64
The Court’s Effectiveness
in Protecting the Rights
of Juveniles in
Delinquency Cases
Janet E. Ainsworth
Abstract
Janet E. Ainsworth,
J.D., is associate professor of law at Seattle
University School of
Law, Tacoma, WA.
During the 1960s and 1970s, the Supreme Court issued a number of decisions guaranteeing certain procedural rights to juveniles. This article assesses the impact of these
decisions on the actual practices of the delinquency jurisdiction of the juvenile court.
Studies show that, by and large, the procedural mandates have not been met. A key
example is the fact that a significant percentage of juveniles still do not receive effective legal representation.
This article also explores the potential disadvantages to juveniles of no constitutional
right to a jury trial in juvenile court, waivers into the adult criminal court system, and
diversion programs. Because of the juvenile court’s resistance to reform, a number of
juvenile justice scholars are advocating the abolition of its jurisdiction over delinquency cases. The article concludes with various viewpoints on this current controversy.
H
istorically, the juvenile court system was premised on two fundamental beliefs about young people who violated the law.1 One was
that young people were both cognitively and morally undeveloped
so that they should not be considered fully responsible for their offenses.
The other was that young offenders were particularly malleable and therefore susceptible to moral and social rehabilitation. Thus, it was the mission
of the juvenile court to accomplish the rehabilitation of the juvenile lawbreaker and so prevent future criminal behavior. In furtherance of this mission, juvenile court adjudicatory hearings were, in contrast to criminal trials,
designed to be informal proceedings grounded in the well-established doctrine of parens patriae, which gave the state authority over the custody and
control of children who lacked proper parental care.2 The crux of the traditional juvenile court hearing was the disposition, or sentencing of the
youth, rather than the adjudication, or trial to determine the youth’s innocence or guilt. Therefore, hearings in juvenile court focused less on whether
The Future of Children THE JUVENILE COURT Vol. 6 • No. 3 – Winter 1996
65
the juvenile had violated the law on the occasion in question and more on
the social and moral condition of the offender and how best to reform his
or her deviant behavior. To that end, juvenile court judges had almost unlimited discretion both in adjudicatory practices and in dispositional sanctions.
Beginning with the In re Gault decision in 1967,3 however, the Supreme
Court began to impose procedural due process requirements on juvenile
court adjudication. These requirements were designed to ensure that juveniles accused of crimes would have an opportunity to contest the allegations
meaningfully. Among the procedural rights that Gault held were constitutionally necessary in juvenile court delinquency hearings were the right to
notice of the charges, the right to counsel, the right to cross-examine the
witnesses against the accused, and the privilege against compelled selfincrimination. Later cases expanded the list of mandated procedural guarantees to include the requirement that prosecutors prove delinquency
charges beyond a reasonable doubt4 and the prohibition against subsequent
retrial in adult criminal court under the double jeopardy clause of the Fifth
Amendment.5 As a result of these constitutional requirements, adjudication
in juvenile court came to more closely resemble ordinary criminal trials.
Influenced by the change in attitude by the Supreme Court, states enacted
statutes and court rules that went even further than the Supreme Court
explicitly required in conforming juvenile court practices and procedures to
those of criminal trials. With the notable exception of the absence of jury
trial in most jurisdictions, today the prescribed procedures for juvenile court
delinquency hearings parallel those for criminal trials of adult defendants.6
Nearly three decades have passed since In re Gault; it is time to assess the
legacy of the due process revolution in the delinquency jurisdiction of the
juvenile court. This article will examine the extent to which the procedural
due process protections mandated by case law and court rule are actually
observed in the day-to-day operations of the juvenile court and their effectiveness in protecting the substantive right of accused juveniles to fair and
impartial trials. It will also review two unique features of juvenile court case
processing—namely, waiver or transfer to adult criminal court and diversion
from the regular court process—and their impact on the rights of the juveniles involved. Finally, this article will explore arguments for and against the
abolition of the separate delinquency jurisdiction of the juvenile court.
Procedural Due Process
and the Contemporary
Juvenile Court
The due process revolution initiated by In re
Gault did radically transform the structural
nature of the juvenile courts. However, it
is not clear the degree to which this due
process revolution has changed the actual
day-to-day practices of the parties participating in juvenile court adjudication, many of
whom have been overtly hostile to the
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THE FUTURE OF CHILDREN – WINTER 1996
imposition of formal procedural due
process requirements.7 Studies of the juvenile courts conducted in the decade following the Gault decision concluded that the
procedural reforms of Gault and its progeny
have not been effective in guaranteeing
young offenders fair trials on the same terms
as those accorded to adult defendants.8
However, the results of these early studies
have been questioned on the theory that the
far-reaching changes mandated by Gault
would inevitably take time to implement
fully and that research in the first decade or
so after Gault would not accurately reveal the
extent of its ultimate success in transforming
juvenile court practice.
Nevertheless, more recent studies of the
juvenile court confirm the findings of the
earlier ones. Empirical and evaluative
research,9 as well as survey research, indicate
that the system today has failed to deliver the
procedural justice promised by Gault. For
example, in a 1994 survey of 100 juvenile
court judges, lawyers, and probation officers,10 a majority of the interviewed respondents, including nearly half of the juvenile
court judges, described judicial conduct that
they believed sometimes compromised the
Empirical and evaluative research, as well
as survey research, indicate that the system
today has failed to deliver the procedural
justice promised by Gault.
abilities of the juvenile defendants to get a
fair trial. This conduct included forcing
unprepared parties to proceed with trial or a
guilty plea, interrupting the lawyers’ witness
examinations with their own questions, and
cutting off the lawyers’ questioning. Twothirds of the surveyed court workers noted
that juvenile court judges often had knowledge before trial of the accused juvenile’s
prior criminal record and of the recommended disposition from the probation officer, and a majority of the respondents
thought that this knowledge created a bias
in the judge against the juvenile.10
Despite the requirement that guilt be
proven beyond a reasonable doubt, almost
half of the respondents maintained that
juvenile court judges found juveniles guilty
even when the evidence did not meet that
standard. More than a third of the surveyed
participants felt that juvenile court judges
admitted evidence that should have been
excluded under the rules of evidence.11
Many respondents observed that juvenile
court hearings were conducted too quickly,
that the atmosphere was not serious enough,
and that the treatment orientation of juvenile court personnel—including judges,
prosecutors, and defense counsel—interfered with the accused juvenile’s ability to
have a fair trial. Sanborn’s study, acknowledging that adult defendants do not always
receive mandated procedural justice,
nonetheless concluded that the procedural
deficiencies of the juvenile court system
were worse than those of the adult system.10
The Unfulfilled Promise of
the Right to Counsel
The procedural mandate in Gault which
held the greatest potential to change the
nature of the traditional juvenile court
process was the accused juvenile’s right to
the assistance of defense counsel to safeguard his or her legal interests.12 In spite of
this clear constitutional guarantee, however,
the right to counsel remains underrealized.
Numerous local studies across the nation
show large percentages of juveniles, particularly those in nonmetropolitan juvenile court
systems, waiving their right to counsel.13 For
example, a 1988 survey of rates of representation in six states found that a surprisingly
large percentage of juveniles go unrepresented by counsel.14 In three of the states surveyed, 53% or fewer of all juveniles charged
with crimes were represented by counsel.15
A major national study encompassing
urban, suburban, and rural court systems
found that, in one-third of these systems,
some significant proportion of juvenile
defendants waive their right to counsel.16
And, despite evidence suggesting that juveniles are generally less able than adults to
understand and effectively exercise their
constitutional rights,17 juvenile court judicial
inquiries into the adequacies of the waiver
process were frequently less thorough than
comparable inquiries in the adult criminal
system, or were absent altogether.16
Juveniles who are not represented by
counsel are not likely to exercise their other
The Court’s Effectiveness in Protecting the Rights of Juveniles in Delinquency Cases
procedural rights effectively. They are
severely hampered in their ability to contest
the charges against them, to challenge their
detention, and to propose alternatives to
the dispositions advocated by the prosecution.16 As the Supreme Court has noted,
“The right to representation by counsel is
not a formality. . . . It is of the essence of
justice.”18 Given the importance of the right
to representation, it is difficult to justify
allowing juveniles to waive this right under
any circumstances, even indulging in the
questionable assumption that they do so voluntarily and intelligently.19
Even when juveniles do have lawyers to
represent them, the quality of the advocacy
they receive is too often deplorable.20 For
example, a study of the New York juvenile
courts commissioned by the state bar criticized almost every aspect of the representation received in juvenile court, concluding
that only 4% of the lawyers in juvenile court
provided effective assistance of counsel to
their clients.21 Similarly, the 1994 Sanborn
study found that the vast majority of juvenile
court personnel thought that defense counsel often failed to display an appropriately
adversarial stance to zealously represent
their clients, adopting instead a more compliant, guardianlike role. Many of the interviewees expressed skepticism about the quality of legal defense available to juveniles,
finding public defenders too overworked
and private lawyers too inexperienced to
provide effective assistance of counsel.
Privately retained counsel came in for particularly harsh criticism: they were accused
of paying too much attention to the opinions of the clients’ parents, not taking the
juvenile proceedings seriously, and not fighting for their clients’ interests.10 Sanborn concluded that the parens patriae ideology, which
still prevails in juvenile court, contributes to
an atmosphere that makes it difficult for
young offenders to receive effective assistance of counsel.10
The comprehensive study recently completed under the auspices of the American
Bar Association’s Juvenile Justice Center16
likewise is strongly critical of the quality of
representation received by many juvenile
defendants. This study indicated that,
despite the good intentions and dedication
of most juvenile defenders, their ability to
represent their clients effectively was often
drastically undermined by huge caseloads,
which made it difficult to find time to meet
and consult with their clients, conduct factual investigations of the cases, prepare pretrial briefs and motions, and develop dispositional alternatives to secure confinement.
Training of juvenile defenders was seriously
inadequate: half of the surveyed defenders’
offices provided no training for newly hired
lawyers, more than three quarters had no
budget for ongoing training programs, and
nearly half lacked even a training manual for
lawyers practicing in juvenile court.16 The
overall atmosphere of the juvenile court, or
what the study termed the “courthouse cul-
Given the importance of the right to
representation, it is difficult to justify
allowing juveniles to waive this right
under any circumstances.
ture,” discouraged aggressive advocacy on
the part of juvenile defenders.16 Vigorous
defense advocacy was “not widespread, or
even very common.”22 The study concluded
that, although some juveniles do receive
high-quality legal representation, many currently do not have access to effective legal
representation in the juvenile court system.16
The Limits of the Due
Process Revolution—
Jury Trial
The Supreme Court in the Gault case
expressed skepticism that the ostensible benefits of the traditional juvenile court system
justified denial to juveniles of the basic procedural due process rights accorded to adult
defendants. Nevertheless, the Court pulled
back from enforcing complete procedural
parity between the adult and juvenile systems in McKeiver v. Pennsylvania,23 holding
that juveniles charged with crimes were not
entitled to jury trials. Although several states
do permit jury trials in juvenile court, a large
majority have opted to deny juveniles that
right.24
Denial of the right to trial by jury hurts
juveniles accused of crime in several ways.
First and foremost, juries acquit more readily than do judges, so juveniles are more likely to be convicted than if they could opt for
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jury trial.25 There are a number of reasons
juries are more likely to acquit than judges.
Judges, particularly in high-volume courts
such as juvenile court, hear hundreds, even
thousands, of cases a year, compared with
the one or two that jurors hear during their
service. Having to sit on so many cases,
judges may become less careful in weighing
the evidence and more cynical in evaluating
the credibility of the juveniles who appear
before them. This is all the more likely
when they know before trial of the juvenile’s
prior record, have heard the motion to suppress a confession, or have read the probation officer’s report on the juvenile’s social
background.
In addition, the parties in a jury trial have
an opportunity to exclude jurors whose personal biases may prevent them from fairly
trying the case. Jurors undergo voir dire
examination, in which the litigants may
Waiver is being used more and more frequently to transfer juveniles who are accused
of lesser offenses or who have little or no
prior record.
probe to determine whether any juror’s attitudes, experiences, or beliefs might adversely affect the way in which he or she would
hear the case. No comparable opportunity
exists to inquire into potential bias or prejudice by the judge in a bench trial.
Denial of the right to jury trial disadvantages juveniles even after the fact-finding
stage. In a jury trial, jurors must be explicitly
instructed in the law to be applied in the
case by the trial judge through written jury
instructions. Any error of law can be later
reviewed by an appellate court. However,
when a judge sits without a jury, she need
not expressly articulate her understanding
of the law; therefore, the appellate court has
no way of determining whether the juvenile
court judge misunderstood or misapplied
the law to the juvenile’s detriment. Thus,
depriving juveniles of jury trial puts them at
a double disadvantage compared with adult
defendants: they are more likely to be convicted at trial and are less likely to be able to
demonstrate an error of law on appeal. Even
those juveniles who do not go to trial suffer
from their inability to request a jury trial. As
many commentators have pointed out, most
defendants—adult and juvenile alike—do
not go to trial.26 Instead, they plead guilty. In
the course of plea bargaining, the possibility
that a defendant will elect to exercise the
constitutional right to a jury trial is a potent
bargaining chip, often the only one the
accused has.26
Transfer of Juveniles to the
Adult Criminal Justice
System
From its inception, the juvenile court system
recognized that some incorrigible juvenile
offenders might not respond to the rehabilitative dispositions utilized by the juvenile
court. Juvenile court judges have generally
had the discretionary power to waive27 juvenile court jurisdiction over such cases, thereby transferring them to the adult criminal
court system.28 This practice, seldom used in
the past,29 has increased dramatically in the
past two decades.30
Once reserved for the “worst” juveniles—
those with lengthy records charged with the
most serious offenses—waiver is being used
more and more frequently to transfer juveniles who are accused of committing lesser
offenses or who have little or no prior
record. Numerous studies show that property offenders outnumber violent offenders
among juveniles transferred into the adult
system.31 Furthermore, as many as 25% of
waived juveniles are first-time offenders.32
In addition to discretionary judicial
waivers, some jurisdictions now allow for
prosecutorial waivers in which the prosecutors themselves have the power to send certain youths directly to adult court without a
judicial hearing on the issue.33 The decision
to exercise this option is unreviewable and
final.34 In contrast, a judicial waiver in which
the judge decides to waive juvenile court
jurisdiction can, at least in theory, be
appealed. As a practical matter, however, the
judge’s ruling is final, since an appeal can
seldom be heard before the offender “ages
out” of the juvenile court system.
In recent years, many jurisdictions have
passed mandatory waiver statutes that
require the automatic transfer of certain
juveniles into the adult system.35 Typically,
The Court’s Effectiveness in Protecting the Rights of Juveniles in Delinquency Cases
these mandatory legislative waivers apply to
youths charged with serious or violent
felonies. In some states, these waivers automatically transfer accused juveniles over a
certain age to adult court.
One of the reasons for enacting mandatory waiver provisions was a belief that certain juveniles felt free to commit serious
offenses in the knowledge that they would
face only the relatively lenient sanctions of
the juvenile court. Automatic waiver for serious offenses, it was hoped, would deter such
offenders from committing the crimes in the
first place. However, in the late 1980s,
the first major empirical studies to test this
proposition found no change in the rate of
serious juvenile offending in the years following the adoption of automatic waiver
statutes. This finding suggests that the prosecution of juveniles as adults has little if any
deterrent effect on criminal behavior.36
Waiver procedures mandated by statutes
have greatly contributed to the escalation in
the rate of juvenile transfers. For example,
the number of juveniles tried as adults in
Cook County, Illinois, more than tripled
after Illinois enacted an automatic transfer
provision for certain serious offenses.37 The
number of juveniles transferred as a result of
mandatory waiver statutes is likely to continue to increase. Political pressure to get tough
on crime—often triggered by a highly publicized criminal act or episode—tends to
encourage legislators to expand the list of
crimes subject to mandatory waiver.38
Although the increasing waiver of juveniles into the adult criminal justice system is
premised on a desire to get tough with
young offenders, it is not clear whether juveniles tried as adults do, in fact, receive more
severe sanctions than they would have if
retained in the juvenile system. Several studies have determined that juveniles sentenced
as adults receive lesser sentences than actual
adult offenders with comparable records
and offenses.39 Some researchers have even
concluded that offenders waived into the
adult system not infrequently receive lighter
sanctions than they would have received had
they remained in juvenile court.40 One
explanation for this surprising finding is
that, because a growing proportion of transferred juveniles are property offenders, they
are the kind of offenders who typically get
probationary or short jail sentences in adult
court. For example, one 1989 study found
that the percentage of transferred juveniles
receiving probation as the sanction in adult
court rose from 40% in 1980 to 62% in 1988
as a result of the increasing number of transferred juvenile property offenders.41 In addition, conviction is more difficult in adult
court, so that a greater proportion of cases
transferred to adult court are dismissed or
end in acquittals.42 (For more information
about waivers, see the articles by Snyder and
by Greenwood in this journal issue.)
Diversion as an Alternative
to Formal Delinquency
Proceedings
The juvenile court’s procedures have
become increasingly formal in the decades
since the Gault decision. As a result, a
renewed interest has developed in the use of
diversion as a way to provide an informal
alternative to formal criminal processing of
cases involving relatively minor misbehavior
by youths.
The Juvenile Justice and Delinquency
Prevention Act of 197443 increased the
amount of federal funding available for the
development of local diversion programs.
While the details of their administration differ across locales, most diversion programs
are community-based programs operated by
nonprofit organizations and by juvenile
court probation and other governmental
It is not clear whether juveniles tried as
adults do receive more severe sanctions than
they would have if retained in the juvenile
system.
agencies. They provide social services and
supervision to at-risk youths without the stigma of their being adjudicated as a delinquent.44 They encourage compliance on the
part of the targeted youths with the implicit
threat that uncooperative youths might be
formally referred to the juvenile court for
more intrusive means of control.
Diversion programs have the potential to
be a cost-effective response to problems of
minor offending by youths because they
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avoid the considerable costs of court
resources and counsel required by formal
adjudication. Cost savings occur, however,
only when the diversion program is handling cases that otherwise would have been
processed in formal delinquency hearings.
Considerable evidence suggests that diversion actually operates to “widen the net” of
social control. In the absence of the diversion program, many diverted youths would
not have been subject to juvenile court processing at all.45 In any event, the very
strengths of diversion—informality, flexibility, and absence of constraints due to lack of
judicial review—raise pressing questions of
accountability and potential for arbitrariness
and abuse.
Is a Separate Juvenile
Court Still Justified?
Much has changed in juvenile court procedures and practice in the 30 years since the
Supreme Court observed that the young
offender receives “the worst of both worlds:
he gets neither the protections accorded to
adults nor the solicitous care and regenerative treatment postulated for children.”46
Nevertheless, as described above, juveniles
accused of crime still do not receive the same
caliber of procedural justice as do adult
defendants. Some juvenile court scholars are
skeptical about whether a separate juvenile
court system can ever achieve procedural justice equivalent to that of the adult court system. For example, Barry Feld concludes,
“After more than two decades of constitutional and legislative reform, juvenile courts
continue to deflect, co-opt, ignore, or absorb
ameliorative tinkering with minimal
institutional change.”47 Because of this
intractability of the juvenile court to meaningful reform, Feld and others advocate the
abolition of juvenile court delinquency jurisdiction and replacement by a unified criminal court system for all age defendants.47,48
To the extent that the procedural deficiencies of the juvenile court are a product
of a paternalistic parens patriae ideology that
continues to affect the behavior of lawyers
and judges in juvenile court, the abolition of
a separate juvenile court delinquency jurisdiction would help to eliminate these shortcomings. In particular, lawyers practicing in
a unified criminal court system would be less
likely to adopt the nonadversarial guardianship role in representing young clients, since
they would no longer have the supporting
rationale that the prosecution was, after all,
“just” a juvenile court case. Similarly, the
right to jury trial in a unified criminal court
system would prevent the kind of perfunctory trials that are all too common in juvenile
court.49 In a jury trial, the accused would be
found guilty only when the evidence showed
The Court’s Effectiveness in Protecting the Rights of Juveniles in Delinquency Cases
guilt of the offense charged and not because
the judge recognized the accused as a repeat
offender11 or thought that the accused could
benefit from the disposition proposed by the
state.49
Although the creation of a unified criminal court system would have significant procedural advantages for young offenders, it
would not be without its costs. Particularly
for violent crimes, sentences meted out in
the adult system are generally longer than
in the juvenile system so that a unified criminal court system might expose certain
young offenders to more severe sanctions
than those faced in a separate juvenile court
system. Those who advocate the creation of
a unified criminal court system have consequently urged that youth and immaturity be
considered a mitigating factor in sentencing.6,37 In the current get-tough political climate, it is by no means certain that such mitigation would occur.
A less tangible, but no less real, negative
consequence of abolishing the delinquency
jurisdiction of the juvenile court would be
the loss of its perceived symbolic import.
Because the juvenile court was based on the
idea that juvenile offenders were uniquely
salvageable, the abolition of juvenile court
might be seen as a recognition that society
no longer believes it can save juveniles or,
indeed, that they are even worth saving. If
the abolition of the delinquency jurisdiction
of the juvenile court were to be seen as a sign
of despair, then the potential benefits of a
unified criminal court system would be
unlikely to be realized.
Conclusion
The future of the juvenile court is uncertain,
given its continued procedural shortcomings, and it is unclear whether reform or
abolition offers the greatest hope of finally accomplishing the procedural justice
promised by Gault. What is clear is that
achieving procedural justice for juveniles
means taking seriously the challenges of providing fair processes and adequate resources
for adjudicating criminal charges and of
developing dispositional practices that serve
the needs of offenders and of society at large.
In the end, this means rethinking the nature,
not only of the juvenile justice system, but
also of the criminal justice system as a whole.
1. Empey, L.T. The social construction of childhood and juvenile justice. In The future of childhood and juvenile justice. L.T. Empey, ed. Charlottesville: University Press of Virginia, 1979,
pp. 138–74. Compare Mack, J.W. The juvenile court. Harvard Law Review (1909) 23:104–22.
2. For a historical account of the progression of the parens patriae doctrine from a chancery
court principle dealing with parentless children to the justification for expansive juvenile
court jurisdiction over children, see Rendleman, D.R. Parens patriae: From chancery to the
juvenile court. South Carolina Law Review (1971) 23:205–59.
3. In re Gault, 387 U.S. 1 (1967).
4. In re Winship, 397 U.S. 358 (1970).
5. Breed v. Jones, 421 U.S. 519 (1975).
6. For a comparison of procedural statutes and court rules applicable in juvenile court delinquency adjudication with those applicable in criminal court trials, see Ainsworth, J.E.
Re-imagining childhood and reconstructing the legal order: The case for abolishing the juvenile court. North Carolina Law Review (1991) 69:1083–133, notes 156–63.
7. See, for example, Springer, C.E. Rehabilitating the juvenile court. Notre Dame Journal of Law,
Ethics and Public Policy (1991) 5:397–420. Judge Springer is sharply critical over what he calls
“Gaultamania,” which he defines as the criminalization and overformalization of the juvenile
court. The cause of “Gaultamania,” as he sees it, is the appointment of counsel to contest the
charges against juveniles, who, he notes, are mostly guilty in any event. See also Bogen, D.O.
Beating the rap in the juvenile court. Juvenile and Family Court Journal (1980) 31:19, criticizing
defense lawyers who are more intent on securing acquittals than on cooperating with the
court in rehabilitation efforts.
8. Bortner, M.A. Inside a juvenile court: The tarnished ideal of individualized justice. New York: New
York University Press, 1982; Finkelstein, M.M., Weiss, E., Cohen, S., et al. Prosecution in the juvenile court: Guidelines for the future, Washington, DC: U.S. Department of Justice, Law
Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal
Justice, 1973; Walter, J.D., and Ostrander, S.A. An observational study of a juvenile court.
Juvenile and Family Court Journal (1982) 33:53–69.
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9. Feld, B.C. Violent youth and public policy: A case study of juvenile justice law reform.
Minnesota Law Review (1995) 79:965–1128. Professor Feld, without doubt the most prolific legal
scholar of the juvenile justice system, concludes that many young offenders today “do not
receive even the limited procedural justice that Gault envisioned. . . . [M]ost states do not provide youths with either procedural safeguards equivalent to those of adult criminal defendants
or with special procedures that more adequately protect them from their own immaturity.”
10. Sanborn, J.B. Remnants of parens patriae in the adjudicatory hearing: Is a fair trial possible in
juvenile court? Crime & Delinquency (1994) 40:599–615. This study surveyed the judges,
lawyers, and probation officers of one urban, one suburban, and one rural juvenile court system within the same state.
11. See note no. 10, Sanborn, p. 604. Sanborn observed that most of the respondents who felt
that judges applied reduced standards for conviction in juvenile court also believed that they
did so from a desire to “help the children.”
12. Prior to Gault, very few juveniles were represented by counsel in juvenile court hearings. One
commentator put the figure at fewer than 5%. Barrett, D.R., Brown, W.J.T., and Cramer, J.M.
Juvenile delinquents: The police, the state courts, and individualized justice. Harvard Law
Review (1966) 79:775–810.
13. U.S. General Accounting Office, Report to the Committee on the Judiciary, U.S. Senate, and
the Committee on Economic Opportunity, U.S. House of Representatives. Juvenile justice:
Representation rates varied as did counsel’s impact on court outcomes. GAO/GGD-95-139. Washington,
DC: GAO, 1995, pp. 14–15 (government-sponsored survey of 15 selected states finding varying
rates of representation, with rural youths less likely to have counsel than urban youths—for
example, in Pennsylvania rural offenders were twice as likely to be unrepresented as urban
offenders, and Nebraska’s rural offenders were four times more likely to be unrepresented
than its urban offenders); Clarke, S.H., and Koch, G.G. Juvenile court: Therapy or crime control, and do lawyers make a difference? Law and Society Review (1980) 14:263–308 (finding
22.3% of juveniles in Winston-Salem and 45.8% in Charlotte, North Carolina, represented by
lawyers); see note no. 8, Bortner (finding 41.8% represented in an urban midwestern county);
Feld, B.C. Justice by geography: Urban, suburban, and rural variations in juvenile justice
administration. Journal of Criminal Law and Criminology (1991) 82:156–210 (finding 45.3% represented in Minnesota, with rural juveniles far less likely to have counsel than urban offenders); Aday, D.P. Court structure, defense attorney use, and juvenile court decisions. Sociological
Quarterly (1986) 27:107–19 (finding 26.2% and 38.7% represented in two southeast juvenile
courts); see also note no. 8, Walter and Ostrander (finding 32% represented in a large northern city). But see note no. 10, Sanborn, p. 603 (finding that, in the three juvenile court systems
he studied, nearly all juvenile defendants were represented by counsel).
14. Feld, B.C. In re Gault revisited: A cross-state comparison of the right to counsel in juvenile
court. Crime & Delinquency (1988) 34:393–424. The six states surveyed were California,
Minnesota, Nebraska, New York, North Dakota, and Pennsylvania. See also Feld, B.C. The
right to counsel in juvenile court: An empirical study of when lawyers appear and the difference they make. Journal of Criminal Law and Criminology (1989) 79:1185–346.
15. See note no. 14, Feld, In re Gault revisited, p. 401. The exact percentages were as follows:
52.7% in Nebraska, 47.7% in Minnesota, and 37.5% in North Dakota.
16. Puritz, P., Burrell, S., Schwartz, R., et al. A call for justice: An assessment of access to counsel and
quality of representation in delinquency proceedings. Washington, DC: American Bar Association,
1995. This study, a joint project of the American Bar Association, Juvenile Justice Center, the
Youth Law Center, and the Juvenile Law Center, consisted of a national survey of public
defender offices, court-appointed lawyers, law school clinics, and children’s law centers, as
well as on-site visits and interviews with juvenile court personnel in 10 selected jurisdictions.
17. See Grisso, T. Juveniles’ waiver of rights: Legal and psychological competence. New York: Plenum
Press, 1981, pp. 191–92.
18. Kent v. United States, 383 U.S. 541, 561 (1966).
19. For these reasons, the juvenile court standards proposed by the Institute of Judicial
Administration, American Bar Association recommended that the right to counsel for juveniles be nonwaivable. Institute of Judicial Administration, American Bar Association. Juvenile
justice standards: Pretrial court proceedings. Cambridge, MA: Ballinger, 1980, Standard 6.1(a). The
recent ABA-sponsored study of juvenile court practices and procedures echoed this recommendation. See also note no. 16, Puritz, Burrell, Schwartz, et al., p. 69.
20. See note no. 13, Clarke and Koch, pp. 297–300, and note no. 8, Finkelstein, Weiss, Cohen,
et al., pp. 40–42, 51–62; see also Flicker, B. Providing counsel for accused juveniles. New York:
The Court’s Effectiveness in Protecting the Rights of Juveniles in Delinquency Cases
Institute of Judicial Administration, 1983; Knitzer, J., and Sobie, M. Law guardians in New York
state: A study of the legal representation of children. Albany: New York State Bar Association, 1984;
Ferster, E.Z., Courtless, T.F., and Snethen, E.N. The juvenile justice system: In search of the
role of counsel. Fordham Law Review (1971) 39:375–412.
21. Knitzer, J., and Sobie, M. Law guardians in New York State: A study of the legal representation of children. Albany: New York State Bar Association, 1984.
22. See note no. 16, Puritz, Burrell, Schwartz, et al., pp. 41, 51. For example, one lawyer noted
that, in her 16 years of juvenile court practice, she could count on one hand the number of
trials she had conducted.
23. See 403 U.S. 528 (1971) (plurality opinion).
24. States permitting juveniles to elect jury trials include Alaska, Colorado, Kansas (for felonies
only), Michigan, Minnesota (for extended jurisdiction cases), Montana, New Mexico,
Oklahoma, Tennessee, Texas, West Virginia, Wisconsin, and Wyoming.
25. Kalven, H., and Zeisel, H. The American jury. Chicago: University of Chicago Press, 1966, pp.
55–81. Kalven and Zeisel’s landmark empirical study of the jury looked at thousands of actual
cases, comparing jury verdicts to “shadow verdicts” that the presiding judges would have given
had the trials been to the court. They found that juries failed to convict twice as frequently as
judges. See also Greenwood, P., Lipson, A., Abrahamse, A., et al. Youth crime and juvenile justice
in California. Santa Monica, CA: RAND Corporation, 1983, pp. 30–31. A study of conviction
rates in California confirmed that, for similar crimes, conviction rates are higher in juvenile
court bench trials than in the adult court with its preponderance of jury trials.
26. Rosenberg, I.M. Leaving bad enough alone: A response to the juvenile court abolitionists.
Wisconsin Law Review (1993), pp. 163–85.
27. Terminology used for this practice varies from jurisdiction to jurisdiction, including such
terms as transfer, bindover, certification, remand, and declination, as well as waiver.
28. Fritsch, E., and Hemmens, C. Juvenile waiver in the United States 1979–1995: A comparison
and analysis of state waiver statutes. Juvenile and Family Court Journal (1995) 46:17–35.
29. For an exhaustive treatment of both the historical practice and contemporary developments
in judicial waiver of juvenile court jurisdiction, see Feld, B.C. The juvenile court meets the
principle of the offense: Legislative changes in juvenile waiver statutes. Journal of Criminal Law
and Criminology (1987) 78:471–533. For a compendium of the state statutes controlling the
use of judicial waiver, see note no. 28, Fritsch and Hemmens, pp. 24–28.
30. Feld, B.C. Bad law makes hard cases: Reflections on teen-aged ax-murderers, judicial activism,
and legislative default. Journal of Law and Inequality (1990) 8:1–101; Champion, D.L. Teenage
felons and waiver hearings: Some recent trends. Crime & Delinquency (1989) 35:577–85;
Bishop, D.M., and Frazier, C.E. Transfer of juveniles to criminal court: A case study and analysis of prosecutorial waiver. Notre Dame Journal of Law, Ethics and Public Policy (1991) 5:281–302.
31. See, for example, Gillespie, L.K., and Norman, M.D. Does certification mean prison: Some
preliminary findings from Utah. Juvenile and Family Court Journal (Fall 1984) 35:23–34;
Osbun, L.A., and Rode, P.A. Prosecuting juveniles as adults: The quest for “objective” decisions. Criminology (1984) 22:187; Bortner, M.A. Traditional rhetoric, organizational realities:
Remand of juveniles to adult court. Crime & Delinquency (1986) 32:53–73; see also note no.
30, Champion, pp. 581–82, Feld, p. 30, and Bishop and Frazier, p. 296. However, see
Houghtalin, M., and Mays, G.L. Criminal disposition of New Mexico juveniles transferred
to adult court. Crime & Delinquency (1991) 37:393–407, where a study of waiver in New
Mexico found that the procedure was rarely used there and was reserved mainly for violent
offenders.
32. See note no. 30, Bishop and Frazier, p. 296. For other studies finding that many waived juveniles lacked significant prior criminal records, see note no. 31, Bortner, and Osbun and Rode.
33. For an unfavorable evaluation of prosecutorial waiver, see note no. 30, Bishop and Frazier.
For a more positive assessment of this practice, see McCarthy, F.B. The serious offender and
juvenile court reform: The case for prosecutorial waiver of juvenile court jurisdiction. St. Louis
University Law Journal (1994) 38:629–71.
34. See Cox v. United States, 473 F.2d 334 (4th Cir.), cert. denied 414 U.S. 869 (1973) (holding that
prosecutorial decision to charge a juvenile in adult court was not subject to appellate review).
35. See note no. 28, Fritsch and Hemmens, pp. 29–31 (canvassing state statutes providing for
automatic waiver of juvenile court jurisdiction).
36. Jensen, E.L., and Metsger, L.K. A test of the deterrent effect of legislative waiver on violent
juvenile crime. Crime & Delinquency (1994) 40:96–104; Singer, S.I., and McDowall, D.
73
74
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Criminalizing delinquency: The deterrent effects of the New York juvenile offender law. Law
and Society Review (1988) 22:521–35.
37. Feld, B.C. Criminalizing the juvenile court. In Crime and justice: An annual review of research.
Vol. 17. M. Tonry, ed. Chicago: University of Chicago Press, 1993, pp. 260–65.
38. Zimring, F.E. The treatment of hard cases in American juvenile justice: In defense of discretionary waiver. Notre Dame Journal of Law, Ethics and Public Policy (1991) 5:267–80.
39. See note no. 31, Gillespie and Norman; see also Eiger, J.P. Punishing youth homicide offenders in Philadelphia. Journal of Criminal Law and Criminology (1981) 72:1072–93.
40. See, for example, Kinder, K., Veneziano, C., Fichter, M., et al. A comparison of the dispositions of juvenile offenders certified as adults with juvenile offenders not certified. Juvenile and
Family Court Journal (1995) 46:37–41. This study examined a sample of juvenile defendants in
St. Louis, Missouri, in 1993. After controlling for factors such as age, race, seriousness of the
offense, and prior record, this study found that a juvenile was more than three times more
likely to be incarcerated in juvenile court than in adult court (6.3% of juveniles waived into
adult court were incarcerated, 20.7% of those remaining in juvenile court were sentenced to
confinement).
41. See note no. 30, Champion. Other surveys have produced similar statistics. See, for example,
note no. 31, Bortner; see also Greenwood, P. Differences in criminal behavior and court
responses among juvenile and young adult defendants. In Crime and justice: An annual review of
research. Vol. 7. M. Tonry and N. Morris, eds. Chicago: University of Chicago Press, 1986;
Hamparian, D.M., Estep, L.K., Muntean, S.M., et al. Youth in adult courts: Between two worlds.
Washington, DC: Office of Juvenile Justice and Delinquency Prevention, 1982; note no. 31,
Gillespie and Norman. But see note no. 31, Houghtalin and Mays, finding that juveniles tried
as adults in New Mexico receive longer sentences than they would have in juvenile court. This
result is consistent with their determination that waiver in New Mexico is infrequently used
and largely confined to serious violent offenders. In this regard, waiver practice in New
Mexico would appear to fly in the face of the national trend toward more expansive and liberal use of the waiver procedure.
42. See note no. 40, Kinder, Veneziano, Fichter, et al., pp. 39–41, noting that 36% of cases transferred to adult court had been taken under advisement, and an additional 29.7% were in
pending status, and that most of these cases would ultimately be dismissed. In contrast, nearly
all of the cases retained in juvenile court had been fully adjudicated, with 26% dismissed.
43. See 42 U.S.C. §§ 5601–5785.
44. Hinshaw, S.A. Juvenile diversion: An alternative to juvenile court. Journal of Dispute Resolution
(1993), pp. 305–13.
45. Rubin, H.T. Juvenile justice: Policy, practice and law. 2d ed. New York: Random House, 1985, pp.
179–85; Decker, S.H. A systematic analysis of diversion: Net widening and beyond. Journal of
Criminal Justice (1985) 13:206–16; Bynum, T.S., and Greene, J.R. How wide the net? Probing
the boundaries of the juvenile court. In Juvenile justice policy: Analyzing trends and outcomes. S.H.
Decker, ed. Beverly Hills, CA: Sage, 1984, pp. 129–30; Klein, M.W. Deinstitutionalization and
diversion of juvenile offenders: A litany of impediments. In Crime and justice: An annual review
of research. Vol. 1. M. Tonry and N. Morris, eds. Chicago: University of Chicago Press, 1979;
Polk, K. Juvenile diversion: A look at the record. Crime & Delinquency (1984) 30:648–59.
46. Kent v. United States, 383 U.S. 541, 566 (1966).
47. Feld, B.C. The transformation of the juvenile court. Minnesota Law Review (1991) 75:691–725.
48. Ainsworth, J.E. Youth justice in a unified court: A response to critics of juvenile court abolition. Boston College Law Review (1995) 36:927–51; see also note no. 6, Ainsworth; Federle, K.H.
The abolition of the juvenile court: A proposal for the preservation of children’s legal rights.
Journal of Contemporary Law (1990) 16:23–51.
49. See note no. 10, Sanborn, p. 613, noting that jury trials would discourage “sloppy performances by judges and defense attorneys perpetuated within a private, laissez-faire atmosphere” of juvenile court bench trials.