigation and advise them of their right to counsel. (189) The National Juvenile Defender Center's 2013 evaluation of Missouri's juvenile justice practice found that "[y]outh are also encouraged to wind up their cases and plead out without counsel by DJOs [deputy juvenile officers]." (190) This phenomenon is exacerbated by juvenile officers who believe that no defense lawyers are necessary, even at detention hearings, because the juvenile officers "ha[ve] it covered." (191) Furthermore, many juvenile officers incorrectly advise youth that the juvenile officer advocates for, rather than charges and prosecutes, the youth. (192) Such beliefs could easily lead a juvenile officer to suggest--implicitly or explicitly--to children and parents that they should waive their right to counsel, (193) thus depriving judges of the ability to render decisions based on an adversarial hearing of the evidence.

   Moreover, judges are often shaped by the organizational culture in which they find themselves. Judges' reputations within juvenile court will be influenced by the repeat players who appear before them regularly, and so one would expect judges to respond, at least partially, to the expectations of those repeat players. (194) When judges arrive in juvenile court, they find an existing courthouse culture--that is, a set of norms that are shared, even if unspoken, by the group of professionals who handle cases within the court. (195) When beginning a new set of job responsibilities and encountering such an organizational culture, judges, like other individuals, undergo a socialization process. (196) It stands to reason that new juvenile court judges, especially those unfamiliar with juvenile law, are at the greatest risk of deferring to this organizational culture. Making the judge's own staff, both juvenile officers and their attorneys, leading figures in that culture increases the social and psychological pressure on new judges to defer to that culture's norms and issue orders that comport with juvenile officers' litigation positions. (197) Further, new judges relatively unfamiliar with the specialized subject matter are particularly prevalent in juvenile court because judges frequently rotate in for four-year assignments to the juvenile court. (198)

   Third, Missouri law exacerbates critics' general concern that the juvenile officer's role increases the pressure felt by professional repeat players to conform their decision-making to an individual judge's wishes. The juvenile court judge has long been viewed as the "leader[] of the court 'team'" (199) who, rather than passively and neutrally deciding disputes brought by parties with whom they have no formal relationship, operates as a "charismatic leader, problem solver, team manager, and judicial leader." (200) According to this view, judges are more likely to give directions, implicitly or explicitly, to members of their team, and those members are likely to feel pressure to achieve some consensus consistent with judges' wishes. (201) For example, judges' power to appoint lawyers--and thus to give lawyers business--can create pressure on such lawyers "to alter their behavior or demeanor before a particular judge in an attempt to secure future appointments." (202) As with group think concerns, this pressure should be counterbalanced by professionals' obligations to their own clients (203)--a principle which should include the priorities of an executive branch agency. And lawyers should have other sources of business--full-time employment with executive branch agencies, appointments from other judges, or other sources of clients (especially for many of the solo practitioner and small firm attorneys who practice in Missouri's juvenile courts). Missouri law erodes those protections because juvenile officers depend on judges for their jobs and are subject to both the judges' legal rulings and managerial authority. Moreover, the juvenile officers'...