Combining Alcohol and Other Drug Abuse Treatment With Diversion for Juveniles in the Justice System
Treatment Improvement Protocol (TIP) Series 21

Kent v. United States 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.84 (1966)

Morris Kent had his first contact with the juvenile court in 1959 at age 15 and was on probation to the District of Columbia Juvenile Court in September of 1961. On September 2, 1961, in a D.C. residence, there was a breaking and entering, theft and rape. Latent prints were found at the scene of the crime and a search of records revealed that the prints matched those of Kent. On September 5, 1961 he was taken into custody by the police and interrogated. He was 16 at the time. Kent was questioned for several hours, then taken to the Receiving Home for Children. The next morning the police picked him up again and interrogated him until 5 p.m. His parents did not find out about the custody until September 6th and an attorney was hired at 2 p.m. on that day. The attorney gave notice that the proposed transfer of the case to criminal court would be opposed, hired a psychiatrist, and made a formal request for Kent's juvenile records. The juvenile court made no ruling on the attorney's motions and held a court hearing. Apparently, some of Kent's records were examined and Kent was transferred to adult court. There were no findings recorded with the transfer. Subsequently in adult court, Kent was convicted of all charges.

With the decision in this case, the U.S. Supreme Court reversed a sixty-seven year practice of what has been characterized as the "hands off" period of the juvenile justice system. From 1899, when the first statewide juvenile court system was enacted in Illinois for Cook County, until the Kent decision, the court system, which was designed to rehabilitate rather than punish, had no guidance from the highest court. The Kent case was the first look taken by the Court at the system as it was functioning, and the Court did not like what it saw. After discussing the objectives of the juvenile court system and comparing the juvenile and adult systems, Justice Fortas writing for the majority, stated:

There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds; that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.

The Court, in declaring that the transfer of Kent to the adult court system was invalid, dealt with four major problems with the procedure followed by the juvenile court: lack of a hearing, lack of effective assistance of counsel, access to records, and lack of a statement of reasons for the transfer. Considering that a transfer from juvenile to criminal court is critically important, it was determined that the juvenile court had exclusive jurisdiction to consider this matter, and that it must be guided by the essentials of due process and fair play. A meaningful review of the proposed transfer must include a full investigation, not merely assumptions as the basis for transfer. In line with this, an attorney representing the child was considered vital, the Court stating that the juvenile court judge had no justification for failing to rule on the attorney's motions. Further, attorney access to records of the child was essential, particularly since the Court referred to them in making its transfer decision.

In re Gault 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed. 527 (1967)

The following year, the Supreme Court decided a more significant case arising out of Arizona. On June 8, 1964, when Gerald Frances Gault was 15 years old, he was arrested and taken to Children's Detention Home in Gila County, Arizona, on the basis of a verbal complaint from a female neighbor alleging Gault made an indecent telephone call. Upon his being taken into custody, no notice was given to his parents, who found out later that he was in the detention facility. The next day, the juvenile court held a hearing using a petition filed and signed by the probation officer alleging only that Gault needed the protection of the juvenile court. There was no notice to the parents, and they were not furnished with a copy of the petition. Gault was not given a copy of the petition. There was no lawyer present representing Gault and no testimony from the neighbor, who was not even present; the only testimony was that of the juvenile probation officer who had one telephone conversation with the neighbor. There was no record of the proceedings. Gault was questioned and responded, although recollections of this testimony varied. At the end of the hearing, Gault was returned to the detention facility. He was released to his parents June 11th or 12th, although no reason was given as to why he was kept in detention or why he was released. Another hearing was held June 15th. Still there was no lawyer for Gault, no complainant present, and no record. At the end of this hearing, Gault was found to be delinquent and was committed to the State Training School until age 21, unless earlier released. In Arizona at that time, no appeal was permitted in juvenile cases.

Again, the Court determined that in three specific areas the juvenile court failed to provide the child with the essentials of due process and fair play required in the Kent case. The first of these areas related to notice of charges. Despite the fact that the juvenile court judge stated that Mrs. Gault knew what the charges were and that the parents attended two hearings without objection, the Supreme Court stated that this was not sufficient for "due process." Notice must be given, in writing, sufficiently in advance of the hearing to permit the child and his parents to be prepared. Also, the notice must state what the charges are, with sufficient particularity, so that they know what is being charged and what conduct is alleged to have taken place. The second of these areas related to the right to counsel. To the argument that the parents and the probation officer could be relied upon to protect the child's interests, it was pointed out that neither might have legal knowledge. It was also pointed out that both the probation officer, who is required to be a court officer, and the parents, who might have their own defense, may not be able to represent the child and the child only. In any situation in which a child's liberty might be affected by commitment to an institution, "due process" requires that they be notified of the child's right to be represented by an attorney, either hired by him or appointed by the court. Finally, it was determined that there are certain other rights which are so basic to a fair hearing that they should be extended to juvenile proceedings, such as the right to confront those accusing one of improper conduct, the right to avoid self-incrimination, and the right to cross-examine any witness who appears in a matter against a child.

These and other "due process" rights were familiar to the adult criminal system; however, this was the first time they were transposed to the juvenile system. Again, the U.S. Supreme Court was very close to deciding the other way, with four justices out of nine dissenting. The concern of these four was best expressed by Justice Harlan who wrote:

[I]t should not be forgotten that juvenile crime and juvenile courts are both now under earnest study throughout the country. I very much fear that this Court, by imposing these rigid procedural requirements, may inadvertently have served to discourage these efforts to find more satisfactory solutions for the problems of juvenile crime, and may hamper enlightened development of the systems of juvenile courts.

Note that the Gault case is limited to the adjudication hearing and some pre-adjudication procedures. It specifically states that none of the "due process" or "fundamental fairness" standards are made applicable to the disposition phase. Concerns about the inability to tailor treatment of the individual child are not affected. In the determination of whether or not the facts alleged in the complaint are true, the test is fundamental fairness and is to be applied objectively. Once that determination is made, evaluation and disposition still remains subject to the doctrine of parens patriae and is to be applied subjectively, so that each child is dealt with individually.

Standard of proof: beyond a reasonable doubt

In re Winship 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)

This case was initially decided one year after Gault. A 12 year old allegedly stole $112 from a pocketbook in New York in 1967. At that time, New York required the same standard of proof in juvenile proceedings as in civil cases: proof by a preponderance of the evidence. Preponderance of the evidence means more than fifty percent of the evidence. Obviously, there could be decisions made by preponderance that would be very close. In criminal cases, proof is required to be beyond a reasonable doubt. This means that the evidence, taken as a whole, tends to exclude every other reasonable explanation, except as charged, with moral certainly. This case presented the question of which standard of proof would be required in juvenile court; or to put it in the terminology of the court, whether proof beyond a reasonable doubt is among the essentials of due process and fair treatment required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult. The Supreme Court held that proof beyond a reasonable doubt was required.

Again, the Supreme Court applied constitutional due process standards and required the juvenile court to conform. Three Justices dissented, stating that it is not the purpose of the court to make the juvenile system a mini-criminal court.

No right to trial by jury

McKeiver v. Pennsylvania 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971)

In this case, Joseph McKeiver, 16, was charged in juvenile court with delinquency based on conduct amounting to robbery, larceny and receiving stolen property. Through his attorney, he requested a jury trial in juvenile court, and properly preserved this request for consideration by the high court. His request was denied, and another Pennsylvania case and several North Carolina cases also involving jury requests were consolidated for hearing by the Supreme Court. In ruling that a jury is not constitutionally required in juvenile court, the Court seemed to be seeking some middle ground between the adult and juvenile systems. It was specifically stated in this case that all adult criminal rights are not being imposed on the juvenile system. Because it was believed that judges could determine the facts as well as a jury, the Court refused to impose more substantial changes in juvenile court procedure.

Double jeopardy: juvenile adjudication equated to criminal conviction

Breed v. Jones 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975)

At age 17, Jones committed robbery with a deadly weapon in Los Angeles, California. He was detained the next day. In due course, the juvenile court held a hearing and adjudicated him delinquent. After adjudication, but before disposition, the juvenile court found him to be unamenable to treatment in the juvenile system. He was, therefore, transferred to adult criminal court, where he was found guilty of robbery and sentenced to the penitentiary. The conviction was challenged on the ground of double jeopardy.

Jeopardy denotes risk, typically associated with criminal prosecution. Double jeopardy has generally been defined as being put at risk of the same peril twice. To be tried in state criminal court for an action, then subjected to state civil court for the same action is not double jeopardy because the risk is not the same. Similarly, to be tried in state criminal court for an act is not generally a bar to being tried in federal court for the same act, as state and federal laws are separate and distinct. The Supreme Court decided that this case violated double jeopardy provisions of the Constitution when it pointed out that jeopardy attached when the juvenile court started hearing evidence on the delinquency petition. After that point, a criminal prosecution based on the same act would be double jeopardy. In addition, the Supreme Court concluded that for the purposes of the fifth amendment prohibition against double jeopardy, "in terms of potential consequences, there is little to distinguish an adjudicatory hearing such as was held in this case from a traditional criminal proceeding" (421 U.S. at 531).

Consider how strongly the U.S. Supreme Court felt about this issue: the opinion was 9-0. There was no dissent. Further, Jones, like Gault, was 21 at the time the Court considered the case. The Court recognized that vacating the judgment set him free, because he was beyond the jurisdiction of the juvenile court.

No double jeopardy: de novo hearing or supplemental findings by judge after trial before a master

Swisher v. Brady 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978)

This case grew out of delinquency cases heard by masters in Maryland in 1974 and 1975. Children whose cases were tried before masters objected to the state procedure for providing for de novo, or new, hearings before the juvenile court judge, or supplemental findings to those of the master by the juvenile court judge. The objections were based solely on the grounds of double jeopardy. Refer to the discussion of the previous case about this term.

Perhaps because of the usefulness of masters and the increasing caseloads of judges, this procedure was found not to violate due process and fundamental fairness standards discussed earlier. The Supreme Court said that to the extent that the juvenile court judge makes supplemental findings in a manner permitted by Rule 911 -- either sua sponte, in response to the State's exceptions or in response to the juvenile's exceptions, and either on the record or in a record supplemented by evidence to which the parties raise no objection -- he/she does so without violating the constraints of the Double Jeopardy Clause of the U.S. Constitution.

Presence of probation officer not required for continuation of police interrogation

Fare v. Michael C. 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)

Sixteen year old Michael C. was implicated in the murder of Robert Yeager during a robbery. Police in Van Nuys, California picked him up on February 4, 1976 and questioned him. Before any questions, he was told his full Miranda rights. Before the questioning started, Michael asked for, not a lawyer, but his juvenile probation officer. The probation officer was not called, and the police continued to question Michael. During the questioning, Michael incriminated himself, and this incrimination was later used in the adjudication. The question raised by this case is whether asking for a probation officer is the same as asking for a lawyer, so that questioning cannot continue.

In another 5-4 decision, the Supreme Court ruled that the request did not require the police to stop the interrogation. While the juvenile probation officer did hold a position of trust with the child being questioned, he was not in a position to offer effective legal advice like a lawyer. The dissenting opinions take the position that when a child being interrogated by the police asks for a adult who is obligated to protect his interests, he is invoking the protection promised in Miranda v. Arizona.

Preventive pre-trial detention of juveniles; "fundamental fairness" standard of due process clause

Schall v. Martin 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984)

Gregory Martin was arrested in 1977 and charged with first-degree robbery, second-degree assault and criminal possession of a weapon based on an incident in which he, with two others, allegedly hit a youth on the head with a loaded gun and stole his jacket and sneakers. Because he lied to the police about where and with whom he lived, he was detained overnight.

The family court judge, based on the possession of the loaded weapon, the false address given to the police and the lateness of the hour ordered Martin into preventive pre-trial detention. While he was still in preventive detention pending his fact-finding hearing, Martin instituted a habeas corpus class action on behalf of "those persons who are, or during the pendency of this action, will be preventively detained" pursuant to the New York Family Court Act section under which he was detained. The class action sought a declaratory judgment that the statute violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution. The New York district court certified the class action. On the basis of the evidence presented, the district court rejected the equal protection challenge, but agreed that pre-trial detention under the Family Court Act violated due process. The New York Court of Appeals affirmed.

The statute in question in this case permitted a brief pre-trial detention based on a finding of a "serious risk" that an arrested juvenile may commit a crime before his return date. The U.S. Supreme Court addressed two issues:

1. Does preventive detention under the New York statute serve a legitimate state objective?
2. Are the procedural safeguards contained in New York's Family Court Act adequate to authorize the pre-trial detention of at least some juveniles charged with crimes?

As to the first issue, the Supreme Court decided that society has a legitimate interest in protecting a juvenile from the consequences of his criminal activity. It also noted that, at the time of its decision (1984), every state as well as the District of Columbia permitted preventive detention of juveniles accused of crime.

As to the second issue, the Court stated that "due process requires that a pre-trial detainee not be punished." The Court found several procedural safeguards in the New York statute:

• there was no indication in the statute itself that preventive detention is used or intended as a punishment;
• the detention was strictly limited in time;
• detained juveniles are entitled to an expedited fact-finding hearing; and
• the conditions of confinement appeared to reflect the regulatory purposes relied upon by the State.

In deciding the second issue, the Supreme Court held that New York's Family Court Act provides far more pre-trial detention protection for juveniles than constitutionally required for a probable cause determination for adults. Notice, a hearing, and a statement of facts and reasons are to be given prior to any detention under the statute. A formal probable cause hearing is held within a short while thereafter, if the fact-finding hearing is not scheduled within three days.

Given the regulatory purpose for the detention and the procedural protections that preceded its imposition, the Court concluded that the New York statute permitting preventive pre-trial detention for a juvenile is valid under the Due Process Clause of the Fourteenth Amendment.

A three member dissent argued that the Court should strike down New York's preventive detention statute on two grounds: first, because the preventive detention of juveniles constitutes poor public policy, with the balance of harm outweighing any positive benefits either to society or to the juveniles themselves, and, second, because the statute could have been better drafted to improve the quality of the decision making process.

Death penalty; juveniles under 16; cruel and unusual punishment

Thompson v. Oklahoma 487 U.S. -- , 101 L.Ed.2d 702, 108 S.Ct. 2687 (1988)

William Wayne Thompson, age 15, along with three older persons, actively participated in the brutal murder of his former brother-in-law in the early morning hours of January 23, 1983. After a hearing, the court concluded "that there are virtually no reasonable prospects for rehabilitation of William Wayne Thompson within the juvenile system and that he should be held accountable for his acts as if he were an adult and should be certified to stand trial as an adult." At the penalty phase of the trial, the prosecutor asked the jury to find two aggravating circumstances: that the murder was especially heinous, atrocious, or cruel; and that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The jury found the first, but not the second, and fixed Thompson's punishment at death. The U.S. Supreme Court agreed to consider whether the execution of the death sentence would violate the constitutional prohibition against the infliction of "cruel and unusual punishments" because Thompson was only 15 years old at the time of his offense.

The Court decided that contemporary standards of decency confirm their judgment that such a young person is not capable of acting with the degree of culpability that can justify the death penalty. In order to reach its conclusion, the court first reviewed relevant legislative enactments. The Court found complete or near unanimity among all fifty-one jurisdictions in treating a person under 16 as a minor for several important purposes: voting, serving on a jury, driving without parental consent and marrying without parental consent. In those states that have legislated on the subject, no one under ate 16 may purchase pornography and in most states that have some form of legalized gambling, minors are not permitted to participate without parental consent. The Court found it most relevant that all states have enacted legislation extending juvenile court jurisdiction to no less than the 16th birthday. Of the 18 states that have expressly established a minimum age in their death-penalty statutes, the Court found that all of them require that the defendant have attained at least the age of 16 at the time of the capital offense.

The second factor the Court examined in determining the acceptability of capital punishment to the American public is the behavior of juries. The Court found that during the past four decades, in which thousands of juries have tried murder cases, the imposition of the death penalty on a 15-year-old offender was abhorrent to the conscience of the community.

In deciding whether it would be "cruel and unusual" to execute William Wayne Thompson, in particular, the Court came to several conclusions. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult. The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders. The court decided neither of these purposes would be fulfilled by executing a 15-year-old. Given the lesser culpability of the juvenile offender, the teenager's capacity of growth and society's fiduciary obligations to its children, retribution is simply inapplicable to the execution of a 15-year-old offender. As for the deterrence rationale, the likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be nonexistent.

The court was asked to "draw a line" that would prohibit the execution of any person who was under the age of 18 at the time of the offense, and refused to do it. If did, however, conclude that the Eighth and Fourteenth Amendments prohibit the execution of a person who was under 16 years of age at the time of his or her offense.

Four justices joined in this plurality opinion. One justice concurred in the judgment. Three justices dissented. The concurrence concluded that Thompson and others who were below the age of 16 at the time of their offense may not be executed under the authority of a capital punishment statute that specifies no minimum age at which the commission of a capital crime can lead to the offender's execution. The dissent argued that there is no rational basis for discerning that no one so much as a day under 16 can ever be mature and morally responsible to deserve the death penalty.

Death penalty; juveniles 16 or 17; not cruel and unusual punishment

Stanford v. Kentucky 492 U.S. -- ., 106 L.Ed.2d 306, 109 S.Ct. 2969 (1989)

This decision was rendered on consideration of two consolidated cases. In the first case, Kevin Stanford and an accomplice repeatedly raped and sodomized a female gas station attendant during and after their commission of a robbery at the gas station. They then drove her to a secluded area, where Stanford shot her point-blank in the face and then in the back of her head. Stanford committed this murder when he was approximately 17 years and 4 months of age. Stanford was waived to criminal court where he was convicted of murder, first-degree sodomy, first-degree robbery and receiving stolen property. He was sentenced to death and 45 years in prison.

In the second case, Heath Wilkins, of Missouri, stabbed to death a 26-year-old mother of two who was working behind the sales counter of convenience store. The record reflects that Wilkins' plan was to rob the store and murder "whoever was behind the counter" because "a dead person can't talk." Wilkins was approximately 16 years and 6 months of age when he committed this murder. He was waived to criminal court where he was convicted of first-degree murder, armed criminal action and carrying a concealed weapon. A punishment hearing was held, at which both the State and Wilkins himself urged imposition of the death sentence. The trial court determined that the death penalty was appropriate.

The U.S. Supreme Court discerned neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age. They concluded that such punishment does not offend the Eighth Amendment's prohibition against cruel and unusual punishment. Therefore, it affirmed the judgments of the State Supreme Courts. A concurring opinion concluded that the death sentences should not be set aside because it is sufficiently clear that no national consensus forbids imposing capital punishment on 16-or 17-year old murderers.

Four justices joined in a dissent, stating they believed that to take the life of a person as punishment for a crime committed when below the age or 18 is cruel and unusual and thus prohibited by the Eighth Amendment. The dissent concluded that the death penalty for those under 18 makes no measurable contribution to the acceptable goals of punishment. It argued that the execution of juvenile offenders contributes neither to the goal of deterrence nor retribution, essential for the same reasons given in Thompson v. Oklahoma.

Probationary Conditions

One of the most important tasks of the juvenile probation officer is to assist the court in fashioning just and effective dispositions. Properly crafted conditions of probation may safely control the behavior of even the most serious juvenile delinquents before the court. Poorly thought out and fashioned conditions may actually undermine the potential of probation to keep the juvenile out of further trouble. Probationary conditions are the building blocks of a probationary program. Specific conditions are what make the probation fit the individual and what he has done. They detail what the probationer must do to make up for the delinquent acts and to improve behavior, while at the same time guaranteeing the public safety. For these reasons, it is important that all juvenile probation officers understand the basic premises of caselaw defining permissible probation conditions.

There are two kinds of probationary conditions: mandatory and discretionary. They may be specified by statute or left to the imagination and creative impulses of the court and the juvenile probation officers on which it relies.

Setting Conditions

Probation Revocations:

If the probationer violates any condition of probation, the probation officer may send him notice to appear in court or arrest him and bring him to court for a hearing. The hearing is generally called a "revocation hearing," but because the probation officer is surrendering the probationer to the court for a violation of probation, the hearing is sometimes referred to as a "surrender hearing" or a "violation hearing."