This Article argues that the continued homage to McKeiver in an era of punitive juvenile justice is the misguided result of judicial inattention to the distinction between punitive and rehabilitative dispositions. In Part II, I clarify this distinction and demonstrate why understanding it is essential to a sound analysis of whether jury determinations and public proceedings are constitutionally required in delinquency adjudications. I show that the concepts of rehabilitation and punishment are distinct and, for purposes of constitutional analysis, mutually exclusive. From this discussion I derive a conceptual framework, which I apply in Part IV to analyze several cases. These conceptual considerations are framed by a sketch of the movement within juvenile justice from a rehabilitative to a punitive model. In Part III, I examine the Supreme Court’s delinquency cases, paying particular attention to McKeiver. I then consider the Court’s public trial and jury trial case law and argue that proceedings must be open to the public when alleged offenders face punishment, and jury trials must be afforded when they face substantial punitive incarceration. I show that, contrary to McKeiver, requiring open jury determinations in delinquency adjudications will not detract from the goals of such proceedings but will actually effectuate them. I conclude Part III by arguing that alleged delinquents, unlike adult defendants in the criminal system, are constitutionally entitled to choose a jury or bench trial and an open or closed proceeding in which their identities are kept confidential. In Part IV, I examine a sample of lower court cases considering whether jury trials are required in the new punitive juvenile justice. I demonstrate that the courts, with very few exceptions, make three kinds of mistakes in assessing jury trial rights in juvenile cases. Some courts simply beg the constitutional question by assuming without analysis that a given disposition is nonpunitive. Others apply overly broad definitions of rehabilitation, thereby conflating the concept of punishment into that of rehabilitation. A third group makes the opposite mistake by applying the “impact theory,” an overly broad definition of punishment, which conflates the concept of rehabilitation and other coercive sanctions into that of punishment. After illustrating these mistakes with examples from the case law, I contrast the faulty decisions with a rare example of a soundly analyzed case as a recommended model for clarification of the muddled situation created by the lower courts. Finally, in Part V, I briefly address the argument of some leading commentators that the complete criminalization of juvenile courts— by the recognition of public trial and jury trial rights—makes the existence of a juvenile court system separate from the criminal justice system unnecessary and unwise. Rather than merging it into the criminal system, I argue to the contrary that the emergence of punitive juvenile justice with full procedural protections actually provides a new rationale for retaining a separate juvenile court system. I take no position on whether juvenile courts should punish delinquents, but focus only on the Sixth Amendment implications that follow when punishment occurs.
Martin R. Gardner,
Punitive Juvenile Justice and Public Trials by Jury: Sixth Amendment Applications in a Post-McKeiver World,
91 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol91/iss1/3