BUT I WAS JUST A KID!: DOES USING
JUVENILE ADJUDICATIONS TO ENHANCE
ADULT SENTENCES RUN AFOUL
OF APPRENDI V. NEW JERSEY?
Douglas M. Schneider*
INTRODUCTION
Prior to 1964, a defendant in juvenile court possessed few of the
procedural protections commonplace in adult proceedings.1 Courts
considered procedural protections unnecessary because the juvenile
received a disposition in their best interest as opposed to a punishment.2
Seventy years earlier, a “deal” had been struck on behalf of juvenile
defendants in which juveniles sacrificed certain procedural protections
in exchange for the State’s rehabilitative, rather than retributive,
adjudication.3 By the late 1960s, it became clear that the absence of
procedural protections exposed the juvenile to an unpredictable justice
system that fell short of its rehabilitative goals.4
Responding to inadequacies in the juvenile system, the Supreme
Court mandated that juveniles receive certain due process rights.5
* Symposia Editor, Cardozo Law Review, J.D. Candidate (June 2005). I would like to thank
Professor Kyron Huigens for reading, editing, and commenting on all my drafts. I would also
like to thank my colleagues who helped me work towards publication. This includes my Articles
Editor, Michael Reisman, my Supervising Editor, Judah Frogel, Senior Notes Editor Brian Bank,
and Editor-In-Chief Aaron Wright. In addition, it is necessary to thank former Executive Editor
Ian Dumain for his comments on a prior draft, as well as former Notes Editors Seth Grossman
and Andrew Borteck. Most of all I wish to thank my family for always supporting me and Joni
Kletter for always providing me with that extra spark.
1 In re Gault, 387 U.S. 1, 4-11 (1967). A juvenile had no right to an attorney, no
presumption of innocence, no right against self-incrimination, no right to present and crossexamine witnesses, and no right to appeal. For further discussion, see infra notes 39-49 and
accompanying text.
2 THOMAS BERNARD, THE CYCLE OF JUVENILE JUSTICE 91 (1992).
3 See infra Part I.A. for an elaboration on this history.
4 SUSAN GUARINO-GHEZZI & EDWARD J. LOUGHRAN, BALANCING JUVENILE JUSTICE 90
(1996).
5 See Gault, 387 U.S. at 1 (holding that a juvenile has the right to fair notice of the charges
against him, the right to counsel, the right to testimony from sworn witnesses, the right to
confront and cross examine witnesses, and the right against self-incrimination); In re Winship,
397 U.S. 358, 368 (1970) (holding that even juvenile adjudications are subject to the requirement
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However, the Court stopped short of offering juveniles the full panoply
of due process rights accorded to adult criminal defendants.6 In
McKeiver v. Pennsylvania, the Supreme Court found no right to a jury
trial in juvenile adjudications.7 The Court reasoned that the right to a
jury trial would undermine the distinct rehabilitative objectives of the
juvenile justice system and feared that providing juveniles with those
rights essentially rendered the juvenile justice system defunct.8
However, as legislatures increasingly add collateral consequences
for defendants with juvenile records, the lack of a right to a jury trial in
juvenile adjudications becomes an area of growing concern. Many
federal and state statutes provide for sentence enhancements for repeat
offenders, including those convicted in juvenile adjudications.9 For
example, the Armed Career Criminal Act (ACCA)10 mandates a fifteenyear minimum sentence for anyone who violates the “felon in
possession statute”11 and was also convicted of three previous violent
felonies or drug offenses. The ACCA states that, “the term ‘conviction’
includes a finding that a person has committed an act of juvenile
delinquency involving a violent felony.”12
The Supreme Court’s ruling in Apprendi v. New Jersey13 calls into
of proof beyond a reasonable doubt).
6 McKeiver v. Pennsylvania, 403 U.S. 528 (1971) (holding that juveniles do not have a right
to a jury trial because such a right would undermine the separate objectives of the juvenile court
system).
7 Id. at 545.
8 Id. at 547.
9 For an excellent list of statutes that include a sentence enhancement provision, see
Appendix B in Nancy J. King & Susan R. Klein, Essential Elements, 54 VAND. L. REV. 1467,
1547 (2001). Examples include 7 U.S.C. § 2024(b) (2000) (federal food stamp fraud); 18 U.S.C.
§ 248(b) (2000) (serious bodily injury or death resulting from violation of freedom to access to
abortion clinics); 18 U.S.C. § 1503(b) (2000) (increased penalty based on seriousness of injury
when attempting to influence a juror). A recent sampling of state enhancement statutes can be
found at Dep’t of Justice, State Court Organization 1998, tbl. 44, Sentencing Statutes: Key
Definitions and Provisions For Sentence Enhancement (June 2000), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/sco98.pdf (last visited Jan. 19, 2005).
10 18 U.S.C. § 924 (2000).
11 Id. at § 922. The “Felon in Possession” statute criminalizes possession of a firearm by a
felon, a fugitive from justice, an unlawful drug user, or one who falls into several other
categories.
12 Id. at § 924(e)(2)(C).
13 530 U.S. 466 (2000). Apprendi dealt with a New Jersey state statute described as a “hate
crimes” statute. The statute provided for additional jail time if the judge found that a defendant
committed a crime with the purpose to intimidate an individual or group because of race, color,
gender, handicap, religion, sexual orientation, or ethnicity. Id. at 469. It has been the subject of
much scholarly commentary, including: B. Patrick Costello, Jr., Apprendi v. New Jersey: ‘Who
Decides What Constitutes a Crime?’ An Analysis of Whether a Legislature is Constitutionally
Free to ‘Allocate’ an Element of an Offense to an Affirmative Defense or a Sentencing Factor
Without Judicial Review, 77 NOTRE DAME L. REV. 1205 (2002) (arguing that a judge should be
able to increase a sentence based on a mere preponderance of the evidence); Kyron Huigens,
Solving the Apprendi Puzzle, 90 GEO. L.J. 387 (2002) (arguing that the court can eliminate
confusion over Apprendi by constitutionalizing aspects of criminal law); King & Klein, supra
2005]
BUT I WAS JUST A KID!
839
question the constitutionality of including juvenile convictions as a
predicate offense for sentence enhancement under the ACCA. The
Apprendi court held that any factor that enhances a sentence above the
statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt.14 The Court explicitly exempted prior convictions
from the jury presentment requirement because such convictions met
the rigorous procedural protections guaranteed by the Due Process
clause, such as the right to a jury trial. Since most state juvenile courts
fail to provide minors with the right to a jury trial, after Apprendi a
question emerges as to the constitutionality of the ACCA’s sentence
enhancements based on juvenile convictions.
The issue lacks
resolution, as Federal Courts of Appeals reach divergent conclusions.
In United States v. Tighe,15 the United States Court of Appeals for
the Ninth Circuit limited Apprendi’s application to prior convictions
resulting from proceedings that afforded a jury trial and required proof
beyond a reasonable doubt, thereby excluding non-jury juvenile
adjudications.16 On the other hand, the Eighth Circuit in United States
v. Smalley17 held that “juvenile adjudications, like adult convictions, are
so reliable that due process of law is not offended by [the Apprendi]
exemption.”18 Likewise, in United States v. Lester Jones,19 the Third
Circuit held that “the Supreme Court does not require providing
juveniles with the right to a jury trial. It follows that when a juvenile is
adjudicated guilty beyond a reasonable doubt in a bench trial that
note 9, (developing a multi-factor test to help courts determine what is an “element” of an
offense); Robert S. Lewis, Preventing the Tail From Wagging the Dog: Why Apprendi’s Bark is
Worse Than its Bite, 52 CASE W. RES. L. REV. 599, 600 (2001) (arguing that Apprendi was not a
surprising decision in light of the Court’s clear precedents).
Apprendi’s holding was strengthened by the Court’s decision in Blakely v. Washington,
124 S.Ct. 2531 (2004). Blakely held that Apprendi means that a judge may base a sentence solely
upon the facts admitted in a guilty plea or found by a jury.
Most recently, the Supreme Court decided two consolidated cases United States v. Booker
(No. 04-104), and United States v. Fanfan (No. 04-105), 2005 U.S. Lexis 628 (Jan. 12, 2005).
The Court held that the Federal Sentencing Guidelines violated defendants’ constitutional right to
a jury trial by giving judges the power to make factual determinations that could increase a
defendant’s sentence. The Court, however, stopped short of declaring the Guidelines
unconstitutional. Instead, the Court ruled that the Guidelines should be advisory instead of
mandatory. This likely lessens the impact of sentence enhancement statutes like the ACCA and
those statutes cited supra note 9. While it is too early to know what the full impact of Booker and
Fanfan will be, they again underscore the importance that the Supreme Court places on the right
to a jury trial.
14 Apprendi, 530 U.S. at 490.
15 266 F.3d 1187, 1194 (9th Cir. 2001) (holding that juvenile adjudications are not prior
convictions under Apprendi); see also infra notes 109-30 and accompanying text.
16 See Tighe, 266 F.3d at 1194.
17 294 F.3d 1030 (8th Cir. 2002) (holding that juvenile convictions are prior convictions
under Apprendi); see also infra notes 131-42 and accompanying text.
18 Smalley, 294 F.3d at 1033.
19 332 F.3d 688 (3d Cir. 2003) (holding that juvenile convictions are prior convictions under
Apprendi); see also infra notes 143-45 and accompanying text.
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affords all the due process protections that are required.”20
Accordingly, in the Eighth and Third Circuits, a juvenile conviction
serves as a prior offense for sentence enhancement purposes21 under the
ACCA.
This Note will address the aforementioned circuit split, exploring
the public policy considerations and legal implications of the respective
courts’ holdings. Part I will provide a history of the juvenile justice
system, focusing on the historical rationale for premising the juvenile
system on rehabilitation rather than punishment. Part II will then
summarize the history and background of ACCA, examining Congress’
inclusion of juvenile adjudications. Part III will focus on Apprendi,
analyzing the court’s treatment of recidivism,22 and consider other cases
that explain the recidivism exemption from the jury presentment
requirement. Part IV will describe, in detail, the different approaches
taken by the federal courts of appeals when deciding whether Apprendi
precludes the use of juvenile convictions to enhance a subsequent adult
sentence.
Finally, in Part V, this Note will analyze the circuit split, arguing
that the holdings of the Eighth and Third Circuits violate the “deal”
struck between juvenile defendants and the State in which juveniles
surrender certain procedural protections in exchange for rehabilitation.
Although the Supreme Court has stated that juveniles need not be
granted a right to a jury trial to receive a reliable adjudication in the
unique rehabilitative setting of the juvenile court, it does not
correspondingly follow that the reliability of juvenile adjudications
allows for adult sentence enhancement under Apprendi. Reading
Apprendi to exempt only those prior convictions obtained through a
proceeding with full due process prevents legislatures from denying
juveniles jury trials under the guise of rehabilitation only to later count
such adjudications against juvenile offenders in the name of
punishment. Such an interpretation does not prevent states from
20
21
Id. at 696.
Throughout this Note, I will refer to a conviction that can be used to enhance a sentence as
an “enhancement offense.”
22 Recidivism is defined in THE OXFORD ENGLISH DICTIONARY (2d ed. 1989) as “the habit of
relapsing into crime” and has been a popular subject for legal scholarship in the criminal justice
field. For a quick view of the vast array of recidivism issues see generally Dess Aldredge
Grangetto, Reducing Recidivism by Substance Abusers Who Commit Drug and Alcohol Related
Crime, 10 J. CONTEMP. LEGAL ISSUES 383 (1999) (discussing recidivism and drug and alcohol
related crimes); Richard Hamill, Recidivism of Sex Offenders: What You Need To Know, 15-WTR
CRIM. JUST. 24 (2001) (discussing recidivism among sex offenders); Cheri Panzer, Reducing
Juvenile Recidivism Through Pre-Trial Diversion Programs: A Community’s Involvement, 18 J.
JUV. L. 186 (1997) (discussing juvenile recidivism); Stacey L. Pilato, New Jersey’s No Early
Release Act: A Band-Aid Approach to Victims’ Pain and Recidivism?, 22 SETON HALL LEGIS. J.
357 (1997) (discussing recidivism and parole); Belinda Wiggins, Stalking Humans: Is There a
Need for Federalization of Anti-Stalking Laws in Order to Prevent Recidivism in Stalking?, 50
SYRACUSE L. REV. 1067 (2000) (discussing recidivism and anti-stalking laws).
2005]
BUT I WAS JUST A KID!
841
remaining tough on crime, as some might argue. Rather, to mitigate the
perception of being weak on crime, states could utilize juvenile waivers,
allowing juveniles who pose the greatest threat to the community to be
tried in criminal court where their convictions would be constitutionally
acceptable as a sentence enhancement factor under Apprendi. The vast
majority of juvenile offenders would be left in the hands of the juvenile
justice system, ideally receiving a disposition in their best interest.
I.
THE ORIGINS AND TRANSFORMATION OF THE JUVENILE JUSTICE
SYSTEM
A.
The Creation of the Juvenile Justice System
The concept of a juvenile justice system separate from the criminal
justice system originated in the late 1890s when the Progressive
Reformers23 suggested changes to the existing legal system. At the
time, the system treated children like adult criminals, subjecting them to
harsh punishments, and even jailing them alongside adult prisoners.24
Troubled by the system, reformers envisioned a specialized court that
would help children instead of simply punishing them.25 Their first
success occurred when the Illinois legislature passed “A Law for the
Care of Dependent, Neglected, and Delinquent Children,” which
became the national juvenile justice model.26 The law created a
specialized legal system for children and restricted the jailing of
23 The Progressive Reformers of the 1890s led the movement against child labor and
promoted the women’s suffrage campaign. They won minimum wage and maximum hours laws
for women workers, public health programs for pregnant women and babies, improved
educational opportunities for both children and adults, and passed an array of social welfare
measures at the local, state, and federal levels. Robyn Muncy, Women in the Progressive Era,
available at http://www.cr.nps.gov/nr/travel/pwwmh/prog.htm (last visited Jan. 19, 2005).
24 IRA M. SCHWARTZ, (IN)JUSTICE FOR JUVENILES: RETHINKING THE BEST INTERESTS OF
THE CHILD 150 (1989). Today, it is not uncommon for minors to be tried as adults. See, e.g.,
Sara Sun Beale, Still Tough on Crime: Prospects for Restorative Justice in the United States,
2003 UTAH L. REV. 413, 415 (2003) (“More juveniles than ever before are being charged and
tried in criminal court.”); Comment, When the Punishment Cannot Fit the Crime: The Case for
Reforming the Juvenile Justice System, 52 ARK. L. REV. 563, 587 (1999) (“Younger juveniles are
being tried as adults more frequently.”). Also, the United States remains one of the only
countries that allows children to be subject to the death penalty. See Domingues v. Nevada, 961
P.2d 1279, 1280-81 (Nev. 1998) (Springer, J., dissenting) (noting that the United States is one of
only six countries that has imposed the death penalty on a minor since 1990). The Supreme Court
recently heard oral argument on whether it is constitutional to execute a minor. Roper v.
Simmons, 124 S. Ct. 1171 (2004); see Linda Greenhouse, Justices Consider Executions of Young
Killers, N.Y. TIMES, Oct. 14, 2003, at A1.
25 SCHWARTZ, supra note 24, at 151.
26 By 1917, similar legislation was in effect in all but three states. See ANNE RANKIN
MAHONEY, JUVENILE JUSTICE IN CONTEXT 18-19 (1987).
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children under twelve.27 The law reflected the Reformers’ belief that
there should be less concern with guilt and punishment and more
emphasis on identifying and remedying the problems that led to the
criminal behavior.28
The goals of individualized treatment and rehabilitative justice
required juvenile courts to differ from adult courts. Legislation
accomplished this by granting juveniles an intake hearing, not an
arraignment; an adjudication, not a trial; and a disposition in the best
interest of the child, not a sentence proportionate to the offense.29
Keeping the treatment of juveniles informal also meant trying to keep
proceedings non-adversarial. Thus, juveniles possessed no right to an
attorney, no presumption of innocence, no transcript of the trial, and no
right to appeal.30 In a sense, a “deal” was struck. Juveniles surrendered
key procedural protections in exchange for a system focused on
rehabilitation instead of punishment.31
Over time, the juvenile system the Reformers envisioned, and the
legislatures embraced, began to break down. The informal setting of
juvenile adjudications left a great amount of discretion in the hands of a
single judge.32 Most juvenile court judges received less compensation
than other judges, did not write legal opinions, and lacked law clerks.33
Moreover, the position of juvenile judge lacked prestige, as evidenced
by a 1965 study, which “found that about one-fourth of juvenile court
judges had no law school training; one-third had no probation or social
work staff available to them, and 89-90 percent had no available
psychologist or psychiatrist.”34 Two years later, another study “found
that one-fifth of all [juvenile court] judges did not even have a college
degree.”35 With under-educated judges working in understaffed
courtrooms, the Reformers’ dreams slowly died.
27
28
29
30
31
See id. at 19.
See id.
BERNARD, supra note 2, at 91.
See In re Gault, 387 U.S. 1 (1967).
The “deal” was explained in Commonwealth v. Fisher, 62 A. 198, 200 (Pa. 1905):
To save a child from becoming a criminal, or from continuing in a career of
crime . . . the Legislature surely may provide for the salvation of such a child, if its
parents or guardian be unable or unwilling to do so, by bringing it into one of the
courts of the state without any process at all, for the purpose of subjecting it to the
state’s guardianship and protection. The natural parent needs no process to temporarily
deprive his child of its liberty by confining it in his own home, . . . nor is the
state . . . required to adopt any process as a means of placing its hands upon the child to
lead it into one of its courts.
32 GUARINO-GHEZZI & LOUGHRAN, supra note 4, at 90.
33 See id.
34 Id. at 91.
35 Id.
2005]
BUT I WAS JUST A KID!
B.
843
Changes to the Juvenile Justice System
By the 1950s, the performance of the juvenile courts had become
the subject of great criticism.36 The system fell short of its original
rehabilitative mission and, “in practice, the juvenile court often did not
‘treat’ juveniles or act in their ‘best interests,’ but only punished them
for their offenses.”37 In the 1960s, the Supreme Court, in a series of
decisions, fundamentally altered the juvenile justice landscape.38 One
such case, widely acknowledge for its impact, was In re Gault.39 A
juvenile court sentenced Gerald Gault, a fifteen-year-old boy, to
juvenile detention for six years for making lewd phone calls—a crime
that would have earned an adult a $5 to $50 fine, or imprisonment for
not more than two months.40 Gault’s case exemplified the growing
abuse of discretion by juvenile judges. Confronted with these facts, the
Supreme Court stated, “juvenile proceedings had frequently resulted in
arbitrariness and unfairness.”41 As a result, the Court found that the
Due Process Clause of the Fourteenth Amendment imbued juveniles
with certain protections,42 specifically the right to fair notice of the
charges,43 the right to counsel,44 the right to testimony of sworn
witnesses,45 the right to confront and cross-examine witnesses,46 and the
right against self-incrimination.47 Following In re Gault, as described
by Edward Humes, a Pulitzer Prize-winning journalist and historian,48
“every juvenile court in the Union [ground to a] halt so that lawyers and
36
37
38
39
BERNARD, supra note 2, at 108.
Id.
See, e.g., SCHWARTZ, supra note 24, at 151.
387 U.S. 1 (1967); see, e.g., MAHONEY, supra note 26, at 25 (“The most far-reaching of
these [Supreme Court cases] was In re Gault.”); GAURINO-GHEZZI, supra note 4, at 92 (“the U.S.
Supreme Court reached a decision in the case of a juvenile named Gerald Gault, which is
considered the single most influential Supreme Court decision in the area of juvenile justice”);
EDWARD HUMES, NO MATTER HOW LOUD I SHOUT: A YEAR IN THE LIFE OF JUVENILE COURT
23 (1997) (“A mildly irritating, lewdly suggestive telephone call and a fifteen year old boy named
Gerald Francis Gault; that’s all it took to bring the nation’s juvenile justice system to its knees.”).
40 Gault, 387 U.S. at 7-9. No notice was given to Gault’s parents that he was in custody,
there was no factual basis in the formal petition served on the court, and no witnesses were sworn
in at a preliminary proceeding before the juvenile judge. The woman who made the original
complaint to the police never testified. When asked what the basis for his decision was, the
juvenile judge recalled a story about Gerald having stolen a baseball glove and lying about it to
the police. Despite the fact that there had never been a formal accusation, or hearing, the judge
said this incident stuck out in his mind. Id.
41 Lize Forquer, California’s Three Strikes Law Should a Juvenile Adjudication Be a Ball or
a Strike?, 32 SAN DIEGO L. REV. 1297, 1304 (1995) (citing In re Gault, 387 U.S. at 17-21).
42 Gault, 387 U.S. at 13-14.
43 Id. at 31-34.
44 Id. at 34-42.
45 Id. at 56-57.
46 Id.
47 Id. at 44-56.
48 HUMES, supra note 39.
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court reporters and all the other trappings of real courtrooms could be
put in place. When they started up again, the way in which society dealt
with its troubled youth had forever changed.”49
Further changes in the juvenile justice system followed shortly
thereafter. In 1970, the Supreme Court, in In re Winship,50 held that the
State must prove its case beyond a reasonable doubt if the charge
constituted a crime when committed by an adult.51 Moreover, in 1975,
the Supreme Court, in Breed v. Jones,52 barred trial in adult court for a
crime already adjudicated in juvenile court.53
C.
McKeiver v. Pennsylvania and the Denial of the
Right to a Jury Trial
Even though Gault, Winship, and Breed recognized the need to
implement procedural protections not envisioned by the Progressive
Reformers, the Court did not eliminate all differences between juvenile
and adult criminal proceedings. Thus, in McKeiver v. Pennsylvania,54
the Court found no constitutional right to a jury trial in juvenile
adjudications.55 The Court recognized that “the fond and idealistic
hopes of the juvenile court proponents and early reformers of three
generations ago have not been realized,”56 and that “the juvenile judge
[often] falls short of that stalwart, protective, and communicating figure
their system envisaged,”57 but stopped short of declaring the juvenile
justice experiment a complete failure.58
49
50
51
52
Id. at 25.
397 U.S. 358 (1970).
Id. at 365-68.
421 U.S. 519 (1975). On March 1, 1970, Gary Jones was adjudicated a juvenile delinquent
due to charges involving robbery and gun possession. Prior to the disposition phase of the trial,
the juvenile judge announced that he was waiving jurisdiction to the criminal court. Jones’
lawyers argued that he had already been tried in juvenile court, and therefore, “double jeopardy”
had attached and he could not be retried in criminal court. Id. at 520-22.
53 See id. at 541.
54 403 U.S. 528 (1971). McKeiver was sixteen years old when he was charged with robbery,
larceny, and receiving stolen goods. He was adjudicated in a juvenile proceeding, in which he
was adjudged delinquent. He appealed the decision on the basis that he was not afforded the right
to a trial by jury. See In re Terry, 438 Pa. 339, 341 (1970).
55 See id. at 545.
56 Id. at 543-44.
57 Id. at 544.
58 Id. at 547. The Court stated:
We are reluctant to say that, despite disappointments of grave dimensions, it still does
not hold promise, and we are particularly reluctant to say . . . that the system cannot
accomplish its rehabilitative goals. So much depends on the availability of resources,
on the interest and commitment of the public, on willingness to learn, and on
understanding as to cause and effect and cure. In this field, as in so many others, one
perhaps learns best by doing. We are reluctant to disallow the States to experiment
2005]
BUT I WAS JUST A KID!
845
Since, in juvenile proceedings, all parties involved ideally worked
for the child’s best interest,59 the McKeiver Court feared that the
introduction of a jury in juvenile proceedings would hinder that
objective, “bringing with [it] . . . the traditional delay, formality, and the
clamor of the adversary system, and possibly, the public trial.”60
Although Gault and Winship added key procedural protections to
juvenile delinquency trials, the McKeiver Court indicated that its
holdings in those cases did not interfere with the juvenile system’s
ability to serve the best interest of the child.61 A jury trial, on the other
hand, would inhibit the ability of courts to carry out their rehabilitative
mandate in juvenile adjudications.62
The McKeiver Court reasoned that if it provided juveniles with the
right to jury trials, the juvenile justice system would cease to exist. The
Court preferred to leave the final decision about the future viability of
the juvenile justice system to the legislature.63
II.
THE ARMED CAREER CRIMINAL ACT
In addition to constitutional reform of the juvenile adjudicatory
process, federal and state legislation began to reflect a changing attitude
toward juvenile crime.64 Legislatures no longer treated juvenile
delinquents as misguided children, but instead as potential hardened
criminals,65 especially when it came to recidivism.
When Senator Arlen Specter introduced the first version of the
Armed Career Criminal Act in 1982,66 recidivism became a target of the
further and to seek in new and different ways the elusive answers to the problems of
the young, and we feel that we would be impeding that experimentation by imposing
the jury trial. The States, indeed, must go forward.
Id.
59
60
61
62
63
64
GUARINO-GHEZZI & LOUGHRAN, supra note 4, at 87.
McKeiver, 403 U.S. at 550.
Id. at 534.
See id. at 547.
See id.
Between 1992 and 1996, forty states adopted laws making it easier to try juveniles as
adults, increasingly shifting to “dispositions that are based upon the offense with the goal of
punishment. As a result, more juveniles than ever before are being charged and tried in criminal
court, detained longer, and incarcerated more frequently in adult correctional institutions.” Beale,
supra note 24, at 415-16.
65 During the last half of the last century, views of children began to change. Children are
now believed to possess certain abilities equivalent to adults. Thus, “from a world in which the
child by definition was morally incapable of committing a crime[,] [today] juveniles are to be
held strictly accountable for their crimes.” Janet E. Ainsworth, Re-imaging Childhood and
Reconstructuring the Legal Order: The Case for Abolishing the Juvenile Court, 69 N.C. L. REV.
1083, 1105 (1991) (arguing that changes in the view of juveniles have resulted in changes to the
juvenile justice system that have made the maintenance of that system unnecessary).
66 See S. 1668 (1981).
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federal government. Congress initially hoped to create a new federal
crime for individuals with prior convictions who used a firearm to
commit a burglary or robbery.67 Although it passed the Senate and a
companion measure passed in the House of Representatives, President
Ronald Reagan vetoed the bill because of federalism concerns.68
Congress thereafter eliminated these concerns by changing the ACCA
into a sentence enhancement provision.69 The revised bill quickly
passed both the House and the Senate and was signed into law in
1984.70
Under the ACCA, if a person is found in possession of a firearm
and has three previous convictions for a violent felony or serious drug
offense, that person’s sentence can be enhanced from ten to fifteen
years.71 The ACCA further states, “the term ‘conviction’ includes a
finding that a person has committed an act of juvenile delinquency
involving a violent felony.”72
The passage of the ACCA, evidences that juvenile adjudications
concerned Congress due to the large percentage of recidivists who
committed their first crimes at fifteen, sixteen, or seventeen years of
age.73 The House Report on the ACCA focused on a study by Professor
67
68
S. Rep. No. 97-585, at 5-6 (1982).
The 1981 version of the bill created a federal offense for career criminals that would have
allowed the federal government to exercise jurisdiction over what is the traditional prerogative of
the states, the police power. More details are beyond the scope of this Note, but are treated in
Tracey A. Basler, Does “Any” Mean “All” or Does “Any” Mean “Some”? An Analysis of the
“Any Court” Ambiguity of the Armed Career Criminals Act and Whether Foreign Convictions
Count as Predicate Convictions, 37 NEW ENG. L. REV. 147 (2002) (discussing the problems of
foreign convictions under the ACCA).
69 H. Rep. No. 98-1073 (1984).
70 See Armed Career Criminal Act, Pub. L. No. 98-473, 98 Stat. 2185 (1984).
71 See 18 U.S.C. § 924(e)(1) (1988). Section 924(e)(1) states:
In the case of a person who violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of this title for a violent felony
or a serious drug offense, or both, committed on occasions different from one another,
such person shall be fined under this title and imprisoned not less than fifteen
years . . . .
Id.
72 Id. at § 924(e)(2)(C) (“[T]he term ‘conviction’ includes a finding that a person has
committed an act of juvenile delinquency involving a violent felony.”).
73 H.R. Rep. 98-1073, at 2 (1984), reprinted in 1984 U.S.C.C.A.N. 3661, states:
In the now classic study, Professor Marvin Wolfgang and his coworkers at the
University of Pennsylvania examined the delinquency records of all the males born in
1945 who lived in Philadelphia between their tenth and eighteenth birthdays. They
were able to find over 10,000 of them and learned that more than one-third had at least
one recorded contact with the police by the time they were eighteen, and half of these
had more than one such contact . . . Most of the crimes were committed when the boys
were 15, 16 or 17 . . . This study included statistics showing that chronic offenders
which compromised six percent of the study group committed 61 percent of all
homicides, 76 percent of all rapes, 73 percent of all robberies, and 65 percent of all
aggravated assaults.
Id.
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Marvin Wolfgang that examined records of all men born in 1945 who
lived in Philadelphia between their tenth and eighteenth birthdays.74 Dr.
Wolfgang’s study revealed that “more than one-third had at least one
recorded contact with police by the time they were 18, and half of these
had more than one such contact.”75 Congress decided that if such a
large percentage of career criminals began their criminal careers as
juveniles, then juvenile adjudications should fall within the bounds of
“prior offenses.”
There is little else in the way of legislative history dealing with
Congress’ inclusion of juvenile adjudications in the definition of prior
convictions. This suggests Congress did not view the ACCA as
significantly impacting the juvenile justice system. Rather, Congress
mainly intended to reduce crime by enhancing the sentences of
recidivists.76
III.
APPRENDI V. NEW JERSEY
Congress also did not specify whether, under the ACCA, a court
must present a jury with the facts of a prior conviction in order to
enhance a sentence, partially because of the lack of jurisprudence in this
area. At the time, the difference between a sentencing factor and an
element of an offense did not receive much attention from the legal
community.77 However, this began to change after the passage of the
ACCA, as the Supreme Court signaled interest in this area,78 leading to
74
75
76
77
See id.
Id.
See H.R. Rep. No. 98-1073.
The Supreme Court first identified the difference between a sentencing factor and an
element of a crime in McMillan v. Pennsylvania, 477 U.S. 79 (1986), two years after Congress
passed the ACCA. The Court concluded that legislatures could differentiate between elements of
a crime, which had to be submitted to a jury and proved beyond a reasonable doubt, and
sentencing factors, which could be found by a judge using a lesser standard of proof.
As a result of McMillan, legislatures began to give judges more discretion by naming
certain features as sentencing factors, with five states explicitly permitting a judge to impose a
mandatory minimum sentence upon the judge’s finding–by a preponderance of the evidence–that
the defendant possessed a firearm. See King & Klein, supra note 9, at 1492.
To determine if something was a sentencing factor or an element of an offense, courts
would often rely on “the statute’s language, structure, subject matter, context and history.”
Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998) (holding that a sentence
enhancement beyond the statutory maximum based on recidivism was a sentencing factor that
need not be presented to a jury or proved beyond a reasonable doubt).
78 See McMillan, 477 U.S. at 79 (defining the difference between a sentencing factor and an
element of a crime); Almendarez-Torres, 523 U.S. at 228 (holding that a sentence enhancement
beyond the statutory maximum based on recidivism was a sentencing factor that did not need to
be presented to a jury and proved beyond a reasonable doubt); Nathaniel Jones v. United States,
526 U.S. 227 (1999) (explaining the importance of Congress’ intent that the fact of bodily harm
to a victim be treated as an element of an offense).
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its fundamental pronouncement in Apprendi v. New Jersey.79
Apprendi involved a man who fired his .22-caliber gun into the
home of an African-American family “because they [were] black in
color [and he did] not want them in the neighborhood.”80 Based on this
admission and a finding of bias proved to the judge by a preponderance
of the evidence, the trial court enhanced Apprendi’s sentence from the
statutory maximum of ten years to a sentence of twelve years pursuant
to the New Jersey Hate Crimes Statute.81 Apprendi challenged the
enhancement, arguing that a finding of bias must be submitted to the
jury and proved beyond a reasonable doubt. The appellate court
rejected this argument, as did a divided New Jersey Supreme Court.
The United States Supreme Court granted certiorari and rendered a
decision that significantly impacted the criminal justice system.82 The
Supreme Court ruled that under the New Jersey scheme, bias constituted
an element of the offense and that under the Fourteenth Amendment,
“[o]ther than the fact of a prior conviction, any fact that increases the
prescribed statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt.”83
79 530 U.S. 466 (2000). The impact and importance of Apprendi can be viewed by examining
the many law review articles on the topic. See, e.g., Stephanos Bibas, How Apprendi Affects
Institutional Allocations of Power, 87 IOWA L. REV. 465 (2002) (arguing Apprendi’s focus on
juries blinded the Court to the real institutional competition among legislatures, sentencing
commissions, judges, and prosecutors and that academics should begin to reframe criminal
procedure scholarship by looking at the institutional competition of other actors); B. Patrick
Costello, Jr., Apprendi v. New Jersey: ‘Who Decides What Constitutes a Crime?’ An Analysis of
Whether a Legislature is Constitutionally Free to ‘Allocate’ an Element of an Offense to an
Affirmative Defense or a Sentencing Factor Without Judicial Review, 77 NOTRE DAME L. REV.
1205 (2002); Adam Shane Caleb Ford, Three Shots into a Black Santa that May Unwittingly Start
an Overhaul of America’s Criminal System: Apprendi v. New Jersey and the Restructuring of the
Federal Sentencing Guidelines, 12 SETON HALL CONST. L.J. 249 (2001) (arguing that Apprendi
will require the restructuring of the Federal Sentencing Guidelines to provide that judges find
facts that enhance sentences beyond a reasonable doubt and in doing so restore the original goals
of the guidelines); Susan N. Herman, Applying Apprendi to the Federal Sentencing Guidelines:
You Say You Want a Revolution?, 87 IOWA L. REV. 615 (2002) (discussing why the Supreme
Court is likely to extend Apprendi’s logic to the Federal Sentencing Guidelines); Joseph L.
Hoffmann, Apprendi v. New Jersey: Back to the Future?, 38 AM. CRIM. L. REV. 255 (2001)
(arguing that because of Apprendi, the Court will likely find itself incapable of controlling
legislative excesses in the area of determinate sentencing law); Huigens, supra note 13; King &
Klein, supra note 9; Lewis, supra note 13; Elizabeth A. Olson, Rethinking Mandatory Minimums
After Apprendi, 96 NW. U. L. REV. 811 (2002) (arguing that Apprendi should prompt
reconsideration of the constitutionality of mandatory minimums based on factors not submitted to
the jury or proven beyond a reasonable doubt).
80 731 A.2d 485, 486 (N.J. 1999).
81 N.J. STAT. ANN. § 2C:44-3(e) (West 1995).
82 To some, Apprendi represented a revolution in sentencing. See, e.g., Patrick A. Mullin,
The Apprendi Watershed: Hate Crimes Act Ruling May Radically Alter Federal Sentencing
Landscape, N.J.L.J., Sept. 25, 2000, at 1304; Brooke A. Masters, High Court Ruling May Rewrite
Sentencing; Changes in Guidelines, Raft of Appeals Feared After Justices Decision, WASH. POST,
July 23, 2000, at A1; David Rovella, A Looming ‘Apprendi’ Tsunami?, NAT’L L.J., Jan. 8, 2001,
at A1.
83 Apprendi, 530 U.S. at 490. There is a difference between increasing a punishment beyond
2005]
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Apprendi divided sentence enhancement statutes into two groups:
those that enhance a sentence based on an element of an offense and
those that enhance a sentence based on recidivism. The former kind
requires proof beyond a reasonable doubt to a jury, whereas the latter
kind does not. As for enhancements based on recidivism, the court
previously indicated that they differed from other sentence enhancement
factors.
In Almendarez-Torres v. United States,84 the Court upheld a statute
allowing a judge to sentence a defendant to twenty years in prison for a
crime that carried a maximum penalty of two years. The Court
reasoned that the factor used to enhance the sentence was simply a
sentencing factor and not an essential element of the crime that needed
the statutory maximum and fixing a punishment within the statutory range. For example, the
State of X has a sentencing range from five to ten years for the crime of arson. A “hate-crimes”
statute allows a judge to increase the sentence to fifteen years if he finds that the arsonist was
motivated by racial animus. This is an example of a statute increasing a sentence beyond the
statutory maximum, as was the case in Apprendi.
Now suppose the State of Z has a sentencing range of five to fifteen years for the crime of
arson. When imposing the sentence the judge finds that the defendant’s action was motivated by
racial animus and therefore imposes the statutory maximum of fifteen years. This is the example
of the judge using his discretion and imposing a sentence within the statutorily prescribed range.
In Williams v. New York, 337 U.S. 241 (1949), the Supreme Court held that it was
constitutional for a judge to exercise discretion when imposing a sentence that falls within the
statutorily prescribed range. A judge is free to impose any sentence within the statutory range
and any evidence he relies on in doing so need not be presented to the jury, nor proven beyond a
reasonable doubt. This is what happened in state Z, above.
The Supreme Court has taken a different approach when it comes to enhancing a sentence
beyond the statutorily prescribed range as done in state X. In McMillan v. Pennsylvania, 477
U.S. 79 (1986), the Court noted the difference between a statute that increases the maximum
penalty and one that gives the judge discretion in sentencing within the statutory range,
concluding:
[The statute] operates solely to limit the sentencing court’s discretion in selecting a
penalty within the range already available to it without the special finding of visible
possession of a firearm . . . Petitioner’s claim that visible possession is “really” an
element of the offense . . . would have at least more superficial appeal if a finding of
visible possession exposed them to greater or additional punishment.
Id. at 88.
Some have argued that Apprendi’s holding is purely formalistic. Legislatures remain free
to simply expand sentence ranges and give judges wide discretion in setting the punishment. For
example, the state could set the statutory maximum sentence for possession of a weapon by a
felon at twenty-five years and instruct the judge to consider prior convictions in setting the
punishment. Because the sentence no longer exceeds the statutory maximum, Apprendi would
ostensibly no longer apply. See, e.g., Jones v. United States, 526 U.S. 227, 267 (1999) (Kennedy,
J., dissenting) (“Congress could comply with this principle by making only minor changes of
phraseology that would leave the statutory scheme, for practical purposes, unchanged.”).
The Apprendi majority anticipated this argument. They noted that a state could
theoretically revise its criminal code by “extending all statutory maximum sentences . . . and
giving judges guided discretion as to a few specially selected factors within that range.” If a
legislature were to do this, the Court would “question whether the revision was constitutional
under th[e] Court’s prior decisions.” Apprendi, 530 U.S. at 490 n.16.
84 523 U.S. 224 (1998).
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to be proven to the jury beyond a reasonable doubt.85 The Court stated
explicitly that its analysis reflected that the statute increased the
sentence based on recidivism86—a typical and historical sentencing
factor.87 The Court reasoned that recidivism should be treated as a
sentencing factor because the defendant, in previous court appearances
for prior crimes, received all necessary due process protections. As
such, the Court found Almendarez-Torres’ prior conviction
constitutionally sound and it could therefore be used in later
proceedings.88
The same is not true for other factors, besides recidivism, used by a
court to increase a sentence. In N. Jones v. United States,89 the Court
characterized prior convictions differently from other sentence
enhancement features, which as elements of an offense must be
submitted to the jury and proved beyond a reasonable doubt.90
While Apprendi logically followed the holdings of AlmendarezTorres and N. Jones, two recent cases offer further clarification. Ring v.
Arizona91 dealt with Arizona’s sentencing scheme, which allowed a jury
to find the facts sufficient for a conviction for a capital crime, but
allowed the judge to issue a sentence based on aggravating factors
presented only to the judge.92 Prior to Apprendi, the Court found
Arizona’s sentencing scheme constitutional.93
Apprendi itself
mentioned the Arizona scheme in dicta, concluding that even after
Apprendi the scheme would still be constitutional because the judge
merely sentenced the defendant to the statutory maximum and did not
enhance his sentence. Justice O’Connor’s dissent in Apprendi disagreed
with the majority’s interpretation of the Arizona scheme. To Justice
O’Connor “[a] defendant convicted of first-degree murder in Arizona
85
86
See id. at 230-35.
The Court turned to its analysis of whether Congress meant this to be a sentencing factor or
an element “with recidivism as the subject matter in mind.” Id. at 230.
87 See id.
88 Professor Douglas A. Berman contends that the prior conviction exception may no longer
be supported by five justices on the Supreme Court. See http://www.sentencing.typepad.com/
sentencing_law_and_policy/2004/08/the_next_big_em.html (last visited Jan. 22, 2005). He
argues that it is possible that this issue may be argued before the court in United States v.
Shepard, 348 F.3d 308 (1st Cir. 2003), cert. granted, 124 S. Ct. 2871 (2004).
89 526 U.S. 227 (1999). Jones was indicted for violating the federal carjacking statute. After
finding the defendant guilty, the judge found by a preponderance of the evidence that serious
bodily injury had occurred during the commission of the crime. Despite the fact that no injury
related facts were charged in the indictment, Jones’ sentence was nonetheless enhanced from the
statutory maximum fifteen years to the enhanced sentence of twenty-five years. Id.
90 Id. The Supreme Court held that increasing a sentence based on the judge’s finding that
serious bodily injury occurred during the commission of the crime was unconstitutional because
bodily harm was intended by the legislature to be an element of the offense, not a sentencing
factor. It therefore had to be submitted to the jury and proved beyond a reasonable doubt. Id.
91 536 U.S. 584 (2002).
92 Id. at 563-64.
93 See Walton v. Arizona, 497 U.S. 639 (1990).
2005]
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851
cannot receive a death sentence unless a judge makes the factual
determination that a statutory aggravating factor exists. Without that
critical finding, the maximum sentence to which a defendant is exposed
is life imprisonment, and not the death penalty.”94 Thus, to Justice
O’Conner, the Arizona statute enhanced the sentence beyond the
statutory maximum, rendering the enhancement unconstitutional under
the majority’s decision in Apprendi.
In Ring, the Arizona Supreme Court commented on the
disagreement between the majority and Justice O’Connor in Apprendi,
expressing a belief that Justice O’Connor properly interpreted the
Arizona scheme.95 However, because the Supreme Court stated
Arizona’s scheme was still constitutional after Apprendi, the Arizona
Court believed itself limited by precedent, and found the scheme
constitutional.96 Out of deference to the Arizona Supreme Court’s
interpretation of its own state statute, the Supreme Court granted
certiorari and reversed. Justice Ginsburg, writing for the Ring majority,
accepted the Arizona Supreme Court’s (and Justice O’Connor’s)
interpretation of the sentencing scheme, rendering it into conflict with
Apprendi, and therefore, unconstitutional.97
Most recently, the Court reaffirmed Apprendi’s holding in Blakely
v. Washington.98 In that case, Ralph Blakely pleaded guilty to a charge
of second degree kidnapping involving domestic violence and the use of
a firearm, admitting only the elements of the offense, but no other
relevant facts.99 The sentencing range for that offense was forty nine to
fifty three months. Based on Washington’s sentencing scheme,
however, the judge issued an exceptional sentence of ninety months,
thirty seven months beyond the statutory maximum. An exceptional
sentence could only be based on “factors other than those which are
used in computing the standard range sentence for the offense.”100 After
Blakely objected to the sentence, the judge held a three-day bench
94
95
Apprendi v. New Jersey, 530 U.S. 466, 538 (2000) (O’Connor, J., dissenting).
Ring v. Arizona, 25 P.3d 1139, 1152 (2001) (“Therefore, the present case is precisely as
described in Justice O’Connor’s dissent—Defendant’s death sentence required the judge’s factual
findings. Specifically, the trial judge in this case made the necessary factual finding to support
the aggravating circumstance that the killing was heinous and depraved.”).
96 Id. (“Although Defendant argues that Walton cannot stand after Apprendi, we are bound by
the Supremacy Clause in such matters. Thus, we must conclude that Walton is still the
controlling authority and that the Arizona death-penalty scheme has not been held
unconstitutional under either Apprendi or Jones.”).
97 Ring v. Arizona, 536 U.S. 584, 588 (2002). Ring has been the subject of a multitude of law
review articles, many of which deal with the retroactivity of the holding. Numerous convicts on
death row were sentenced under the now infirm sentencing scheme, and the validity of their
sentences is now in question. See, e.g., Ethan Isaac Jacobs, Is Ring Retroactive?, 103 COLUM. L.
REV. 1805 (2003).
98 124 S. Ct. 2531 (2004).
99 Id. at 2534, 2535.
100 Id. at 2535.
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hearing and affirmed his decision.101
The Supreme Court reversed Blakely’s sentence because the facts
supporting it “were neither admitted by petitioner nor found by a
jury.”102 The Court held that the statutory maximum for a crime is
based solely on the facts found by a jury or admitted by the defendant.
Therefore, Blakely’s sentence of ninety months exceeded the statutory
maximum of fifty three months, resulting in the Court’s conclusion that:
the relevant “statutory maximum” is not the maximum sentence a
judge may impose after finding additional facts, but the maximum he
may impose without any additional findings. When a judge inflicts
punishment that the jury verdict alone does not allow, the jury has
not found all the facts “which the law makes essential to the
punishment, and the judge exceeds his proper authority.”103
Although the full impact of Blakely has yet to be seen, the Supreme
Court recently decided two cases addressing its ramifications.104 At the
very least, Blakely shows the importance of the jury’s function, as the
Court in Blakely rationalized Apprendi as intending “to give intelligible
content to the right of jury trial.”105 Together, Apprendi and Blakely
ensure that “the judge’s authority to sentence derives wholly from the
jury’s verdict. Without that restriction the jury would not exercise the
control that the Framers intended.”106
IV.
THE CIRCUIT SPLIT
At first glance, the Supreme Court’s holdings in Apprendi and its
progeny do not seem to affect the ACCA. The ACCA enhances
sentences based on recidivism, demonstrated through prior convictions,
which the Supreme Court explicitly stated are exempt from the jury
presentment requirement. However, the ACCA also enhances sentences
based on juvenile adjudications where the defendant lacked the right to
a jury trial. The Supreme Court exempted prior convictions from the
Apprendi rule because they were established by a procedure consistent
with the demands of due process, including the right to a jury trial. In
light of Apprendi, a circuit split107 exists as to whether a court may use a
non-jury juvenile adjudication as the basis for sentence enhancement
101
102
103
104
Id.
Id. at 2537.
Id.
See United States v. Booker (No. 04-104) and United States v. Fanfan (No. 04-105), 2005
U.S. LEXIS 628 (Jan. 12, 2005); see also supra note 13.
105 Blakely, 124 S. Ct. at 2538.
106 Id. at 2539.
107 Compare United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001), with United States v.
Smalley, 294 F.3d 1030 (8th Cir. 2002), and United States v. Jones, 332 F.3d 688 (3d Cir. 2003).
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under the ACCA.108
A.
Juvenile Adjudications Do Not Satisfy the Apprendi Jury
Presentment Requirement: United States v. Tighe
The Ninth Circuit first addressed the issue of using juvenile
adjudications as enhancement offenses under the ACCA in United
States v. Tighe.109 The trial court enhanced Tighe’s sentence based on
three prior felony convictions: a 1993 Wyoming robbery conviction; a
1992 South Dakota burglary conviction; and a 1988 Oregon juvenile
adjudication for reckless endangerment, first-degree robbery, and
unauthorized use of a motor vehicle,110 which occurred when Tighe was
just fourteen years old.111 Based on these convictions, the court
sentenced Tighe under the ACCA to 235 months of incarceration while
the underlying crimes typically carried a statutory maximum of 120
months. Tighe appealed the enhancement.
The Ninth Circuit began its analysis by distinguishing Tighe from
United States v. Williams, a pre-Apprendi case.112 Williams held that “it
was not a violation of due process rights for the sentencing judge to use
his prior, non-jury, juvenile adjudications to enhance [a] sentence under
108 Another question this presents is whether McKeiver, which held that there was no right to a
jury trial in a juvenile adjudication, should still be considered good law. One of the most noted
scholars in the field of juvenile justice argues that the Supreme Court’s decision in Apprendi
provides an additional reason why McKeiver should be overruled, and juveniles allowed a jury
trial. See Barry C. Feld, The Constitutional Tension Between Apprendi and McKeiver: Sentence
Enhancement Based on Delinquency Convictions and the Quality of Justice in Juvenile Courts,
38 WAKE FOREST L. REV. 1111 (2003). Feld compellingly argues that providing juveniles with a
constitutional right to a jury trial would eliminate any future problems with using the outcome of
that hearing for a sentence enhancement. Id. at 1112. The biggest problem with Feld’s analysis
is that the Supreme Court said in McKeiver that they were unwilling to declare the juvenile justice
experiment over, preferring that legislatures do so if they felt so compelled. One can read
Apprendi consistent with that belief expressed in McKeiver. Simply put, if legislatures still desire
a separate juvenile justice system, they cannot prescribe adult penalties. If legislatures no longer
wish to have a separate juvenile system, they must explicitly say so and provide juveniles with
full due process. Thus, Apprendi might be better understood as instructing legislatures that they
cannot have a juvenile system with adult consequences.
109 Tighe, 266 F.3d at 1194. Defendant Tighe pled guilty to bank robbery, being a felon in
possession of a firearm, and dealing in stolen goods. Tighe objected to the pre-sentence report
that concluded that the ACCA sentence enhancement should apply, arguing that in light of
Apprendi the ACCA was unconstitutional as applied to him because it counted a juvenile
adjudication as an enhancement offense. Id. at 1190.
110 See id.
111 See id. at 1191. Tighe’s first known offense occurred when he was 14, and he followed
with a life of crime. This seems to be exactly the situation that Senator Specter was addressing
when he introduced the ACCA. The reasonableness of the policy behind the legislation is not
conclusive of its constitutionality.
112 891 F.2d 212 (9th Cir. 1989). Following Blakely, it is increasingly clear that Williams is no
longer good law.
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the sentencing guidelines.”113 In Williams, however, the court found it
constitutional to use a juvenile adjudication in setting a sentence within
a statutory range.114 The court believed Tighe’s case differed, because
“a fact that is used to increase the maximum statutory penalty to which
a defendant is exposed raises an entirely different set of constitutional
concerns than a fact that merely affects where a sentence is fixed within
an undisputed statutorily mandated range.”115 Thus, the court did not
increase the sentence beyond the statutorily prescribed range.
After distinguishing Williams, the court turned to the central
question: “do prior juvenile adjudications, which do not afford the right
to a jury trial, fall within the ‘prior conviction’ exception to Apprendi’s
general rule that a fact used to increase a defendant’s maximum penalty
must be submitted to a jury and proved beyond a reasonable doubt?”116
To answer this question, the court attempted to define “conviction” for
Apprendi purposes.117
The court used N. Jones v. United States118 to explain why using
prior convictions as a sentence enhancement factor differed from using
other factors, such as injury to the victim.119 The court stated that
“[o]ne basis for that constitutional distinctiveness is not hard to see:
unlike virtually any other consideration used to enlarge the possible
penalty for an offense . . . a prior conviction must itself have been
established through procedures satisfying the fair notice, reasonable
doubt and jury trial guarantees.”120 The Tighe court interpreted N.
Jones as holding that a defendant’s prior convictions had previously
satisfied the “fundamental triumvirate of procedural protections.”121 As
such, they need not be presented to the jury.
Relying on dicta in Apprendi,122 the Tighe court reasoned that
113
114
Id. at 215.
Tighe, 266 F.3d at 1192 (“William[’]s . . . sentence in that case was within the statutorily
mandated range for the offense of conviction . . . [and] William’s prior juvenile adjudications
were not used to increase the statutorily mandated punishment to which he was exposed.”).
115 Id.
116 Id. at 1193.
117 Interestingly, no court ever looked to see whether the Supreme Court had ever held that a
juvenile adjudication was a “conviction.” The Supreme Court suggests in McKeiver that the
answer is no. “The juvenile court proceeding has not yet been held to be a ‘criminal prosecution,’
within the meaning and reach of the Sixth Amendment.” McKeiver, 403 U.S. 528, 541 (1971). If
the juvenile proceeding is not criminal, its outcome cannot be a “conviction.”
118 526 U.S. 227 (1999).
119 Id.
120 Id. at 249.
121 Tighe, 266 F. 3d at 1193. The triumvirate is notice, reasonable doubt and a trial by jury.
Id.
122 The Apprendi Court stated:
There is a vast difference between accepting the validity of a prior judgment of
conviction entered in a proceeding in which the defendant had the right to a jury trial
and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and
allowing a judge to find the required fact under a lesser standard of proof.
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Apprendi extended the logic of N. Jones, exempting prior convictions
from jury presentment because “prior convictions [are] the product of
proceedings that afford crucial procedural protections—particularly the
right to a jury trial and proof beyond a reasonable doubt.”123 The court
concluded that because Tighe’s juvenile adjudication lacked a jury, it
fell outside Apprendi’s “prior conviction” exception.124
In a harshly worded dissent, Judge Melvin Brunetti called the
majority opinion in Tighe “unsupportable.”125 Judge Brunetti first
examined the language of the ACCA, which explicitly stated Congress’
intent that juvenile adjudications count as prior convictions.126 He then
responded to the majority’s treatment of United States v. Williams,127
opining that Williams rested on the belief that juveniles need only
receive the due process constitutionally afforded to them in order for
their adjudications to be used as an enhancement offense. However,
questions surround the continuing viability of Williams as a result of
Blakely, weakening Judge Brunetti’s position.
Nonetheless, according to Judge Brunetti, the Tighe case should
have been straightforward.128 Courts afford adults the right to a trial by
jury, whereas juveniles lack such rights. Legislatures possess the power
to hold previous convictions to a lesser standard of proof because the
defendant already received due process in their previous trial.129 Thus,
despite the fact that juveniles lack the same protections as adults, if
courts afford juveniles the due process rights that the Constitution
mandates they receive, courts may use juvenile convictions as
enhancement offenses under Apprendi.130
B.
Cases That Hold That Juvenile Adjudications Can be Used to
Enhance Adult Sentences: United States v. Smalley
and United States v. L. Jones
Since Tighe, two additional circuit courts addressed the issue of
ACCA sentence enhancements using juvenile adjudications. The
Apprendi, 530 U.S. 466, 496 (2000).
123 Tighe, 266 F. 3d at 1194.
124 See id.
125 Id. at 1198 (Brunetti, J., dissenting).
126 Both sides recognized that Congress intended for juvenile adjudications to count.
Therefore, reliance on Congress’ intent may be fruitless because the statute was passed more then
a decade before the Supreme Court’s decision in Apprendi. In light of the Supreme Court’s
holding in Apprendi, Congress’ intent in 1984 has less bearing on the question of whether what
they passed was still constitutional in 2001.
127 891 F.2d 212 (9th Cir. 1989).
128 Tighe, 266 F. 3d at 1199 (Brunetti, J., dissenting).
129 Id. at 1199-1200 (Brunetti, J., dissenting).
130 See id. at 1200 (Brunetti, J., dissenting).
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Eighth Circuit in United States v. Smalley131 and the Third Circuit in
United States v. L. Jones132 both concluded that under Apprendi juvenile
convictions need not be submitted to a jury and proved beyond a
reasonable doubt in order to qualify as an enhancement offense for
sentencing purposes.
The Smalley court began its analysis by disagreeing with Tighe. In
Tighe, the court held “that it is not only sufficient but necessary that the
‘fundamental triumvirate of procedural protections’ . . . support an
adjudication before it can qualify for the Apprendi exemption.”133
Smalley, on the other hand, read the Supreme Court’s precedents as
defining what protections were sufficient in order for a prior conviction
to be used as a sentence enhancement without explaining what
protections were actually necessary.134
The Smalley court took particular exception to the Tighe court’s
use of N. Jones.135 Contrary to Tighe’s reading of N. Jones—that
because prior convictions had already been established through the
“fundamental triumvirate of procedural protections,” they did not need
to be presented to the jury,136—the Smalley court read N. Jones “to
mean that if prior convictions result from proceedings outfitted with
these safeguards, then they can constitutionally be used to increase the
penalty for a crime without those convictions being submitted and
proved to a jury.”137 In other words, the Smalley court believed that N.
Jones merely explained what were sufficient procedural safeguards, not
what were necessary safeguards. Moreover, the Smalley court found the
discussion superfluous because it believed Tighe placed undue weight
on N. Jones, a case not even cited in Apprendi.138
The Smalley court reasoned that the constitutionality of sentence
enhancements should turn on “whether juvenile adjudications, like adult
convictions, are so reliable that due process of law is not offended by
[allowing them to be used as predicate offenses for the purpose of
sentence enhancement].”139 Despite the absence of the right to a jury
trial, a juvenile still possesses many important fundamental rights: the
131
132
133
134
294 F.3d 1030 (8th Cir. 2002).
332 F.3d 688 (3d Cir. 2003).
Smalley, 294 F.3d at 1032.
The Smalley Court stated:
We think that while the Court established what constitutes sufficient procedural
safeguards (a right to jury trial and proof beyond a reasonable doubt), and what does
not (judge-made findings under a lesser standard of proof), the court did not take a
position on possibilities that lie in between these two poles.
Id.
135
136
137
138
139
Jones v. United States, 526 U.S. 227 (1999).
United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir. 2001).
Smalley, 294 F.3d at 1032.
See id.
Id. at 1033.
2005]
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right against self-incrimination; to fair notice; to counsel; to confront
and cross-examine witnesses; and to have a judge find guilt beyond a
reasonable doubt. Therefore, the Smalley court reasoned that juvenile
adjudications had sufficient procedural safeguards to satisfy the
Apprendi exemption.140 The Smalley court accepted that the absence of
the jury in juvenile cases “does not undermine the reliability of such
adjudications”141 and thus, a jury trial is not constitutionally required.142
The L. Jones court agreed with the Smalley court’s central holding
that “Apprendi [did not create] a bright line rule whereby proof beyond
a reasonable doubt, fair notice, and a right to a jury trial are all
necessary procedural safeguards that must be present before qualifying
for the Apprendi exemption.”143 Noting that the “Supreme Court has
not held that prior non-jury juvenile adjudications cannot count as prior
convictions for the purposes of Apprendi’s exception,”144 the L. Jones
court found nothing in the law that prevented a court from using a
juvenile conviction as an enhancement offense under the ACCA.145
V. ANALYSIS OF THE CIRCUIT SPLIT
The circuit split over the ACCA results from the courts’ divergent
views on recidivism and their interpretations as to why prior convictions
are exempted from Apprendi’s presentment requirement. The Eighth
and Third Circuits, in Smalley and L. Jones, relied on the fact that the
ACCA enhances sentences based on recidivism. These courts reasoned
that juvenile adjudications are included because, despite the absence of
a jury, such adjudications provide enough reliability to justify their use
as sentence enhancement factors. On the other hand, the Ninth Circuit
in Tighe based its decision on the Supreme Court’s reasons, as
explained in N. Jones, for exempting recidivism. The Tighe court read
N. Jones as exempting recidivism specifically because of the
assumption that the criminal defendant received full due process in the
140 See id. The court did not mention any of the empirical data questioning the reliability of
juvenile adjudications. At least one state was presented with a report that was highly skeptical
about using juvenile adjudications to enhance adult sentences. “The Task Force supports the
Sentencing Guidelines Commission’s position that juvenile adjudications should continue to have
only limited use in the adult system, when full due process is not accorded the juvenile and it is
not required that the juvenile receive effective assistance of counsel.” Symposium, Minnesota
Supreme Court Advisory Task Force on the Juvenile Justice System: Final Report, 20 WM.
MITCHELL L. REV. 595, 643 (1994).
141 Smalley, 294 F.3d at 1033.
142 See id.
143 Jones, 332 F.3d at 695-96.
144 Id. at 696.
145 Id.
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previous adjudication.146 However, juvenile adjudications often lack the
procedural protections offered in adult proceedings.147 The Ninth
Circuit thus reasoned that equating the reliability of juvenile
adjudications with normal criminal convictions ignored “the significant
constitutional differences between adult convictions and juvenile
adjudications.”148 Juvenile adjudications, therefore, fall outside the
Apprendi exemption.
The Tighe court’s resolution also implicitly squares Apprendi with
McKeiver, unlike Smalley and L. Jones. In McKeiver, the Supreme
Court held that the lesser reliability of juvenile adjudications caused by
the lack of a jury trial could be sanctioned solely because of the unique
rehabilitative focus of the juvenile justice system. This correspondingly
means juvenile adjudications are not reliable enough for the adult
consequences attached to juvenile adjudications by the ACCA. Thus,
including juvenile adjudications in Apprendi’s jury presentment
exemption, as the Eighth and Third circuits do, extends McKeiver
beyond the decision’s narrow holding to exclude jury trials in the
unique rehabilitative setting of the juvenile justice system. It is more
consistent with McKeiver to understand Apprendi as forbidding the use
of prior convictions for sentence enhancement purposes if they were
obtained without the defendant receiving full criminal procedural
protections.
A.
Recidivism, Juveniles, and Apprendi
If no differences exist between the reliability of a juvenile
proceeding and the reliability of an adult criminal proceeding, the
holdings of Smalley and L. Jones make sense. These courts based their
sentence enhancements on recidivism, which the Supreme Court said in
N. Jones and Apprendi could be used by a judge as a sentenceenhancement factor. Nevertheless, looking deeper into the Supreme
Court’s rationale in N. Jones, Apprendi, and McKeiver renders the
decisions of the Eighth and Third Circuits less compelling.
146 See generally Jones v. United States, 526 U.S. 227 (1999) (holding that a judge can
constitutionally enhance a sentence based on recidivism because the prior conviction was
obtained in a proceeding with the proper procedural safeguards).
147 McKeiver held that juveniles do not have a right to a jury trial, so the vast majority of cases
in juvenile court are heard by a judge. See McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
There are also other fundamental procedural differences. For example, in juvenile court, hearsay
is not excluded. For a good discussion of the evidentiary differences between adult trials and
juvenile adjudications, see generally BARRY C. FELD, JUSTICE FOR CHILDREN: THE RIGHT TO
COUNSEL AND THE JUVENILE COURTS (1993). See also Juan Alberto Arteaga, Juvenile
(In)justice: Congressional Attempts to Abrogate the Procedural Rights of Juvenile Defendants,
102 COLUM. L. REV. 1051, 1057 (2002).
148 Tighe, 266 F.3d at 1192-93.
2005]
BUT I WAS JUST A KID!
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The circuit split revolves around a fundamental question of how
much weight should be given to the Court’s dicta in N. Jones,149 which
explains the reasons why a prior conviction need not be presented to a
jury and proved beyond a reasonable doubt.150 The Tighe court read the
N. Jones dicta as exempting recidivism because the prior conviction
resulted from a procedure where the defendant received full due
process, including the right to fair notice of the charges, reasonable
doubt, and a jury trial.151 If the proceeding lacked the right to a jury
trial, however, as is the case in a juvenile proceeding, the Tighe court
reasoned that sufficient reliability no longer existed, and the prior
conviction could not be used as the basis for sentence enhancement.152
The Smalley court, on the other hand, dismissed the Ninth Circuit’s
reliance on N. Jones. Instead, it focused on Apprendi’s holding that
prior convictions came with the certainty that they were already
obtained in a proceeding with full due process, including the right to a
jury trial and proof beyond a reasonable doubt. Whereas the Ninth
Circuit read this as meaning that a conviction obtained without the right
to a jury trial lacked sufficient certainty to be used as a sentence
enhancement factor, the Eighth Circuit reasoned that Apprendi merely
enumerated examples of sufficient procedural safeguards, but did not
define what constituted necessary safeguards.153 Therefore, for the
Smalley court, the ultimate question rested not on whether the prior
conviction was obtained in a proceeding with full due process, but
whether, in the totality of the circumstances, the prior conviction was
reliable enough to be used as a sentence enhancement factor. Because
the lack of a jury trial in a juvenile proceeding did not undermine the
reliability of the juvenile conviction, Apprendi did not prevent the use
of the juvenile conviction as a sentence enhancement factor.
The Smalley court’s analysis of Apprendi ignores many of the
central prior cases that led to Apprendi’s holding and many of the
crucial differences between juvenile adjudications and adult criminal
trials. First, N. Jones established that recidivism was an acceptable
sentencing factor specifically because “a prior conviction must itself
have been established through procedures satisfying the fair notice,
149
150
151
152
526 U.S. 227 (1999).
See id.
See discussion of N. Jones in section III.
A criticism of the Ninth Circuit’s approach could be that the end result would be the fact of
the prior conviction being charged in the indictment, presented to the jury, and proved beyond a
reasonable doubt. The Tighe dissent and the Almendarez-Torres majority argue that this would
require the government to present evidence of a prior conviction, something that courts have long
recognized is prejudicial to the defendant. The legal world is flexible and can find ways around
this supposed predicament. For example, the Tighe majority points out that separating the guilt
and the sentencing phases of a trial may be an effective way of dealing with this problem.
153 Smalley, 294 F.3d at 1032.
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reasonable doubt, and jury trial guarantees.”154 The Smalley court
attempted to minimize the importance of this language by noting that
the Court in Apprendi did not even cite it.155 However, although
Apprendi did not cite the exact language in N. Jones, the Supreme Court
did explicitly state that the Apprendi holding was foreshadowed in N.
Jones.156 Apprendi’s holding is completely consistent with and was
entirely foreshadowed by N. Jones’ finding that there is a difference
between accepting the validity of a prior conviction in which the
defendant had all of his due process rights and one in which a judge is
allowed to find a fact under a lesser standard of proof.157 Thus, to argue
that the reason behind exempting recidivism in Apprendi is not based on
the explanation provided in N. Jones, as the Eighth Circuit does, is
unconvincing.
Second, the Smalley court reasoned that the foregoing analysis was
not the central issue in determining whether a prior conviction could be
used as a sentence enhancement. Instead, it relied on “an examination
of whether juvenile adjudications, like adult convictions, are so reliable
that due process of law is not offended by such an exemption.”158
Because juveniles have the right to notice, counsel, confrontation and
cross-examination, against self-incrimination, and to have a fact finder
who is required to find guilt beyond a reasonable doubt, Smalley held
that due process was not violated by the use of juvenile adjudications as
“prior convictions.”159
The Smalley court’s view of the reliability of juvenile convictions
is based predominantly on a belief that a judge’s determination of guilt
does not differ from jury deliberations. However, such a view is highly
questionable.160 Studies demonstrate that juries acquit more often than
judges.161 Juvenile judges often see the same witnesses before them in
154
155
156
157
Id. at 249.
Smalley, 294 F.3d at 1032.
Apprendi, 530 U.S. at 476.
The Court’s exact language is:
[T]here is a vast difference between accepting the validity of a prior judgment of
conviction entered in a proceeding in which the defendant had the right to a jury trial
and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and
allowing the judge to find the required fact under a lesser standard of proof.
Id. at 496.
158 Id.
159 Id. at 1033.
160 See, e.g., Ainsworth, supra note 65, at 1122-26; Martin Guggenheim & Randy Hertz,
Reflections on Judges, Juries, and Justice: Ensuring the Fairness of Juvenile Delinquency Trials,
33 WAKE FOREST L. REV. 553 (1998) (arguing that the Supreme Court’s assumption that
underlies McKeiver, namely that a judge is similar to a jury in terms of fact-finding, is erroneous).
161 To defend their assertion that judges convict more often than juries, Guggenheim and Hertz
rely on a study by Harry Kalven Jr. and Hans Zeisel. The study showed that juries were less
lenient than judges in fewer than 5 percent of cases reviewed and more lenient than judges in
almost 20 percent. Id. at 563. Guggenheim and Hertz admit that a 1983 study finds to the
contrary. See James P. Levine, Jury Toughness: The Impact of Conservatism on Criminal Court
2005]
BUT I WAS JUST A KID!
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the courtroom—police, probation officers, etc.—and have predetermined notions of their credibility that certainly would differ from
those of a jury witnessing the participants for the first time.162
Additionally, during the course of a trial, judges will be confronted with
inadmissible evidence, sometimes conclusive of guilt. The notion that
the judge is capable of ignoring this evidence is speculative at best.163
Finally, the juvenile justice system was not created to parallel the
criminal justice system. Historically, there has been less concern with
the reliability of juvenile convictions because juveniles were not being
imprisoned. Over time, juveniles have been given some, but not all, of
the protections mandated in the criminal justice system. Yet, despite the
fact that juvenile convictions are obtained without these protections, the
Eighth and Third Circuits assume that convictions obtained with full
due process are the equivalent of those obtained without the same due
process. From this assumption it follows that what is reliable for a
conviction in the unique, rehabilitative, juvenile setting is also reliable
for a purely punitive adult sentence enhancement trial. In McKeiver, the
Supreme Court held that juvenile proceedings without the right to a jury
were reliable enough for the rehabilitative purposes of the juvenile
court. However, the Court has never held that without the right to a
jury, there is enough reliability for adult punishment.164
B.
Reading Apprendi Consistent with McKeiver: Forcing the
Legislature’s Hands on the Juvenile Justice “Deal”
The problems with using juvenile convictions as sentence
enhancement factors come into focus when one reads Apprendi and
McKeiver together. McKeiver holds that because juveniles do not
receive adult punishment, they do not need full due process rights.
Apprendi and its progeny should be read to hold that only convictions
that were obtained with full due process rights are exempt from the jury
presentment requirement. Thus, it follows that juvenile convictions
obtained without a jury should not be the basis for a sentence
enhancement.
Such a reading would not sit well with those who wish to get tough
Verdicts, 29 CRIME & DELINQ. 71, 85 (1983). However, this study has been criticized because of
methodological flaws not found in the former. See Michael J. Saks, What do Jury Experiments
Tell Us About How Juries (Should) Make Decisions?, 6 S. CAL. INTERDISC. L.J. 1, 44-45 (1997)
(comparing the Kalven and Zeisel study to the Levine study).
162 Ainsworth, supra note 65, at 1124.
163 Guggenheim & Hertz, supra note 160 (providing extensive examples of how jury trial and
bench trials differ, and concluding that there are fundamental differences between them.).
164 The Eighth and Third Circuits essentially argued that “a conviction that is valid for one
purpose therefore must be valid for all purposes.” Feld, supra note 108, at 1224.
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on crime, especially juvenile crime. In today’s political climate, as
exemplified by the passage of the ACCA in 1984, rehabilitation is
discouraged in favor of harsh sentences for adults and juveniles.165
Legislatures fail to differentiate between juvenile adjudications and
adult convictions, continually increasing the consequences for juvenile
convictions. But, neither Congress nor the Court has declared the
juvenile justice experiment over, leaving juveniles in a legal no-man’s
land: they receive juvenile protections and adult repercussions.
McKeiver still represents the law of the land and will remain so
unless legislatures significantly alter the juvenile justice system.
However, this is unlikely to happen as more than three quarters of the
states deny a juvenile defendant the right to a jury trial.166 Thus, despite
a movement away from rehabilitation, a deal between the state and the
juvenile still exists: the juvenile ideally receives treatment and in return
surrenders certain procedural protections.
Prosecutors, however, violate the deal when they use a prior
juvenile adjudication as a predicate offense for the purpose of sentence
enhancement. By that time, the defendant already met his part of the
deal as a juvenile, by forgoing the right to a jury trial. The state fails to
hold up its end of the deal when it treats the juvenile adjudication as an
adult conviction. Allowing the state to do so condones a bait-andswitch.
Apprendi, therefore, should be read to forbid this type of duplicity
on the part of the state. By defining “prior convictions” as convictions
165 See, e.g., Ala. Code § 12-15-71.1(a) (b) (Supp. 1994) (imposing mandatory one year
sentence for certain juvenile offenses); Tex. Fam. Code Ann. § 53.045 (West Supp. 1992)
(imposing sentence up to 40 years for juveniles who commit certain serious felonies); CAL.
PENAL CODE § 667(b)-(i) (West 1999), amended by Cal. Stat. 12 § 1 (West 1994) (otherwise
known as “Three Strikes” legislation, this statute mandates sentences of 25 years to life for an
offender that has accumulated three prior convictions, it includes juvenile adjudications). This
has been the subject of numerous scholarly articles. See, e.g., Tonya K. Cole, Counting Juvenile
Adjudications as Strikes Under California’s ‘Three Strikes’ Law: An Undermining of the
Separateness of the Adult and Juvenile Systems, 19 J. JUV. L. 335 (1998) (arguing that
California’s “Three Strikes” legislation is the complete opposite of the goals of the juvenile
justice system); Autumn D. McCullogh, Three Strikes and You’re In (For Life): An Analysis of
the California Three Strikes Law as Applied to Convictions for Misdemeanor Conduct, 24 T.
JEFFERSON L. REV. 277 (2002) (discussing California’s “Three Strikes” law and how it impacts
those charged with misdemeanors); David C. Owen, Striking Out Juveniles: A Reexamination of
the Right to a Jury Trial in Light of California’s “Three Strikes” Legislation, 29 U.C. DAVIS L.
REV. 437 (1996) (arguing that because juvenile adjudications count as a strike, juveniles should
be afforded a jury trial); Amanda K. Packel, Juvenile Justice and the Punishment of Recidivists
Under California’s Three Strikes Law, 90 CAL. L. REV. 1157 (2002) (arguing that California
should overrule a case allowing for the use of juvenile adjudications as one strike under the
California “Three Strikes” Law).
166 Ainsworth, supra note 65, at 1122 (the only states that grant juveniles the right to a jury
trial are Arkansas, Colorado, Massachusetts, Minnesota, Montana, New Mexico, Oklahoma,
Tennessee, Texas, West Virginia, Wisconsin, and Wyoming).
2005]
BUT I WAS JUST A KID!
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that satisfy the reasonable doubt and jury guarantees167 the Court may
force the hand of legislatures. In McKeiver, the Court said it would not
declare the juvenile justice system dead until legislatures explicitly
stated their desire to do so. Forbidding the use of juvenile adjudications
for sentence enhancement unless a jury is present would force
legislatures either to abandon such enhancements and retain some
aspect of a rehabilitative juvenile justice system, or to declare the
experiment over and provide juveniles with full due process.
C.
A Modest Proposal to Remedy to the Problem: Juvenile Waivers
Despite McKeiver’s statement that only legislatures can end the
juvenile justice system, it is unlikely that the juvenile justice experiment
will end soon. The populace is split: a substantial segment of society
still believes that juveniles should be treated like juveniles not adults. 168
However, others believe that some, if not all juvenile criminals may be
beyond the rehabilitative focus of the juvenile justice system and
deserving of adult punishment regardless of their age.169 Thus, a
political consensus about whether a juvenile justice system should exist
may be difficult to achieve.
If the juvenile justice system continues to exist, a waiver system
may be the best way to effectively address the concerns of both sides of
the argument. Juvenile justice advocates can be satisfied if waivers are
utilized for only those juveniles who are beyond the rehabilitative focus
of the juvenile justice system. This is consistent with the vision of the
Progressive Reformers because even they recognized that some children
were not suited for juvenile court because they were not likely to be
rehabilitated.170
167
168
See Apprendi, 530 U.S. 466, 496 (2000).
Many commentators remain opposed to removing juveniles from the juvenile court. See,
e.g., Christina Dejong & Eve Schwitzer Merrill, Getting “Tough on Crime:” Juvenile Waiver and
the Criminal Court, 27 OHIO N.U. L. REV. 175, 196 (2001) (arguing that trying children as adults
offers them no chance at rehabilitation and therefore, society should utilize all the resources of the
juvenile justice system before resorting to juvenile waiver); Joshua T. Rose, Innocence Lost: The
Detrimental Effect of Automatic Waiver Statutes on Juvenile Justice, 41 BRANDEIS L.J. 977
(2003) (arguing that automatic waiver statutes should be repealed).; Marisa Slaten, Juvenile
Transfers to Criminal Court: Whose Right is it Anyway?, 55 RUTGERS L. REV. 821, 824 (2003)
(arguing that because of the disparate treatment of poor and minority juveniles legislative and
judicial waiver is poor public policy).
169 Juvenile offenders are increasingly described as “parasitic,” “animalistic,” and “depraved.”
There is a growing perception that juveniles, solely because of their age, receive leniency when it
is not deserved. This has led to an ideology that only the criminal court is capable of sufficiently
punishing juvenile offenders. See Charles J. Aron & Michele S.C. Hurley, Juvenile Justice at the
Crossroads, CHAMPION, Jun. 1998, at 10-11, available at http://www.nacdl.org/champion/
articles/98jun01.htm (last visited Nov. 8, 2004).
170 Candace Zierdt, The Little Engine that Arrived at the Wrong Station: How to Get Juvenile
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After the creation of the separate juvenile court system, states
began to find ways to try certain juveniles as adults.171 Typically, such
decisions were based on the seriousness of the crime.172 Many states
continue to accomplish this through the use of legislative or judicial
waivers173 that remove juveniles from the juvenile court and place them
in front of a jury in a criminal court.174 Ideally, the waiver system
would function as the Progressive Reformers envisioned it and waivers
would be used sparingly.175 Primarily, it would be used for older
juveniles who commit particularly heinous crimes like armed robbery,
murder, and rape,176 although the decision to waive the jurisdiction of
the juvenile court would consider not only the seriousness of the crime,
but also a professional, objective assessment of the juvenile’s
“amenability to treatment.”177
On the other hand, those with concerns about juvenile crime would
be assuaged because juveniles who pose the greatest threat to society,
Justice Back on the Right Track, 33 U.S.F. L. REV. 401, 416 (1999).
171 Barry Feld, The Juvenile Court Meets the Principle of the Offense: Legislative Changes in
Juvenile Waiver Statutes, 78 J. CRIM. L. & CRIMINOLOGY 471, 478 (1987).
172 Eric Fritsch & Craig Hemmens, Juvenile Waiver in the United States 1979-1995: A
Comparison and Analysis of State Waiver Statutes, 46 JUV. & FAM. CT. J. 17, 29-31 (1995).
173 A judicial waiver is at the discretion of the juvenile judge who can waive jurisdiction so the
case can be heard in criminal court. Likewise, a legislative waiver is an automatic waiver that
waives the jurisdiction of the juvenile court for juveniles convicted of certain crimes. Juvenile
waivers have been the subject of numerous law review articles. For a background on the use of
juvenile waivers, and an understanding of the benefits and problems with the system, see
generally Christine Chamberlin, Not Kids Anymore: A Need for Punishment and Deterrence in
the Juvenile Justice System, 42 B.C. L. REV. 391, 399 (2001) (arguing that automatic transfers are
needed for certain juvenile defendants for the purpose of punishment and deterrence); Cynthia
Conward, The Juvenile Justice System: Not Necessarily In The Best Interests Of Children, 33
NEW ENG. L. REV. 39, 55 (1998) (noting that black juvenile offenders were involved in over fifty
percent more cases than those involving white youth in which judicial waiver was mandated);
Eric K. Klein, Dennis the Menace or Billy the Kid: An Analysis of the Role of Transfer to
Criminal Court in Juvenile Justice, 35 AM. CRIM. L. REV. 371 (1998) (arguing that judicial and
legislative waiver is a reactionary response to the problems of youth crime that fails to meet the
needs of the juvenile offender); Joshua T. Rose, supra note 168 (arguing for a repeal of legislative
and judicial waiver statutes).
174 The Supreme Court has listed eight factors a juvenile court judge must consider in deciding
whether to transfer a juvenile to adult court including the seriousness of the offense, the maturity
of the juvenile, any previous record, and the likelihood of rehabilitation in the juvenile system.
See Kent v. United States, 383 U.S. 541, 561 (1966).
States have been increasing their use of waiver as the focus has shifted from rehabilitation
to punishment. In the 1990s, forty-four states and the District of Columbia passed legislation
allowing an expansion of the use of waiver. Additionally, many states have lowered the
minimum age at which a juvenile can be transferred to criminal court. See Chamberlin, supra
note 173.
175 DEAN J. CHAMPION & G. LARRY MAYS, TRANSFERRING JUVENILES TO CRIMINAL
COURTS: TRENDS AND IMPLICATIONS FOR CRIMINAL JUSTICE 59 (1991).
176 This is consistent with the traditional approach that waiver is appropriate where violent
crimes “provoked strong societal indignation and fear for public safety.” Beth Wilbourn, Juvenile
Justice and the Criminal Law, 23 AM. J. CRIM. L. 633 (1996) (citation omitted).
177 Zierdt, supra note 170, at 418.
2005]
BUT I WAS JUST A KID!
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and those most likely to be repeat offenders, would be tried in criminal
court, subject to adult repercussions. Politically, a system that tries
juvenile rapists and murderers in criminal court will unlikely meet
heavy opposition.
A solution based on the use of juvenile waivers lacks perfection.
However, if Apprendi is interpreted, as it should be, to forbid the use of
juvenile adjudications for the purposes of sentence enhancement,
juvenile waiver may represent the best way to provide the proper
balance between rehabilitation and punishment. The vast majority of
juvenile defendants would remain in juvenile court and—as the
McKeiver Court hoped—would receive a rehabilitative disposition in
their best interest. If an individual with a prior juvenile adjudication
should appear in front of a judge as an adult, Apprendi would forbid that
adjudication from being transformed into a regular criminal conviction.
On the other hand, those juvenile cases unfit for the juvenile system
would be removed to the adult system. If they should appear in front of
a judge later in life, Apprendi will no longer present a problem if the
juvenile conviction is used to enhance their sentences.
CONCLUSION
Thirty-five years ago, the Supreme Court refused to declare the
juvenile justice experiment over by granting juveniles a jury trial.
Despite legislatures getting tough on crime, neither they nor the courts
explicitly declared the juvenile justice experiment dead. Thus,
McKeiver, which denied juveniles the right to a jury trial because of the
unique rehabilitative focus of the juvenile justice system, remains good
law.
Reading Apprendi to allow states to use juvenile adjudications as
enhancement factors under the ACCA and other similar statutes, as the
Eighth and Third Circuits do, unreasonably expands McKeiver.
Although the Supreme Court found that a jury was not required to
provide reliability in the juvenile setting, it does not follow that there is
enough reliability for the collateral consequences that such statutes
attach to juvenile adjudications.