Friday, October 18, 2013
Martin R. Gardner (University of Nebraska College of Law) has posted Punitive Juvenile Justice and Public Trials by Jury: Sixth Amendment Applications in a Post-McKeiver World (Nebraska Law Review, Vol. 91, 2012) on SSRN. Here is the abstract:
Juvenile courts were originally created as non-punitive, rehabilitative alternatives to the criminal justice system. As a result, the proceedings were not adversarial in nature, and were not governed by the procedural protections of due process available in adult criminal courts. Recently, however, the focus of the juvenile justice system has shifted from rehabilitation towards punishment, applying most of the procedural protections constitutionally required in adult criminal cases with the exception of the Sixth Amendment right to a public trial (to those who are accused of punishable offenses) and the right to a jury trial (to those facing punishment possibly exceeding six months of incarceration). The courts, appealing to the rehabilitative nature of juvenile courts, have, with rare exceptions, denied public and jury trials to juveniles facing punitive sanctions. This article argues that, unlike rehabilitative dispositions, punitive sanctions require recognition of the Sixth Amendment right to a public trial by jury for juveniles exposed to punishment. The article proposes a conceptual framework for differentiating between punitive and rehabilitative dispositions that would enable the courts to accurately determine when the Sixth Amendment jury and public trial rights should apply. Although some commentators argue that recognition of such rights belies the theoretical basis for retaining a juvenile system separate from adult criminal courts, this article argues that the emergence of punitive juvenile justice, with full procedural protections, actually provides a new rationale for retaining a separate juvenile court system.