# McKeiver v. Pennsylvania/Dissent Douglas

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United States Supreme Court
403 U.S. 528
McKeiver v. Pennsylvania
Argued: Dec. 9 and 10, 1970. --- Decided: June 21, 1971
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice MARSHALL concur, dissenting.
These cases from Pennsylvania and North Carolina present the issue of the right to a jury trial for offenders charged in juvenile court and facing a possible incarceration until they reach their majority. I believe the guarantees of the Bill of Rights, made applicable to the States by the Fourteenth Amendment, require a jury trial.
In the Pennsylvania cases one of the appellants was charged with robbery (Pa.Stat.Ann., Tit. 18, § 4704 (1963)), larceny (Pa.Stat.Ann., Tit. 18, § 4807), and receiving stolen goods (Pa.Stat.Ann., Tit. 18, § 4817) as acts of juvenile delinquency. Pa.Stat.Ann., Tit. 11, § 246 (1965). He was found a delinquent and placed on probation. The other appellant was charged with assault and battery on a police officer (Pa.Stat.Ann., Tit. 18, § 4708) and conspiracy (Pa.Stat.Ann., Tit. 18, § 4302) as acts of juvenile delinquency. On a finding of delinquency he was committed to a youth center. Despite the fact that the two appellants, aged 15 and 16, would face potential incarceration until their majority, Pa.Stat.Ann., Tit. 11, § 250, they were denied a jury trial.
In the North Carolina cases petitioners are students, from 11 to 15 years of age, who were charged under one of three criminal statutes: (1) 'disorderly conduct' in a public building, N.C.Gen.Stat. § 14-132 (1969); (2) 'wilful' interruption or disturbance of a public or private school, N.C.Gen.Stat. § 14-273; or (3) obstructing the flow of traffic on a highway or street, N.C.Gen.Stat. § 20-174.1 (1965 and Supp.1969).
Conviction of each of these crimes would subject a person, whether juvenile or adult, to imprisonment in a state institution. In the case of these students the possible term was six to 10 years; it would be computed for the period until an individual reached the age of 21. Each asked for a jury trial which was denied. The trial judge stated that the hearings were juvenile hearings, not criminal trials. But the issue in each case was whether they had violated a state criminal law. The trial judge found in each case that the juvenile had committed 'an act for which an adult may be punished by law' and held in each case that the acts of the juvenile violated one of the criminal statutes cited above. The trial judge thereupon ordered each juvenile to be committed to the state institution for the care of delinquents and then placed each on probation for terms from 12 to 24 months.
We held in In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527, that 'neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.' As we noted in that case, the Juvenile Court movement was designed to avoid procedures to ascertain whether the child was 'guilty' or 'innocent' but to bring to bear on these problems a 'clinical' approach. Id., at 15, 16, 87 S.Ct., at 1437, 1438. It is, of course, not our task to determine as a matter of policy whether a 'clinical' or 'punitive' approach to these problems should be taken by the States. But where a State uses its juvenile court proceedings to prosecute a juvenile for a criminal act and to order 'confinement' until the child reaches 21 years of age or where the child at the threshold of the proceedings faces that prospect, then he is entitled to the same procedural protection as an adult. As Mr. Justice Black said in In re Gault, supra, at 61, 87 S.Ct., at 1461 (concurring):
'Where a person, infant or adult, can be seized by the State, charged, and convicted for violating a state criminal law, and then ordered by the State to be confined for six years, I think the Constitution requires that he be tried in accordance with the guarantees of all the provisions of the Bill of Rights made applicable to the States by the Fourteenth Amendment. Undoubtedly this would be true of an adult defendant, and it would be a plain denial of equal protection of the laws-an invidious discrimination-to hold that others subject to heavier punishments could, because they are children, be denied these same constitutional safeguards.'
Just as courts have sometimes confused delinquency with crime, so have law enforcement officials treated juveniles not as delinquents but as criminals. As noted in the President's Crime Commission Report:
'In 1965, over 100,000 juveniles were confined in adult institutions. Presumably most of them were there because no separate juvenile detention facilities existed. Nonetheless, it is clearly undesirable that juveniles be confined with adults.' President's Commission on Law Enforcement and Administration of Justice, Challenge of Crime in a Free Society 179 (1967).
Even when juveniles are not incarcerated with adults the situation may be no better. One Pennsylvania correctional institution for juveniles is a brick building with barred windows, locked steel doors, a cyclone fence topped with barbed wire, and guard towers. A former juvenile judge described it as 'a maximum security prison for adjudged delinquents.' In re Bethea, 215 Pa.Super. 75, 76, 257 A.2d 368, 369.
In the present cases imprisonment or confinement up to 10 years was possible for one child and each faced at least a possible five-year incarceration. No adult could be denied a jury trial in those circumstances. Duncan v. Louisiana, 391 U.S. 145, 162, 88 S.Ct. 1444, 1454, 20 L.Ed.2d 491. The Fourteenth Amendment, which makes trial by jury provided in the Sixth Amendment applicable to the States, speaks of denial of rights to 'any person,' not denial of rights to 'any adult person'; and we have held indeed that where a juvenile is charged with an act that would constitute a crime if committed by an adult, he is entitled to be tried under a standard of proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368.
In DeBacker v. Brainard, 396 U.S. 28, 33, 35, 90 S.Ct. 163, 166, 167, 24 L.Ed.2d 148 Mr. Justice Black and I dissented from a refusal to grant a juvenile, who was charged with forgery, a jury trial merely because the case was tried before Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, was decided. Mr. Justice Black, after noting that a juvenile being charged with a criminal act was entitled to certain constitutional safeguards, viz., notice of the issues, benefit of counsel, protection against compulsory self-incrimination, and confrontation of the witnesses against him, added:
'I can see no basis whatsoever in the language of the Constitution for allowing persons like appellant the benefit of those rights and yet denying them a jury trial, a right which is surely one of the fundamental aspects of criminal justice in the English-speaking world.' 396 U.S., at 34, 90 S.Ct., at 166.
I added that by reason of the Sixth and Fourteenth Amendments the juvenile is entitled to 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.' Id., at 35, 90 S.Ct., at 167.
Practical aspects of these problems are urged against allowing a jury trial in these cases. They have been answered by Judge De Ciantis of the Family Court of Providence, Rhode Island, in a case entitled In the Matter of McCloud, decided January 15, 1971. A juvenile was charged with the rape of a 17-year-old female and Judge De Ciantis granted a motion for a jury trial in an opinion, a part of which I have attached as an appendix to this dissent. He there concludes that 'the real traumatic' experience of incarceration without due process is 'the feeling of being deprived of basic rights.' He adds:
'The child who feels that he has been dealt with fairly and not merely expediently or as speedily as possible will be a better prospect for rehabilitation. Many of the children who come before the court come from broken homes, from the ghettos; they often suffer from low self-esteem; and their behavior is frequently a symptom of their own feelings of inadequacy. Traumatic experiences of denial of basic rights only accentuate the past deprivation and contribute to the problem. Thus, a general societal attitude of acceptance of the juvenile as a person entitled to the same protection as an adult may be the true beginning of the rehabilitative process.' Judge De Ciantis goes on to say that '(t)rial by jury will provide the child with a safeguard against being prejudged' by a judge who may well be prejudiced by reports already submitted to him by the police or caseworkers in the case. Indeed the child, the same as the adult, is in the category of those described in the Magna Carta:
'No freeman may be * * * imprisoned * * * except by the lawful judgment of his peers, or by the law of the land.'
These cases should be remanded for trial by jury on the criminal charges filed against these youngsters.
De Ciantis, J.: The defendant, who will hereinafter be referred to as a juvenile, on the sixth day of September, 1969, was charged with Rape upon a female chile, seventeen years old, in violation of Title 11, Chapter 37, Section 1, of the General Laws of 1956.
The fact is that the procedures which are now followed in juvenile cases are far more traumatic than the potential experience of a jury trial. Who can say that a boy who is arrested and handcuffed, placed in a lineup, transported in vehicles designed to convey dangerous criminals, placed in the same kind of a cell as an adult, deprived of his freedom by lodging him in an institution where he is subject to be transferred to the state's prison and in the 'hole' has not undergone a traumatic experience?
The experience of a trial with or without a jury is meant to be impressive and meaningful. The fact that a juvenile realizes that his case will be decided by twelve objective citizens would allow the court to retain its meaningfulness without causing any more trauma than a trial before a judge who perhaps has heard other cases involving the same juvenile in the past and may be influenced by those prior contacts. To agree that a jury trial would expose a juvenile to a traumatic experience is to lose sight of the real traumatic experience of incarceration without due process. The real traumatic experience is the feeling of being deprived of basic rights. (In) In the matter of Reis, this Court indicated the inadequacies of the procedure under which our court operates. A judge who receives facts of a case from the police and approves the filing of a petition based upon those facts may be placed in the untenable position of hearing a charge which he has approved. His duty is to adjudicate on the evidence introduced at the hearing and not be involved in any pre-adjudicatory investigation.
It is contrary to the fundamental principles of due process for the court to be compelled, as it is in this state, to act as a one-man grand jury, then sit in judgment on its own determination arising out of the facts and proceedings which he conducted. This responsibility belongs with a jury.
An argument has been made that to allow jury trials would cause a great backlog of cases and, ultimately, would impair the functioning of the juvenile court. The fact however is that there is no meaningful evidence that granting the right to jury trials will impair the function of the court. Some states permit jury trials in all juvenile court cases; few juries have been demanded, and there is no suggestion from these courts that jury trials have impeded the system of juvenile justice.
In Colorado, where jury trials have been permitted by statute, Judge Theodore Rubin of the Denver Juvenile Court has indicated that jury trials are an important safeguard and that they have not impaired the functioning of the Denver Juvenile Courts. For example, during the first seven months of 1970, the two divisions of the Denver Juvenile Court have had fewer than two dozen jury trials, in both delinquency and dependency-neglect cases. In Michigan, where juveniles are also entitled to a jury trial, Judge Lincoln of the Detroit Juvenile Court indicates that his court has had less than five jury trials in the year 1969 to 1970.
The recent Supreme Court decision of Williams v. Florida (399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446) (June 22, 1970), which held that the constitutional right to trial by jury in criminal cases does not require a twelve-member jury, could be implemented to facilitate the transition to jury trials. A jury of less than twelve members would be less cumbersome, less 'formal,' and less expensive than the regular twelve-member jury, and yet would provide that accused with objective fact-finders.
In fact the very argument of expediency, suggesting 'supermarket' or 'assembly line' justice is one of the most forceful arguments in favor of granting jury trials. By granting the juvenile the right to a jury trial, we would, in fact, be protecting the accused from the judge who is under pressure to move the cases, the judge with too many cases and not enough time. It will provide a safeguard against the judge who may be prejudiced against a minority group or who may be prejudiced against the juvenile brought before him because of some past occurrence which was heard by the same judge.
There have been criticisms that juvenile court judges, because of their hearing caseload, do not carefully weigh the evidence in the adjudicatory phase of the proceedings. It is during this phase that the judge must determine whether in fact the evidence has been established beyond a reasonable doubt that the accused committed the acts alleged in the petition. Regardless of the merit of these criticisms, they have impaired the belief of the juveniles of the bar and of the public as to the opportunity for justice in the juvenile court. Granting the juvenile the right to demand that the facts be determined by a jury will strengthen the faith of all concerned parties in the juvenile system.
It is important to note, at this time, a definite side benefit of granting jury trials, i.e., an aid to rehabilitation. The child who feels that he has been dealt with fairly and not merely expediently or as speedily as possible will be a better prospect for rehabilitation. Many of the children who come before the court come from broken homes, from the ghettos; they often suffer from low self-esteem; and their behavior is frequently a symptom of their own feelings of inadequacy. Traumatic experiences of denial of basic rights only accentuate the past deprivation and contribute to the problem. Thus, a general societal attitude of acceptance of the juvenile as a person entitled to the same protection as an adult may be the true beginning of the rehabilitative process.
Public trial in the judgment of this Court does not affect the juvenile court philosophy.
(In) In re Oliver Mr. Justice Black reviews the history of the public trial. Its origins are obscure, but it seems to have evolved along with the jury trial guarantee in English common law, and was then adopted as a provision of the Federal Constitution as well as by most state constitutions. Among the benefits of a public trial are the following:
1. 'Public trials come to the attention of key witnesses unknown to the parties. These witnesses may then voluntarily come forward and give important testimony.'
2. 'The spectators learn about their government and acquire confidence in their judicial remedies.'
3. 'The knowledge that every criminal trial is subject to contemporaneous review in the (forum) of public opinion is an effective restraint on possible abuse of judicial power.' (P. 270, 68 S.Ct. p. 506.)
Justice Black has nothing to say on the question of whether a public trial acts as a deterrent to crime, but it is clear that he believes publicity to improve the quality of criminal justice, both theoretically and practically.
As for the juvenile trial issue, he writes:
'Whatever may be the classification of juvenile court proceedings, they are often conducted without admitting all the public. But it has never been the practice to wholly exclude parents, relatives, and friends, or to refuse juveniles the benefit of counsel.' (P. 266, 68 S.Ct. p. 504.)
In fact, the juvenile proceedings as presently conducted are far from secret. Witnesses for the prosecution and for the defense, social workers, court reporters, students, police trainees, probation counselors, and sheriffs are present in the courtroom. Police, the Armed Forces, the Federal Bureau of Investigation obtain information and have access to the police files. There seems no more reason to believe that a jury trial would destroy confidentiality than would witnesses summoned to testify.
The Court also notes the report of the PRESIDENT'S COMMISSION O(N) LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 75 (1967), wherein it is stated:
'A juvenile's adjudication record is required by the law of most jurisdictions to be private and confidential; in practice the confidentiality of those reports is often violated.' Furthermore, '(s)tatutory restrictions almost invariably apply only to court records, and even as to those the evidence is that many courts routinely furnish information to the FBI and the military, and on request to government agencies and even to private employers.'
The Court is also aware of the argument that the juvenile court was created to develop judges who were experts in sifting out the real problems behind a juvenile's breaking the law; therefore, to place the child's fate in the hands of a jury would defeat that purpose. This will, however, continue to leave the final decision of disposition solely with the judge. The role of the jury will be only to ascertain whether the facts, which give the court jurisdiction, have been established beyond a reasonable doubt. The jury will not be concerned with social and psychological factors. These factors, along with prior record, family and educational background, will be considered by the judge during the dispositional phase.
Taking into consideration the social background and other facts, the judge, during the dispositional phase, will determine what disposition is in the best interests of the child and society. It is at this stage that a judge's expertise is most important, and the granting of a jury trial will not prevent the judge from carrying out the basic philosophy of the juvenile court.
Trial by jury will provide the child with a safeguard against being prejudged. The jury clearly will have no business in learning of the social report or any of the other extraneous matter unless properly introduced under the rules of evidence. Due process demands that the trier of facts should not be acquainted with any of the facts of the case or have knowledge of any of the circumstances, whether through officials in his own department or records in his possession. If the accused believes that the judge has read an account of the facts submitted by the police or any other report prior to the adjudicatory hearing and that this may prove prejudicial, he can demand a jury and insure against such knowledge on the part of the trier of the facts.
Counsel also questions whether a child can waive his right to a jury trial or, in fact, whether a parent or counsel may waive.
When the waiver comes up for hearing, the Court could, at its discretion, either grant or refuse the juvenile's waiver of a jury trial, and/or appoint a guardian or legal counsel to advise the child.
My experience has shown that the greatest percentage of juveniles who appear before the court in felony cases have lived appalling lives due to parental neglect and brutality, lack of normal living conditions, and poverty. This has produced in them a maturity which is normally acquired much later in life. They are generally well aware of their rights in a court of law. However, in those cases where a child clearly needs guidance, the court-appointed guardian or attorney could explain to him the implications of a waiver. The juvenile's rights and interests would thus be protected every bit as stringently as they are today before he is allowed to plead guilty or not guilty to a complaint. A guilty plea is, after all, a waiver of the right to trial altogether.
Counsel is placed with the responsibility of explaining to the juvenile the significance of guilty and nolo contendere pleas, of instructing the juvenile on the prerogative to take the witness stand, and is expected to advise his client in the same manner as he would an adult about to stand trial. And now counsel suggests to the Court that counsel is not capable of explaining and waiving the right to a jury trial. The Court fails to see the distinction between this waiver and the absolute waiver, to wit, a guilty plea. Counsel should act in the best interest of his client, even if this may be in conflict with the parents. On a number of occasions this Court has appointed counsel for a juvenile whose parents could not afford to retain private counsel, and where the parents' interests were in conflict with those of the child. This procedure will be continued and the Court will continue to rely on the good judgment of the bar.
The Court could easily require that a waiver of a jury trial be made in person by the juvenile in writing, in open court, with the consent and approval of the Court and the attorney representing both the juvenile and the state. The judge could ascertain as to whether the juvenile can intelligently waive his right and, if necessary, appoint counsel to advise the youth as to the implications connected with the waiver. This could be accomplished without any difficulty through means presently available to the Court.
One of the most interesting questions raised is that concerning the right of a juvenile to a trial by his peers. Counsel has suggested that a jury of a juvenile's peers would be composed of other juveniles, that is, a 'teenage jury.' Webster's Dictionary, Second Edition, 1966, defines a peer as an equal, one of the same rank, quality, value. The word 'peers' means nothing more than citizens, In re Grilli, 110 Misc. 45, 179 N.Y.S. 795, 797. The phrase 'judgment of his peers' means at common law, a trial by a jury of twelve men, State v. Simons, 61 Kan. 752, 60 P. 1052. 'Judgment of his peers' is a term expressly borrowed from the Magna Charta, and it means a trial by jury, Ex parte Wagner, 58 Okl.Cr. 161, 50 P.2d 1135. The Declaration of Independence also speaks of the equality of all men. Are we now to say that a juvenile is a second-class citizen, not equal to an adult? The Constitution has never been construed to say women must be tried by their peers, to wit, by all-female juries, or Negroes by all-Negro juries.
The only restriction on the makeup of the jury is that there can be no systematic exclusion of those who meet local and federal requirements, in particular, voting qualifications.
The Court notes that presently in some states 18-year-olds can vote. Presumably, if they can vote, they may also serve on juries. Our own legislature has given first passage to an amendment to the Constitution to permit 18-year-olds to vote. Thus, it is quite possible that we will have teenage jurors sitting in judgment of their so-called 'peers.'
The argument that the adjudication of delinquency is not the equivalent of criminal process is spurious. This Court has discussed the futility of making distinctions on the basis of labels in prior decisions. Because the legislature dictates that a child who commits a felony shall be called a delinquent does not change the nature of the crime. Murder is murder; robbery is robbery-they are both criminal offenses, not civil, regardless and independent of the age of the doer.
It is noteworthy that in our statute there is not an express statutory provision indicating that the proceedings are civil. Trial by jury in Rhode Island is guaranteed to all persons, whether in criminal cases or in civil cases. That right existed prior to the adoption of the Constitution; and certainly whether one is involved in a civil or criminal proceeding of the Family Court in which his 'liberty' is to be 'taken' 'imprisoned' 'outlawed' and 'banished' he is entitled to a trial by jury. (Henry v. Cherry & Webb, 30 R.I. 13, at 30, 73 A. 97).
This Court believes that although the juvenile court was initially created as a social experiment, it has not ceased to be part of the judicial system. In view of the potential loss of liberty at stake in the proceeding, this Court is compelled to accord due process to all the litigants who come before it; and, therefore, all of the provisions of the Bill of Rights, including trial by jury, must prevail.
The Court concludes that the framers of our Constitution never intended to place the power in any one man or official, and take away the 'protection of the law from the rights of an individual.' It meant 'to secure the blessings of liberty to themselves and posterity.' The Constitution was written with the philosophy based upon a composite of all of the most liberal ideas which came down through the centuries; The Magna Charta, the Petition of Rights, the Bill of Rights and the Rules of Common Law; and the keystone is the preservation of individual liberty. All these ideas were carefully inserted in our Constitution.
The juvenile is constitutionally entitled to a jury trial.

## Notes

* ↑ Reis, 7 CrL 2151 (1970).
* ↑ 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682.
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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