# Debacker v. Brainard/Dissent Douglas

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* Case Syllabus
* Per Curiam Opinion of the Court
* Dissenting Opinions Black Douglas
United States Supreme Court
396 U.S. 28
Debacker v. Brainard
Argued: Oct. 13, 14, 1969. ---
Mr. Justice DOUGLAS, dissenting.
In DeStefano v. Woods, 392 U.S. 631, 635, 88 S.Ct. 2093, 2096, 20 L.Ed.2d 1308, I stated my view that the decisions in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, which guaranteed to adults in serious criminal cases and contempts the right to a trial by jury, should be given retroactive effect. In light of this view, I am unable to join the Court's per curiam opinion in this case, holding that because appellant's juvenile court hearing was held prior to the date of the decisions in Duncan and Bloom the Court is precluded from deciding appellant's right to a jury trial.
I would reach the merits and hold that the Sixth and Fourteenth Amendments require a jury trial as a matter of right where the delinquency charged is an offense that, if the person were an adult, would be a crime triable by jury. Such is this case, for behind the facade of delinquency is the crime of forgery.
As originally conceived, the juvenile court was to be a clinic, not a court; the judge and all of the attendants were visualized as white-coated experts there to supervise, enlighten, and cure-not to punish.
These white-coated people were surrogates, so to speak, of the natural parent. As stated in one of the leading cases:
'To save a child from becoming a criminal, or from continuing in a career of crime, to end in maturer years in public punishment and disgrace, 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, to save it and to shield it from the consequences of persistence in a career of waywardness, nor is the state, when compelled, as parens patriae, to take the place of the father for the same purpose, required to adopt any process as a means of placing its hands upon the child to lead it into one of its courts. When the child gets there and the court with the power to save it, determines on its salvation, and not its punishment, it is immaterial how it got there. The act simply provides how children who ought to be saved may reach the court to be saved.' Commonwealth v. Fisher, 213 Pa. 48, 53, 62 A. 198, 200 (1905).
This new agency-which stood in the shoes of the parent or guardian-was to draw on all the medical, psychological, and psychiatric knowledge of the day and transform the delinquent. These experts motivated by love were to transform troubled children into normal ones, saving them from criminal careers.
Many things happened that prevented this dream from becoming a widespread reality. First, municipal budgets were not equal to the task of enticing experts to enter this field in large numbers. Second, such experts as we had, notably the psychiatrists and analysts, were drawn away by the handsome fees they could receive for rehabilitating the rich. Third, the love and tenderness alone, possessed by the white-coated judge and attendants, were not sufficient to untangle the web of subconscious influences that possessed the troubled youngster. Fourth, correctional institutions designed to care for these delinquents often became miniature prisons with many of the same vicious aspects as the adult models. Fifth, the secrecy of the juvenile proceedings led to some overreaching and arbitrary actions.
As Mr. Justice Fortas stated in Kent v. United States, 383 U.S. 541, 556, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84, 'There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.'
In Kent, the Court held that a valid waiver of the 'exclusive' jurisdiction of the Juvenile Court of the District of Columbia required 'a hearing, including access by * * * counsel to the social records and probation or similar reports which presumably are considered by the court, and * * * a statement of reasons for the Juvenile Court's decision.' Id., at 557, 86 S.Ct., at 1055. Although the opinion in that case emphasized that 'the basic requirements of due process and fairness' be satisfied in such proceedings, id., at 553, 86 S.Ct., at 1053, the decision itself turned on the language of a federal statute.
The first expansive treatment of the constitutional requirements of due process in juvenile court proceedings was undertaken in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. That case involved a 15-year-old boy who had been committed by an Arizona juvenile court to the State Industrial School 'for the period of his minority, unless sooner discharged by due process of law' for allegedly making lewd telephone calls. The Court in Gault abandoned the view that due process was a concept alien to the philosophy and work of the juvenile courts. Mr. Justice Fortas, speaking for the Court, stated: 'Under our Constitution, the condition of being a boy does not justify a kangaroo court.' Id., at 28, 87 S.Ct., at 1444. The Court held that a juvenile is entitled to adequate and timely notice of the charges against him, the right to counsel, the right to confront and cross-examine witnesses, and the privilege against self-incrimination.
Since the decision in Gault, lower courts have divided on the question whether there is a right to jury trial in juvenile proceedings. Those courts which have granted the right felt that it was implicit in Gault. Nieves v. United States, 280 F.Supp. 994 (D.C.S.D.N.Y.1968); Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968); In re Rindell, 2 BNA Cr.L. 3121 (Providence, R. I., Fam. Ct., Jan. 1968). Those who have denied the right have reasoned either that jury trial is not a dundamental right applicable to the States or that it is not consistent with the concept of a juvenile court. People v. Anonymous, 56 Misc.2d 725, 289 N.Y.S.2d 782 (Sup.Ct.1968); Commonwealth v. Johnson, 211 Pa.Super. 62, 234 A.2d 9 (1967). Duncan and Bloom have negated the former reason. Whether a jury trial is in conflict with the juvenile court's underlying philosophy is irrelevant, for the Constitution is the Supreme Law of the land.
Given the fundamental nature of the right to jury trial as expressed in Duncan and Bloom, there is, as I see it, no constitutionally sufficient reason to deprive the juvenile of this right. The balancing of the rehabilitative purpose of the juvenile proceeding with the due process requirement of a jury trial is a matter for a future Constitutional Convention.
The idea of a juvenile court certainly was not the development of a juvenile criminal court. It was to have a healthy specialized clinic, not to conduct criminal trials in evasion of the Constitution and Bill of Rights. Where there is a criminal trial charging a criminal offense, whether in conventional terms or in the language of delinquency, all of the procedural requirements of the Constitution and Bill of Rights come into play.
I would reverse this judgment.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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