LET'S TAKE ANOTHER LOOK AT THE JUVENILE COURT

WINTER, 1964-VOL. XV, NO. 4 13

LET’S TAKE ANOTHER LOOK AT THE JUVENILE COURT

By HON. ROBERT GARDNER*

In July of this year, the first session of the National College of State Trial Judges was held on the campus of the University of Colorado. I was a member of the staff of that college. For one week during that month, an institute for juvenile court judges took place on the same campus. As a trial judge with a juvenile court background, I was con- stantly shocked when the judges from the college referred to the juveniie court judges as “those juvenile people.” Finally, this attitude became crystal- lized in a conversation I had with a Texas judge a t lunch one day. I was defining the juvenile court when the Texan terminated the conversation with this statement: “Gardner, the trouble with the juvenile court is that it isn’t a cowt.”

I am afraid that this attitude on the par t of some of our fellow judges reflects a rather widespread attitude on the par t of the Bench, the Bar, and the Public, that the juvenile court is not a court in the traditional sense, but is some kind of a social worker adjunct to a sociological concept in the handling of young people-an arm of the probation department as it were.

I deny the t ruth of these charges. I think, however, it would be unrealistic to deny the existence of these charges or to deny that their very existence harms the entire juvenile court movement. The questions to be asked are: Do juvenile court judges wish to admit the existence of these charges; do they consider them of sufficient gravity to attempt to do something about them ; and what, if anything, can be done to answer them without destroying the effectiveness of the juvenile court process? With full knowledge of the sensitivity to criticism and suggestion of some juvenile court judges, I do feel that the charges should be recognized, examined, and if there are any steps which may be taken which will effectively answer them without dam- aging the juvenile court, that these steps should a t least receive serious consideration. With this thought in mind and with full recognition of the fact that some of my suggestions may not only be

* Judge of the Superior Court in and for Orange County, Santa Ana, California.

unpopular, but may be without merit, I submit herewith a series of proposals for the consideration of the National Council of Juvenile Court Judges.

As a background for a proper frame of refer- ence for the author, I should say that my own experience in the juvenile court covers a span of seventeen years and runs a gambit from the time when our juvenile court hearings consumed only part of one day per week (with a half dozen probation officers and no specialized services) to a highly specialized full time court serving over a million people (with a large probation staff and a vast complex of services.)

Elevate Juvenile Courts

First, in an effort to upgrade the juvenile court, to enhance its status, and to improve its image (and here I realize I sound like Madison Avenue) I would suggest that wherever possible, the juvenile court be a part of the highest trial court in the state. The juvenile court should never be an “inferior” court. It is my firm belief that the responsibilities of the judge of the juvenile court are the most important of any in our judicial system. Each decision of a judge of this court is of vital and lasting importance to a child, to a family, and to society. Because of this importance, it is little enough to expect tha t in each state these responsibilities be placed in the hands of the court of the highest trial jurisdiction.

Rotate the Judges

My second suggestion is that in those states in which the juvenile court is a part of the general trial court, the practices of assigning judges to full time careers in the juvenile court be discontinued. I am aware that in 1963 the National Council of Juvenile Court judges adopted a resolution support- ing the nonrotation of juvenile court judges into other assignments. This policy does offer the ad- vantage of permitting the judge to develop some expertise in his role and of establishing some con- tinuity to his program. On the other hand, it fos- ters alienation and loss of communication with the balance of the Bench and lends itself to the attitude

14 JUVENILE COURT JUDGES JOURNAL

tbxprcssed in the first paragraph of this article. When one judge is removed physically (and usually geographically) from the rest of the Bench, an in- visible wall grows up between him and the other members of the Bench. This situation lends itself to the statement made recently by Dean Joseph Lohman of the School of Criminology of the Uni- versity of California that “Ordinarily, the people who occupy the juvenile court are persons who have found their way there because for some reason or other they have been shunted aside.”

Restore Court Room Formality

My third suggestion is that traditional court formality be restored to the juvenile court. There is a dignity, a solemnity, and a symbolism in formal judicial proceedings which are now being lost in the informality of the juvenile court. The judge should remove himself from his “informal” status and should resume his traditional position on the Bench -not as a protector, advisor, guardian, or friend, but as a fair, impartial, detached, objective and, if necessary, stern conscience of society. There should never be any question in the mind of anyone in the courtroom, but that the man in the black robe is a judge in the truest sense of the word. Incidentally, if there is any court in which the wearing of the robe is essential, it is in the juvenile court.

As part of this formality, at least during the jurisdictional phase of the case, there should not only be the symbolism mentioned, but there should be formal attention paid to all traditional judicial processes and procedures. At this stage of the proceeding, only legal evidence should be received and this should be received under time-tested and con- stitutionally approved safeguards. Hearings should be prompt, fair, and in accordance with due process.

Establish Separate Courts

My next suggestion is that the present juvenile court which handles abandoned, neglected, dependent and delinquent children in the same court should be divided into two separate courts-into two separate legal entities with two separate names and two separate legal philosophies - one court for dependent children and another for delinquents.

With headlines screaming of mounting juvenile crime, the public understandably takes a dim view of anyone who has been in juvenile court. There is a stigma to juvenile court proceedings, a stigma which may well be carried through life n spite of well-intentioned efforts to keep these proceedings confidential. To the average citizen, a young per-

son who has been in juvenile court is a “Juvie” with all that word connotes - the switchblade knife, the gang rumble, senseless violence and total disregard for authority and the rights of others. While in some jurisdictions, such as California, the juvenile court law distinguishes between dependents and delinquents and rigorousIy keeps the two categories physically separated, it is submitted that this fine distinction in the law is not clear to the public. I have answered enough employment and military questionnaires plus private inquiries to realize that society does not make the legal distinction between dependents and delinquents. The unfortunate dependent child who is handled a t the present time in a court with the same name as the delinquent bears, insofar as the uninformed public is concerned, the brand of “juvie” even though this child has committed no offense and has broken no law. It is a very real injustice that these children must go through life with the stigma of having been in juvenile court.

I suggest that it take something f a r more ob- vious and fa r more dramatic than a fine legal distinction between a dependent and a delinquent to make the necessary distinction between the offend- e r and the non-offender. It is submitted that another name could and would make this distinction. The present juvenile court with its guardianship philosophy (assuming at all times that judicial procedures are followed) is admirably suited to handle the neglected child. This court, however, should be given a new name so that the whole world will know that the youngster brought into i t is not an under age criminal, but is simply the tragic result of en- vironmental factors over which he has no control. Recognizing that juvenile courts ga by various names in various jurisdictions, I would suggest as a generality that the court handling the dependent child be called the Children’s Court and the one handling the delinquent child be called Juvenile Court. Into Children’s Court let us bring the unfortunate, the neglected, abused, abandoned, the victims of cruelty, of neglect and depravity,-but let us exclude from this court, the delinquents.

Admittedly, many of the roots of dependency and delinquency reach into the same unhealthy social background. This reason, i t is assumed, was the basis of co-mingling these categories in the first juvenile court in Chicago in 1899 - and slavishly followed since. However, i t is submitted that, sociological philosophy to the contrary notwithstand- ing, the coincidence of an unhealthy background is not sufficient enough cause to handle these two categories of young people in the same court. It is

WINTER, 1964 - VOL. XV, NO. 4 15

simply not fair to the dependent, neglected, or abandoned child.

legalize the “Juvenile” Court

My next suggestion is that, having removed the dependent, neglected, or abandoned child into another court, the juvenile court which would then handle only delinquents conduct itself, insofar as its procedures are concerned, by the same standards as the criminal court (still remaining separate, of course, from the adult criminal court.) This new juvenile court, however, should be divorced from the guardianship and protective philosophy of the present court, while at the same time keeping its rehabilitative functions.

A very necessary par t of the procedures of this new juvenile court would be to afford the young people charged with crime the same constitutional rights afforded adults charged with crime.

While the law provides that an adjudication in juvenile court is not to be termed conviction of a crime, nevertheless, for all practical purposes this is a legal fiction presenting, as Justice Thomas White of the Supreme Court of California once said, “a challenge to credibility and doing violence to reason.”

One of the most persistent charges made against the juvenile court is that in this court young people are being treated as second class citizens. I find i t difficult in all honesty to deny this charge. Time magazine in a recent article on the juvenile courts, said, “All too often protectiveness has made them so unjudicial tha t they are accused of dispensing injustice.” Certainly it is a fact that in the present juvenile court the young person charged with a public offense is denied the right afforded to an adult charged with the same offense.

For example, since the child is not charged with a crime, he is not entitled to bail, pending the determination of his guilt or innocence, but is often “detained” pending this determination. Also, since he is not charged with a crime, he is not entitled to the presumption of innocence or to demand that the proof of the crime charged be beyond a reasonable doubt and to a moral certainty. And, again, since he is not charged with a crime, he is not entitled to a trial by jury. In many jurisdictions he is not entitled to be confronted by the witnesses against him and the question of the truth or falsity of the charges contained in the petition are often tried on the basis of a probation officer’s report. To me as a judge, a lawyer, and a citizen, this is patently unfair. In spite of a mountain of appelate deci- sions approving present practices under the parens

HON. ROBERT GARDNER

patyiac! philosophy, it would appear basic that whether an individual is 17 or 70, he should be entitled to exactly the same rights when his name, his reputation, and his liberty are a t stake as a result of the charge of a criminal offense. A denial of these rights under the guise of “protecting” the minor is no answer. Any person, young or old, charged with a criminal offense should have a right to a determination of this charge by time-tested and constitutional methods. This can be done only by taking the delinquent category from the present philosophy of the juvenile court and putting this category into another court operated on the same procedural basis as the adult criminal court.

To the cry that this will result in a young person sufiering a conviction of a crime, I can only say that the distinction between crime and delinquency has long since evaporated. As a matter of fact, in the current connotation of the two words, I would rather have my child stand convicted of a crime than be branded as a juvenile delinquent.

In this regard, when the jurisdiction of the juve-


nile court depends upon an allegation of commission of a crime, I can see no possible legal, philosophical, or moral ground for any judge considering a social history until after the fact-finding hearing. This, to me, smacks of reading a probation officer’s report in adult court before the accused has either pleaded guilty or been convicted. This practice, which we must admit does exist, certainly lends itself to the charge that the juvenile court is not a court.

I am aware that some juvenile courts fear the presence of counsel, not so much from the stand- point of desiring to deny the young persons his rights, as they fear that counsel will make the mat- ters unduly time consuming. In this regard our experience in California may be relevant. In 1961 our juvenile court law was amended to provide that the juvenile and his parents be advised at each and every stage of the proceeding as to their right to counsel and their right to the appointment of counsel in cases of indigency. Experience has shown that in spite of these constant admonitions, few at- torneys appear in juvenile court. In the first two years after the new law went into effect, I handled several thousand juvenile court cases ; weeks went by without the appearance of counsel. Nevertheless, the knowledge that juveniles were entitled to counsel was a big step forward in curtailing criticism.

It is submitted that the same result would ensue were bail permitted. At one time, when bail was a matter of discretion in the juvenile courts of this state, I established a bail schedule in Juvenile Hall. During the course of the year that this program was in existence, bail was used only three times. Nevertheless, the existence of a right to bail removed that criticism from my court.

So, also, would be the result of the right to a jury trial, It is submitted that the number of times parents and child would wish to have their case pre- sented to a jury would be extremely limited. Never- theless, the fact that one could say of the juvenile court that the young person who comes before that court charged with a crime has all of the constitutional rights of an adult charged with the same crime, would very effectively put an end to all criticism from Bench, Bar, and Public in this regard and it is submitted would not in the least hamper the efficiency of the juvenile court.

Focus on Individual Responsibility

My next suggestion is that, having established the juvenile court for the handling of delinquents as a court with full constitutional rights, the focus of this court should change from the present guard-

ianship philosophy to one of self-responsibility of the individual.

The philosophy of the present juvenile court is one of protection for the minor - protection from outside influences as well as protection from himself and, it is submitted, inevitably protection from self-responsibility. While the emphasis should of course remain on rehabilitation (rather than retribution), the focus should be on the responsibility of the individual. Eventually, the child grows into a man. Some day he is going to have to face responsibility. Why should this not s tar t while he is still a child?

In both courts, juvenile and criminal, the judge now attempts to use all of the modern tools aimed at reformation and rehabilitation, not necessarily for any humanitarian purpose, but simply because a successful program of rehabilitation is obviously the most effective way to protect society in the long run. Blind, unthinking retribution or punishment for the sake of venegeance has no part in the thinking of a judge of any court.

There should, however, be restored to the juvenile court the power to punish when the judge feels that reasonable punitive measures are called for as a part of a program of therapy. Strangely enough, even though the juvenile court philosophy has completely abandoned the punitive approach, most authorities agree that reasonable punishment does have value in the treatment and control of delinquency, be it adult or juvenile. Of course, for a n intelligent and effective use of punishment, i t must be used only as an integral part of a program of therapy and should never be harsh o r degrading.

The concept of punishment has a place in our culture and to ignore it is unrealistic. The behavi- orial sciences come to the same result, but with the use of another word-sanctions. In either case, be it punishment or sanction, the result is often the same-loss of liberty. To the individual who has lost his liberty, the distinction becomes fine indeed. In a good many years of handling several thousand cases in the juvenile court, I have experienced great difficulty in persuading the young person whose liberty is being taken fram him (for his own protection) that he is not being punished. It is submitted that approaching the situation from a stand- point of punishment would mean a more honest, un- derstandable approach to the juvenile than an eso- teric philosophical concept completely beyond his comprehension. While we talk about treatment in a non-punitive environment, the juvenile sent to a training school sees himself as confined and punished for something h e did wrong. Of course, the

WINTER, 1964 - VOL. XV, NO. 4 17

judge sitting in this juvenile court must have the right to transfer cases from this court to the Chil- dren’s Court when the facts indicate that the child, even though he has committed an offense, is basic- ally in need of the protection of the other court. However, this must be a one-way street. Juvenile Court to Children’s Court-yes. Children’s Court to Juvenile Court-no.

Alter Police and Probation Practices

Once the procedures outlined above are established, then my next suggestion is tha t certain changes be made in present practices existing in the handling of young people by police and probation agencies. This suggestion is that “informal” handling of young persons charged with crime by police officers and probation officers be terminated and in its place there be substituted a simple ar- raignment procedure in the court wherein the offender either by arrest or by citation, appears in court in all cases where he is advised of his rights, these rights are recognized and protected, and a determination made as to his guilt or innocence of the crime charged. To the objection that this would necessitate the hiring of a large number of juvenile court judges, attention is merely invited to the new juvenile traffic courts of this state and the present adult municipal courts wherein vast numbers of people are handled expeditiously by a small number of judges with a meticulous recognition at all times of their constitutional rights, yet with prompt determination of the merits of the cases. Obviously, most of the cases not now being referred to court are of a minor nature and a court appearance would not involve any prolonged hearing or any intensive, costly, or extensive probation investigation. The suggested procedure is one which affords the juvenile full protection of his rights in court proceedings with a judicial determination of the truth or falsity of the charge and a t the same time estab- lishes an orderly court disposition of his case. The “informal” handling of juveniles in this jurisdiction has grown to the extent that 50% of all young people who come to the attention of the law enforcement authorities are handled informally by the police agency. In those cases in which a referral is made to the probation department, here again roughly 50cjO are handled informally by the probation officer.

This informal handling of juveniles by police agencies and probation officers is objectionable in three respects :

1. There is never a judicial adjudication as t o the truth or falsity of the charge. Thus, the juve-

nile is left with the stigma of a criminal record in a police agency or a probation department for an offense of which he may or may not be guilty. If the juvenile is cited directly into court, a proper judicial adjudication can be made in each case. To the horrified cry that this will result in too many young people getting juvenile court records, I can only say that I would prefer that my child have a juvenile court record after proper adjudication, than a police department o r probation department record with no adjudication.

2. Having brought the juvenile into court, the court record and all police records are thereafter subject to expungement. The power and right to expunge the casual offense of the average irre- sponsible young person is extremely important. There exists in this state a law by which the person who has appeared in juvenile court may petition the court for a n order sealing all records relating to such person’s case including not only the court and probation records but all law enforcement agency records as well. Each of the agencies must report back to the court that the record‘has been expunged. The law further provides that “thereafter the proceedings in such case shall be deemed never to have occurred and the juvenile may thereafter so reply according to any inquiry about the event, the records of which have been ordered sealed.” In view of the fact that the court now receives a small per- centage of all juveniles handled, this means that the majority of young people being handled informally by police and probation agencies carry a record which is not subject to expungement.

3. The present policy of police and probation officers handling juveniles informally results in a n attitude on the part of the juvenile by the time he finally reaches the juvenile court by which he is completely indifferent to authority. Having been warned and counseled a half-dozen times by police and probation agencies, his respect for authority is completely gone by the time he finally arrives in court. Were he to be cited directly into court with its austere symbolism on his first contact with the law, it is submitted that some of the disrespect for authority might well be changed.

It is submitted that the above procedure by which each arrest of a juvenile by a police agency is made subject to judicial scrutiny might well cut down on the volume of underage arrests many of which are unnecessary and unjust. I t is common knowledge that some police agencies engage in rather widespread practices in which juveniles aria arrested (“picked up,” “handled,” “detained”-the


result is the same) for situations in which no adult would be touched.

Redefine Delinquency

My last suggestion is that each state and each judge might well review the types of cases which are being brought into juvenile court. Someone once referred to a great deal of the juvenile court case load as a “lot of garbage.” I have had the dis- tinct impression from time to time that as a juvenile court judge, I found myself acting as a glori- fied babysitter, a woefully inadequate substitute parent, an agency for advice to the lovelorn, a judicial truant officer, and a general catch-all for many problems which should be handled and would be handled by the average family were they not able to turn their responsibilities over to the juvenile court. And I think each of us has suffered the frustrating experience of trying to oversee the sexual activities of a large group of uncooperative young ladies who were “in danger of leading idle, lewd, dissolute or immoral lives” when they came before us and who were not much better when they left. Since each of the 50 states has a different definition of that which is dependency (that state at one time had 14

different categories) and each judge is entitled to exercise his own discretion as to the type of case he is going to handle in his court, I am unable to comment further on this general subject. I think, however, that many juvenile court judges would agree that throughout the years our jurisdiction has become much too broad. We have attempted to become all things to all men and in so doing, we have diluted our efficiency in doing the basic job for which we were created.

The above suggestions are not an attack upon the juvenile court. Rather, they are submitted with the thought that they may be of service to the whole juvenile court movement by challenging some of the ideas which have been accepted without question for the last 65 years. The patina of age does not necessarily prove the value of a philosophical o r a legal concept, and intelligent questioning is still considered the best vehicle our society has devel- oped to ascertain truth. Unhappily, there is an attitude on the part of a very considerable number of persons in the juvenile field that any questioning of the status quo is heresy. However, it is only through informed, intelligent controversy that a fair determination can be made.

CHILDREN’S BUREAU REQUESTS . . . In order to keep abreast of developments in juvenile courts the

Children’s Bureau requests that Rules of Court, Administrative Manuals, Annual Reports, and other similar data be forwarded to:

JAY OLSEN Technical Aid Branch

Division of Juvenile Delinquency Service

Children’s Bureau Washington, D. C. 20201

Documents

LET'S TAKE ANOTHER LOOK AT THE JUVENILE COURT