Weighing injustices of juvenile justice system

September 14, 1998|By Brian Maxey

NEW YORK -- The nation was stunned recently when it learned that the two Chicago boys ages 7 and 8 who had been charged with the brutal sexual assault and murder of an 11-year-old girl in July couldn't have done it.

After several weeks of media denunciation of the boys, prosecutors told the court that the state police lab had found semen on the victim's underwear. Forensic experts said it is only remotely possible for boys this young to produce semen.

Prosecutors asked that charges against the boys be dropped "in the interests of justice." Ironic, given how serious the miscarriage of justice could have been had prosecutors succeeded in their drive to have the boys convicted and sentenced as adults.

How did this happen? The American justice system has many protections in place for defendants. How had two children come so close to being tried for a crime they were physically unable to commit?

The children's paramount problem was that they were children. They fell within the jurisdiction of a juvenile justice system that, in the name of protecting them, deprived them of rights routinely held by adult defendants.

As adults, they would have been entitled to proper counsel, an impartial judge and procedures subject to the rules of evidence.

Under the concept of parens patriae (parent of his country), the juvenile court assumes the parental role. As an arm of the state, the court accepts custody and provides services to stem the criminal development of the child.

Flexible and informal, juvenile court procedures permit judicial discretion. The judge -- assumed to be benevolent -- decides what is in the child's best interests.

This elegant, antiquated theory failed to protect the two small respondents in Chicago.

Separated from their parents, the two boys were interrogated by three homicide detectives and two youth officers. They were asked to waive their right to counsel during the interrogation, which they did. Could they possibly have understood such a waiver?

After a brief initial investigation, police accepted the boys' confessions -- for which there was no corroborating evidence -- and ignored multiple eyewitness accounts saying the victim had entered a car with an older man.

For these boys, the juvenile court was no shelter. But far from being a gross exception in a well-functioning system, this case is mirrored every day in juvenile courts across the United States.

The nation's first juvenile court was created in Illinois in 1899 to handle the special problems of children accused of crimes. Because children were assumed to be less culpable than adults, they were to receive counseling and treatment from the courts rather than punishment.

The state functioned as parent, not as prosecutor.

By the end of the 1960s, the social and moral distinctions that spurred the original separation of the juvenile courts from adult courts had blurred.

The combination of rising juvenile crime and cuts in financial and political support helped shift the juvenile courts from a treatment-oriented approach to a punitive one. The goal of rehabilitation faded even as the disparity in rights between adults and children widened.

In one spectacular miscarriage of justice in 1967, a juvenile court sentenced a 15-year-old boy, Gerald Gault, to six years for making an obscene phone call.

The Supreme Court noted that the benignly named "Industrial School" to which Gault was sent was a place of confinement. Children thus confined were entitled to due-process protections against the parent state.

The court's announcement of these new rights established some safeguards against arbitrary punitive decisions. But it also weakened the protective stance of the juvenile courts and pushed the juvenile courts toward the adversarial system in which the prosecutor became the true adversary of the defense lawyer.

Juvenile court judges retain a high degree of discretion, disproportionate to that held by judges in adult courts.

Despite the Supreme Court's assertion of the child's right to counsel, many children find themselves facing the judge or prosecutors or both alone.

Rules of evidence exist only in certain proceedings that vary widely by state. Judges often discard evidentiary rules.

Prosecutors often elect to try cases in juvenile court to reap the benefits of a loose procedural style and to avoid facing a jury.

Children facing serious criminal charges in juvenile court are the most vulnerable defendants in the American court system. Their rights are truncated, even as the intended benevolence of the system has faded.

The nation as a whole should join Chicago in its reconsideration of its juvenile justice system in the light of this tragedy.


Brian Maxey is a law intern with the Family Court Service Project at the Vera Institute of Justice, a nonprofit organization in New York City.

Pub Date: 9/14/98

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