No. 2]
The Continuing Turbulence Surrounding the Parens Patriae
Concept in American Juvenile Courts (Part I)
Kechin Wang, Q.C. *
I. HISTORICAL BACKGROUND
………………………………………………………………….
220
II. DEVELOPMENT OF THE PARENS PATRIAE CONCEPT IN THE
UNITED STATES AND THE ESTABLISHMENT OF
JUVEN ILE COURTS ………………………………………………………………………………….
221
III. RELAXATION OF FORMAL SAFEGUARDS IN JUVENILE COURTS 224
IV. THE PENDULUM SWINGS THE OTHER WAY ……………….
232
V. EVOLUTION OF THE LAW UNDER KENT, GAULT AND WINSHIP 236
V I. T R E N D S ………………………………………………………………………………………………………
243
*M.A., B.C.L. (Oxon.), Ph.D., of the Middle Temple, Barrister-at-Law.
t This is the first part of a two part article. The second part will appear
in the next issue.
McGILL LAW JOURNAL
[Vol. 18
I. Historical Background
Under the common law, no distinction was made between young
people and adults so far as criminal offences were concerned.
The fundamental aim in criminal jurisprudence was not reform-
ation but punishment, punishment as retribution for the wrong,
punishment as a warning and deterrent to others. In 1801 Andrew
Brenning, aged 13, was publicly hanged for stealing a spoon.
In 1808 a 7-year-old girl was hanged in Lynn. In 1831 a 9-year-old
boy was given the death penalty for setting fire to a house. In
1833 a boy of the same age was hanged for stealing a printer’s
color valued at two pence.’
The protection of the offending child is not, however, entirely
the creation of statute. For over two centuries the English Chancery
courts have exercised jurisdiction in his protection. Nor is the
jurisdiction of these courts limited to cases where the child had
property. Thus North, J. in Re McGrath 2 stated:
But then it is said that I have no jurisdiction in this case, and for this
reason, because the infants are not wards of Court, and have no property
–
that the Court cannot interfere under such circumstances. I think
that proposition is wholly unsupported by either principle or authority.8
‘Koestler, Reflections on Hanging, (London, 1956); Koestler and Rolph,
Hanged by the Neck, (1961). Even today, in some countries, juvenile offenders
are treated no differently than adults. According to the Toronto Globe and
Mail (March 8, 1972), Timothy Davey, 14, was sentenced the previous week
to 6 years and 3 months’ imprisonment in an adult jail in Istanbul, Turkey
for drug offences.
2 [1892] 2 Ch. 496.
3 Ibid., at pp. 511-512. See also In re Spence, 2 Ph 247, at p. 252, where Lord
Chancellor Cottenham said:
I have no doubt about the jurisdiction. The cases in which this Court
interferes on behalf of infants are not confined to those in which
there is property… The Court interferes for the protection of infants,
qua infants, by virtue of the prerogative which belongs to the Crown
as parens patriae, and the exercise of which is delegated to the Great Seal.
The case of In re Flynn, [1848] 2 DeG & Sm 457, is another instance where
the court exercised its jurisdiction to take children who had no property
out of the custody of their father, upon the ground that it was not for
their welfare that they should remain with him. Again, in Brown v. Collins,
25 Ch. D 56, at p. 60, Mr. Justice Key said:
In one sense all British subjects who are infants are wards of court,
because they are subject to that sort of parental jurisdiction which is
entrusted to the court in this country, and which has been administered
continually by the courts of the Chancery Division… The jurisdiction
exists from the fact that the infant is a British subject, and the Chancery
No. 2]
PARENS PATRIAE CONCEPT
Most of the cases in this early period of English law refer to
protection of children from their parents where circumstances in
the home are such that the State, as parens patriae, take over
the duties and obligations of the natural parents. In the narrow
sense, this would cover cases of neglected children or children
beyond the control of their parents. Delinquent children, if limited
to those who have committed acts which would be crimes in the
adult sense, would not be included in this category, although it
can be said that by such delinquency they have proved themselves
to be beyond the control of their parents and must now be looked
after by the State.
II. Development of the Parens Patriae Concept in the United
States and the Establishment of Juvenile Courts
In the United States, the philosophy of special protection for
juveniles was a gradual process. In 1869 a law was passed in
Massachusetts providing for a “visiting agent” to sit in at hearings
and advise judges regarding the disposition of youthful offenders
under sixteen.4 Houses of Refuge were established in New York
City (1825) and in Pennsylvania (1826)
to receive children who
were incorrigible or were lawbreakers and to provide them with
care, discipline and training. Although the record of these insti-
tutions was one of extreme harshness and ill treatment, the sepa-
ration from adult criminals was a basic improvement.5
One of the earlier cases dealing with such houses of refuge ap-
plied the doctrine of parens patriae to delinquent children. In
ex parte Crouse 6 it was held that:
The House of Refuge is not a prison, but a school, where reformation,
and not punishment, is the end… To this end may not the natural parents,
when unequal to the task, or unworthy of it, be superceded by the parens
Division has always exercised that parental jurisdiction over British
subjects who are infants.
For other cases and an historical discussion of the Courts of Chancery,
see Mack, The Juvenile Court, (1909), 23 Harv. L. Rev. 104; Nicholas, History,
Philosophy and Procedures of Juvenile Courts, (1961), 1 Journal of Family
Law 151.
4 Winters, Modern Court Services for Youths and Juveniles, (1949), 33
Marq. L. Rev. 99.
5 Nicholas, op. cit., n. 3; see also note: Misapplication of the Parens Patriae
Power in Delinquency Proceedings, (1954), 29 Indiana L. Rev. 475; Wilkin,
The Responsibility of Parenthood, (1910), 36 Annals 64. See also: Fox, Juvenile
Justice Reform: An Historical Perspective, (1970), 22 Stan. L. Rev. 1187.
64 Wharton 9 (Penn. Sup. Ct., 1839).
McGILL LAW JOURNAL
[Vol. 18
patriae, or common guardian of the community? It is to be remembered
that the public has a paramount interest in the virtue and knowledge
of its members, and that of strict right, the business of education
belongs to it. That parents are ordinarily entrusted with it is because
it can seldom be put into better hands; but where they are incompetent
or corrupt, what is there to prevent the public from withdrawing their
facilities, held, as they obviously are, at its sufferance? The right of
parental control is a natural, but not an inalienable one.7
The thinking public and the courts began to look at young
people in this way –
is the propensity for wrongdoing the fault
of the children, or is it in reality the fault of the parent for not
guiding and controlling the child (barring a small minority of
children who simply cannot be controlled)? If the child is thus
neglected by the parent, is it not the duty of the State to take
charge, not to punish the child, but to restore him to the ways
of good citizenship, to reform, to guide and to develop him? Within
this concept, there is no distinction between delinquent children
who have committed crimes and neglected or dependent children.
It was through this notion of parens patriae that the idea of
a sheltering juvenile court for all young people who need help
7 In Prescott v. State, 19 O.S. 184 (1870), the Supreme Court of Ohio stated:
The proceeding is purely statutory; and the commitment in cases like
the present is not designed as a punishment for crime, but to place
minors of the description and for the instances specified in the statutes
under the guardianship of the public authorities named for proper
care and discipline, until they are reformed or arrive at the age of
majority. The institution to which they are committed (House of Refuge
or reform farm in Ohio) is a school, not a prison; nor is the character
of their detention affected by the fact that it is also a place where
juvenile convicts may be sent who would otherwise be condemned to
confinement in the common jail or the penitentiary.
In another Ohio case, House of Refuge v. Ryan, 37 O.S. 197 (1881),
the
defendant filed a petition of Habeas Corpus alleging that he was the father
of 3 children, all under six years of age; that their mother had died and
that they were taken away from his home without notice and committed
by a justice of the peace to the House of Refuge. His plea failed. The Ohio
Supreme Court stated:
The commitment is not designed as a punishment for crime but to
place destitute, neglected and homeless children and those who are in
danger of growing up idle and vicious members of society under the
guardianship of the public authorities for their proper care and to
prevent crime and pauperism. As to such infants it
is a home and
a school, not a prison. The authority of the State as parens patriae
to assume the guardianship and education of neglected, homeless children,
as well as neglected orphans, is unquestioned.
No. 2]
PARENS PATRIAE CONCEPT
was developed at the turn of the century.8 Legislation for it was
designed for humanitarian purposes. The court was intended to
be civil, not criminal. It was to be helpful and rehabilitative to
the offender, not designed to be punitive or aimed at retribution.
The intent was to treat young people guilty of criminal acts in
non-criminal ways. The primary objective was to afford additional
protection to the child.”
The establishment of the juvenile court was hailed by Dean
Roscoe Pound of the Harvard Law School as “one of the most
significant advances in the administration of justice since the Magna
Carta”.’ 0
Another enthusiastic supporter of the juvenile court was Judge
Ben Lindsay, well-known juvenile court judge in Colorado. He
said that its aim:
… was to bring into the life of the child all of those aids and agencies
that modem science and education have provided through the experts
in human conduct and behaviour; in a word, to specialize in the causes
of so-called bad things as doctors would in the cause of disease.”
Judge Lindsay wrote further:
He, (the child), is taught, literally, to overcome evil with good. He is
taught his duty to society, the meaning of law – why ordnances are
passed, and by a system of education he is taught to know how to help
himself, and to make himself honest and industrious… It will thus
be seen that our institution (juvenile court) is a school-court. 12
8The first juvenile court in the United States was established in Cook
Country, Illinois and officially opened in Chicago July 1, 1899.
9See Comment, Dependent-Neglect Proceedings, A Case for Procedural
Due Process, (1970), 9 Duquesne L. Rev. 651, at p. 654, where it is stated
that the juvenile courts “are purely statutory courts without foundation in
common law, and are, therefore, strictly limited within the confines of
the creating statute”. This same view was expressed in Prescott v. State,
op. cit., n. 7, where the Supreme Court of Ohio, referring to the Houses
of Refuge, stated “The proceeding is purely statutory…” For a contrary
view, see Commonwealth v. Fisher, 62 A. 198 (Penn. Sup. Ct., 1905), where
the Supreme Court of Pennsylvania stated that no new court was created
by the Pennsylvania Statute establishing Houses of Refuge. It was simply
an Act to define the powers of an already existing and ancient court, the
Court of Quarter Sessions.
10Quoted in National Probation & Parole Association, Guides for Juvenile
Court Judges 127 (1957).
” Lindsay-Borough, The Dangerous Life, (1931), at p. 103.
12 Lindsay, The Juvenile Laws of Colorado, (1906), 18 Green Bay 126, at
p. 127. In a chapter headed The Human Artist Succeeded the Executioner
McGILL LAW JOURNAL
[Vol. 18
I. Relaxation of Formal Safeguards in Juvenile Courts
The theory that in juvenile cases the court acts as parens patriae
has led juvenile courts to relax or altogether omit many formal
safeguards found in adult criminal courts. The humanitarian purpose
of such courts is given as justification.
In Commonwealth v. Fisher13 Fisher was committed to a
House of Refuge. His appeal to the Supreme Court of Pennsylvania
failed. The constitutionality of the Pennsylvania Juvenile Act was
challenged on the grounds that,
1) the juvenile was not taken into court under due process of law,
2) he was denied trial by jury and,
3) the Act provides different punishment for the same offence
by a classification of offenders according to age.
Brown, J. stated:
… it is important that the powers of the court, in respect to the care,
treatment and control of dependent, neglected, delinquent and incorrigible
children, should be clearly distinguished from those exercised by it in
the administration of criminal law.., it (the Act) is not for the punish-
ment of offenders but for the salvation of children, and points out
the way by which the state undertakes to save, not particular children
of a special class, but all children under a certain age, whose salvation
may become the duty of the state, in the absence of proper parental
care or disregard of it by wayward children… Its protecting arm is
for all who have not gained that age (16) and who may need it for
protection.14
In the above passage, Brown, J. made it clear that all children
are covered by the Pennsylvania Juvenile Act, be they dependent,
neglected, incorrigible or delinquant children who have committed
crimes. He said:
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 guardians be unable or unwilling to do so,
by bringing it into one of the courts of the state without any process
(Lindsay-Borough, op. cit., n. 11, at p. 140). Judge Lindsay was ecstatic in
praise of the Juvenile Court.
The point I am making is the basic importance of the natural aptitude
for this human artistry, through the capacity for the same love and joy
in playing upon a human instrument that another type of artist finds
in playing upon his musical instrument. I sometimes think that real human
artists called to institutions such as ours (mistakenly called a ‘court’) are
born, not made.
13 62 A. 198 (Penn. Sup. Ct., 1905).
14 Ibid., at p. 199.
No. 2]
PARENS PATRIAE CONCEPT
at all, for the purpose of subjecting it to the state’s guardianship and
protection. The natural parent needs no process to temporarily deprive
it in his own home to save it and
his child of its liberty by ‘confining’
to shield it from the consequences of persistence in a career of way-
wardness. 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. 15
The juvenile court is not a criminal court. Brown, J. held that:
The design is not punishment, or the restraint imprisonment, any more
than is the wholesome restraint which a parent exercises over his child…
Every statute which is designed to give protection, care and training to
children, as a needed substitute for parental authority and performance
of parental duty, is but a recognition of the duty of the state as the
legitimate guardian and protector of children where other guardianship
fails. No constitutional right is violated…16
In Mill v. Brown,lT a minor of 13 was charged with petit larceny
for taking a box of cigars, found guilty and committed to the Utah
industrial school until he reached 21. The minor was successful on
appeal and was returned to his parents.
Finch, J. delivered the unanimous opinion of the court. He
stated that :
Such laws (against juvenile offenders) are most salutory and are in no
sense criminal and not intended as a punishment, but are calculated to
save the child from becoming a criminal. The whole and only object
of such laws is to provide the child with an environment such as will
save him to the state and society as a useful and law-abiding citizen,
15 Ibid., at p. 200. See also the case of Rule v. Geddes, 23 App. D.C. (1904)
where the court upheld the right of an official to commit a 15-year-old
girl to a reform school solely upon her mother’s application. The restraint
was considered an opportunity for “moral and physical well-being”. It was
stated, at p. 50:
The child herself, having no right to control her own action or to select
her own course of life, had no legal right to be heard in these proceedings.
Hence the law which does not require her to be brought in person
before the committing officer or extend her the privilege of a hearing
on her own behalf cannot be said to deprive her of the benefit of due
process of law.
10 Commonwealth v. Fisher, op. cit., n. 9, at p. 201. Eight years later, in
Black v. Graham et al. 86 A. 266 (Penn. Sup. Ct., 1913), Brown, I., at p. 267,
changed his mind about the nature of the juvenile court.
On the other hand, the relation established by the order of the juvenile
court and the contract made thereunder is really penal in its nature…
such of these children as are ‘incorrigible’ are quasi-criminals. They have
been apprehended for wrongs committed by them. All of these children
are, in effect, prisoners.
17 88 P. 609 (Utah Sup. Ct., 1907).
McGILL LAW JOURNAL
[Vol. 18
and to give him the educational requirements necessary to attain that
end… As we have already pointed out, the proceedings of the juvenile
court do not fall, nor are they intended to come within what is termed
criminal procedure, nor are the acts therein mentioned, as applied to
children, crimes.’8
The jurisdiction of the juvenile court, however, is limited to
cases where the parent has been proven to have failed in his duty
to supervise or control the child. This duty “to educate and save
the child from a criminal career” rests upon the parent first.
Finch, J. held that:
As the duty is imposed by the moral as well as the laws of society upon
the father first, so it must likewise logically follow that he must be
given the first right to discharge that duty… Before the state can be
substituted to the right of the parent, it must affirmatively be made
to appear that the parent has forfeited his natural and legal right to
the custody and control of the child by reason of his failure, inability,
neglect or incompetence to discharge the duty and thus to enjoy the
right.. 19
The court emphasized that following a complaint, the quali-
fications of the parent must be carefully considered before his
natural right to custody and control can be surrended; otherwise
“the court might as well enter upon a judgment without any com-
plaint or investigation whatever”. 20
This line of reasoning appears sound enough but cases dealing
with children charged with criminal offences (“delinquency” in the
narrow sense) often do not show any serious inquiry by the court,
if in fact any inquiry is made at all, into the competence and
performance record of parents.2′
sIbid., at p. 613. At p. 612, Frick, J. cited 16 cases where due process
requirements were discussed but held inapplicable in juvenile courts.
19 Ibid., at p. 613.
2o Ibid., at p. 614.
21 See Note, Misapplication of the Parens Patriae power in Delinquency
Proceedings, op. cit., n. 5. It is argued that while jurisdiction over dependent
and neglected children has strong historical basis under the concept of
patens patriae, extension of this authority to delinquency where the child
has committed a crime is a result of legislative policy rather than judicial
precedent. If the concept is to be thus widened, there should be some proof
of parental neglect or inability for discipline. Yet in delinquency proceedings
it
insufficient parental
control or supervision is either presumed or overlooked. It
is suggested
as a remedy that no child, even if shown to be delinquent, should be com-
mitted to state institutions unless the inability of parents for discipline
is proved. Where there is no lack of care or supervision, and the parents
are not at fault, but delinquency occurs due to emotional instability or other
psychological or psychiatric deficiencies, the courts should not interfere and
is necessary only to prove the child delinquent,
No. 2]
PARENS PATRIAE CONCEPT
At this early stage in juvenile court history, there was strong
support for the parens patriae concept in its widest sense. Trials
were not criminal in nature and procedures were to be flexible.
In In re Lundy 22 the offence committed by a juvenile (female)
was that of singing for wages in a restaurant where wine and beer
were sold. This was not a “crime” as such, but was a delinquent
act under the juvenile court law of Washington.
In the Washington Supreme Court, Ellis, J., delivering an unani-
mous opinion, stated:
The Act, in its application to the delinquent, is not punitive in its nature
or purpose. The policy under this law is protection, not punishment. Its
purpose is not to restrict criminals, to the end that society may be
protected and the criminal perchance reformed; it is to prevent the
making of criminals. Its operation is intended to check the criminal
tendency in its inception, and protect the unformed character in the facile
period from improper environment and influences. In short, its motive
is to give to the weak and immature a fair fighting chance for the
development of the elements of honesty, sobriety and virtue essential
to good citizenship.P
Due process procedures must be followed, but should be liberally
construed. Ellis, J. continued:
While no person, whether minor or adult, should ever be restrained of
liberty without due process, and in that respect the statute must be
construed with all the strictness of a criminal law.., in other respects
it should be liberally construed, to the end that its manifest beneficent
purpose may be effectuated to the fullest extent compatible with its
terms.24
A comprhensive review of all prior cases dealing with juvenile
offences is found in Cinque v. Boyd 25 before the Supreme Court of
Errors of Connecticut. A minor, 14-year-old, was charged with
aiding and abetting other boys of taking from a drunken person
the sum of two dollars and fifty cents. He was found delinquent
and committed to the Connecticut School for Boys.
commit the child to a state institution. “Parents should not be deprived of
the custody of their children unless it is conclusively proved in the juvenile
court that by reason of their incompetency the best interest of the child
require state intervention.” (at p. 484).
This writer would suggest, however, that it is precisely these cases where
the child need special care that the juvenile court, with all its facilities,
should participate in the effective treatment process. The question of a
parent’s incompetence should not be the determining factor.
22 143 P. 885 (Washington Sup. Ct., 1914).
23 Ibid., at p. 886.
24M.
25 121 A. 678 (1923).
McGILL LAW JOURNAL
[Vol. 18
On appeal, it was contended that the Juvenile Court Act was
unconstitutional for the following reasons: denial of right to bail,
no confrontation of witnesses, denial of trial by jury and definition
of “delinquent” too broad and inclusive.
These arguments were rejected. Keeler, J. quoted with approval
the concept of the juvenile court as non-criminal as characterized
by Flexner and Oppenheimer in a monogram prepared for the
Children’s Bureau of the U.S. Department of Labor. 2
Keeler, J. then went on to say:
… the Act was intended to constitute a court which should conduct a
civil inquiry, to determine whether, in a greater or less degree some
child should be taken under the direct care of the state and its officials
to safeguard and foster his or her adolescent life, and not to conduct a
criminal prosecution, nor to attach to the enforcement of the provisions
of the Act any sanction of a criminal nature… Of course an act does not
become one solely of a civil nature simply because it is called so, but
its true nature is to be determined by the scope and nature of the
provisions. If such courts are not of a criminal nature, then they are
not unconstitutional because of the nature of their procedure depriving
persons brought before them of certain constitutional guarantees
in
favor of persons accused of crime.27
After citing a great number of cases, Keeler, J. concluded that
“the fundamental principle of decision running through them all
is that the inquiries conducted by juvenile courts are not criminal
trials”.28
Pee v. United States, 2
9 a decision of the Court of Appeals,
District of Columbia Circuit, is a strong case for the proposition
that a juvenile court is not a criminal court. This was a charge
20The basic conceptions which distinguish juvenile courts from other
courts can be briefly summarized. Children are to be dealt with separately
from adults. Their cases are to be heard at a different time, and preferably
in a different place; they are to be detained in separate buildings, and,
if institutional guidance is necessary, they are to be committed to institutions
for children. Through probation officers the court can keep in constant
touch with the children who have appeared before it. Taking children from
their parents is, when possible, to be avoided; on the other hand parental
obligations are to be enforced. The procedure of the court must be as
informal as possible. Its purpose is not to punish but to save. It is to deal
with children not as criminals but as persons in whose guidance and welfare
the state is peculiarly interested. Save in the case of adults its jurisdiction
is equitable not criminal, in nature. (Reprinted in American Law Review,
p. 65.)
2 TCinque v. Boyd, op. cit., n. 25, at p. 683.
281d.
29274 F. 2d 556 (Dist. of Columbia, C.A. 1959).
No. 2]
PARENS PATRIAE CONCEPT
of robbery and assault with intent to commit rape laid against 3
juveniles and 1 other. Prettyman, Chief Judge, stated:
In
the event a child commits an offence against the law, the state
assumes a position as parens patriae and cares for the child. Such a one
is not accused of a crime, not tried for a crime, not convicted of a crime,
not deemed to be a criminal, not punished as a criminal and no public
record is made of his alleged offence. In effect he is exempt from the
criminal law… The foregoing proceedings are not criminal cases. The
constitutional safeguards vouchsafed a juvenile in such proceedings are
determined from the requirements of due process and fair treatment,
and not by direct application of the clauses of the Constitution which
in terms apply to criminal cases. 8 0
As recently as 1964, the Supreme Court of Ohio 8 held that the
proceedings in the juvenile courts were civil and not criminal.
In that case, a 17-year-old boy was found guilty of an act of
malicious entry which would have been a felony if committed by
an adult. The evidence showed he had a record of delinquency
and derelictions. He was sent, not to the Boys Industrial School,
but to the Ohio State Reformatory.
In the unanimous judgment of the court, delivered by Griffiths, J.,
it was not disputed that the juvenile court did not provide the
accused with counsel, did not advise him of his constitutional rights
prior to the hearing and did not inform him that he could have
counsel to represent him if he so wished.
Proceedings in a juvenile court are civil in nature and not criminal. The
appellant was not prosecuted for a criminal offence. The appellant was
never indicted, never convicted and never sentenced… The hearing in
the juvenile court is upon the status of a minor child, in the nature
of a guardianship, and this is so even though the minor child is over
16 years of age and commits an act which, if committed by an adult,
would constitute a felony. The Legislature by this Act clearly is not
inclined to brand the appellant with a mark of infamy or to set a mark
of disgrace upon him. It is for the purpose of correction and rehabilitation
and not for punishment 3 2
It can be seen from the cases above cited that after the establish-
ment of the juvenile courts in the United States most of the decisions
upheld the principle of parens patriae, considered the proceedings
80 Ibid., at pp. 558-59. In Appendix A of the judgment a list of authorities
is given supporting the proposition that proceedings in juvenile courts are
not criminal cases and in Appendix B a list of authorities is given supporting
the proposition that the provisions of the Constitution which specifically apply
to criminal cases are not applicable to juvenile court proceedings by reason
of such specific provisions.
31 Cope v. Campbell, 196 N.E. 2d 457 (Ohio Sup. Ct., 1964).
32 Ibid., at pp. 458-59.
McGILL LAW JOURNAL
[Vol. 18
in such courts civil rather than criminal, did not insist on due
process and emphasized the informality and flexibility of court
proceedings with a view towards rehabilitation and care of the
juvenile rather than punishment and retribution. 33 Only a few
courts and commentators questioned the withholding of consti-
tutional rights through denial of due process from youthful of-
fenders.3 4
33 Professor Ketcham has succinctly summarized juvenile court philosophy
under five premises:
1) that the consequences of a finding of delinquency will, in fact, be non-
criminal and that the stigma of a criminal record will not obtain.
2) that the hearing itself will be promptly held, easily understood, fair and
compatible with, if not a part of the treatment process.
3) that family ties will be strengthened and the child removed from his home
only when his welfare or the interests of the community demand such
action.
4) that the child’s treatment subsequent to a finding of delinquency will
approximate as closely as possible that which he should have received from
his parents.
5) that the deleterious effects of imprisonment upon habits, attitudes and
aspirations will be minimized and by therapeutically rather than punitively
oriented restrictions. See: Ketcham, The Unfulfilled Promise of the Juvenile
Court, (1961), 7 Crime and Delinquency 97, at p. 101.
34 In People v. Fitzgerald, 155 N.E. 584 (N.Y.C.A., 1927), at p. 587, Crane, J.
in the New York Court of Appeals stated:
Where, therefore, a child is arrested and charged with being a delinquent
child because it has committed an offense which would be a crime in
an adult, that offense must be proved, and proved by competent evi-
dence… In the interests of the child such a proceeding is not called a
criminal trial or a criminal proceeding; it is called a hearing on a charge
of delinquency, but the change is in name only, for the act requires
competent evidence, and adjudication, and permits a commitment to a
state institution or a fine following an adjudication of guilt. The pro-
ceeding, at least, is one of a criminal nature… The evidence taken in
this case was not competent or sufficient to convict an adult: therefore
it was insufficient to convict this boy.
In the same year, a commentator expressed the same thought:
It seems that despite the attempts of the Statutes to socialize the trial
of an infant for an act of delinquency which if committed by an adult
would be a crime, and the attempt to make such a trial civil by calling
it civil, the trial, as a practical matter, still retains the flavor of a criminal
proceeding insofar as the child must be formally brought into court,
charged with a specific offense, and placed under restraint pending the
hearing, which restraint may be continued upon conviction… It seems
then, as a practical matter, that the juvenile court is really quasi-
criminal, and as such, the Bill of Rights is a factor to be considered
No. 2]
PARENS PATRIAE CONCEPT
The benevolent nature of the juvenile court and the concept
of parens patriae did not always produce shorter terms of con-
finement.35 In a recent case,36 the Pennsylvania Supreme Court
held that a juvenile may be sentenced to a longer term than that
of an adult when convicted of the same offence provided the fol-
lowing conditions are met:
(i) notification at the outset of all factors upon which the state
proposes to base its adjudication,
in the attempt to make the work of the juvenile court more effective by
giving it greater administrative power.
Note, Rights of Juveniles to Constitutional Guarantees in Delinquency Pro-
ceedings, (1927), 27 Colum. L. Rev., at pp. 970-72.
35 In 1911 a North Carolina court sent a juvenile to detention for six years
on a charge of vagrancy which could hold an adult no more than 30 days.
Ex parte Watson 72 S.E. 1049 (N. Carolina Sup. Ct., 1911). In South Carolina
a sentence with a potential of holding two minors 8 and 10 years old to their
respective majorities was upheld on appeal when the same offense (petit
larceny) would impose a maximum of 10 days for adults. State v. Cagle,
96 S.E. 291 (S. Carolina Sup. Ct., 1918). In California, where the maximum
sentence (petit larceny) for adults was 6 months in jail, a boy under 18 was
put away until he became 21. Ex parte Nichols 43 P. 9 (California Sup. Ct.,
1896). In Pennsylvania, where the maximum sentence for this offence was
2 years in jail, a child was deprived of his liberty for 7 years until he
reached his majority. (Commonwealth v. Fisher, op. cit., n. 9). In
In re
Holmes a minor was removed from his family because he had driven a
car without a licence. (109 A. 2d 523 (Penn, Sup. Ct., 1954). In State v. Butcher
et al., 279 P. 497 (Utah Sup. Ct., 1929) a boy was sent to the reformatory
because he had accidentally discharged a gun. In People v. Fowler, 148 N.Y.
Supp. 741 (1914) reversed on other grounds (152 N.Y. Supp. 261 (1915)) a girl
was sent away because she had been raped and later seen “painted and
powdered up”. In another case reported by Deane, The Rights of Juvenile
Delinquents: An Appraisal of Juvenile Court Procedures, (1957), 47 Journal of
Crim L.C. & P.S. 561, at p. 567, a juvenile was placed in a detention home
and later sent to a reformatory because he was the innocent victim of a
homosexual. In In re Singer, 285 P. 2d 955 (Cal. Dist. C.A., 1955) an 8-year-old
was removed from his family and held in detention so that he would be a
handy witness for the police in a criminal case. In In re Gault, 387 U.S. 1
(1966), if the juvenile had been an adult the maximum punishment would
have been a fine of 50 dollars or imprisonment for not more than 2 months.
Instead, Gerald Gault was committed to custody for 6 years.
36 In re Wilson, 264 A. 2d 614 (Penn. Sup. Ct., 1970). Here Wilson, a juvenile,
was involved in a racial street fight. No one was seriously injured and Wilson’s
participation consisted in throwing a few punches. He was sent to the State
Correctional Institution. Since he was 16, the maximum detention period was
5 years, until he reached 21. If he had been tried as an adult for the
same offence of assault and battery, the maximum sentence would have been
4 years and he would have probably been sent to the same institution.
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(ii) facts must be clearly found and supported, and
(iii) during the longer commitment the juvenile will receive ap-
propriate rehabilitative care.
There is no doubt that the juvenile court ought to maintain
some balance between the child’s act and the treatment imposed.
The law for juvenile courts, like other branches of jurisprudence,
should try to reconcile the individual needs of the child with the
goal of equality. Thus Dean Pound, speaking about the law in
general, stated:
It was long assumed that the whole task of the law was to be done
by means of rules or else that it was to be done by discretion. Reaction
from a regime of substantially unchecked discretion led to return to
mechanical application of rules or logical application of authoritative
starting points for reasoning. Attempts have been made to define law
wholly in terms of the imperative element or wholly in terms of the
traditional element. Very generally in the nineteenth century jurists sought
to eliminate discretion from the idea of law. There are some today who
would eliminate rule. Here as in the definition of justice we have to
take account of ideas, either of which carried to its logical extreme
negates the other, which nevertheless are equally necessary for achieve-
ment of our practical task and must be kept in balance37
IV. The Pendulum Swings the Other Way
Some fifty years after the turn of the century, the courts began
to move away from the parens patriae concept in all its implications
(including the flexibility of juvenile court procedures). Most of
the cases, however, dealt with charges against juveniles which, if
committed by adults, would be crimes and prosecuted in the
criminal courts. Strict application of due process procedures here
should not mean automatic application to all situations, which
woud include truancy from school, runaways, children “beyond the
control of their parents”, neglected children, incorrigibles.
In Haley v. Ohio,38 a 15-year-old boy was arrested at his home
on a charge of murder, taken to police headquarters and questioned
for five hours, without counsel, until he signed a confession typed
by police. He was then put in jail and held incommunicado for
three days. The lawyer, retained by the child’s mother, tried to
see him twice, but was refused. The boy’s mother was not allowed
to see him until five days later.
On appeal to the U.S. Supreme Court, the signed confession
was disallowed and the judgment of the lower court reversed.
37 Pound, Jurisprudence, (Part 3, The Nature of Law, St. Paul, 1959).
38 332 U.S. 596 (Cert. to Ohio Sup. Ct., 1948).
No. 2]
PARENS PATRIAE CONCEPT
The methods used in obtaining the confession cannot be squared
with due process of law requirements.
Justice Douglas delivered the majority opinion. He stated:
Neither man nor child can be allowed to stand condemned by methods
which flout constitutional requirements of due process of law.
But we are told that this boy was advised of his constitutional rights
before he signed the confession and that, knowing them, he nevertheless
confessed. That assumed, however, that a boy of fifteen, without aid of
counsel, would have a full appreciation of that advice and that on the
facts of this record he had a freedom of choice. We cannot indulge those
assumptions. Moreover, we cannot give weight to recitals which merely
formalize constitutional requirements. Formulas of respect for consti-
tutional safeguards cannot prevail over the facts of life which contradict
them. They may not become a cloak for inquisitorial practices and make
an empty form of the due process of law for which free men fought
and died to obtain.3 9
In In re Contreras,40 the Superior Court of Los Angeles County,
sitting in separate session as a juvenile court, convicted a juvenile
for assault and committed him to the Youth Authority of California.
On appeal, the conviction was set aside on grounds that the juvenile
was not represented by counsel and that there was insufficient
legal evidence to establish even a reasonable or probable cause of
guilt. It was held that where a juvenile is charged with a felony,
due process procedures must be followed.
White, J., the presiding judge of the District Court of Appeal,
said:
While the juvenile court law provides that adjudication of a minor to be
a ward of the court shall not be deemed to be a conviction of crime,
nevertheless, for all practical purposes, this is a legal fiction, presenting
a challenge to credulity and doing violence to reason.
It is common knowledge that such an adjudication when based upon
a charge of committing an act that amounts to a felony, is a blight upon
the character of and is a serious impediment to the future of such
minor… True, the design of the Juvenile Court Act is intended to be
salutary, and every effort should be made to further its legitimate
purpose, but never should it be made an instrument for the denial to
a minor of a constitutional right or of a guarantee afforded by law
to an adult. Regardless of the provisions of section 736 of the Welfare
and Institutions Code 4 1 the fact remains that the minor herein was
30 Ibid., at p. 601. (per Frankfurter, 1.).
40 241 P. 2d 631 (Calif. Dist. CA., 1952).
41 Section 736 of the Code of California provided that “An order adjudging
a person to be a ward of the juvenile court shall not be deemed to be a
conviction of crime”.
McGILL LAW JOURNAL
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taken from the custody of his parents, deprived of his liberty and ordered
confined in a state institution.. 42
White, J. concludes:
Even though, as held in some cases, the quantum of proof necessary to
sustain an order declaring a minor a ward of the juvenile court is not
the same as in a criminal proceeding affecting an adult.., it cannot be
seriously contended that the constitutional guarantee of due process of
law does not extend to minors as well as to adults43
Although these words are couched in general terms, the decision
itself was limited to cases where the offence, if committed by an
adult, would have been a felony and therefore a crime. No reference
was made anywhere in the judgment covering other juvenile offences
which were not “crimes” in the narrow sense.
In re Holmes 44 was a case where the Supreme Court of Penn-
sylvania returned to the concept of parens patriae in its widest
sense. The case dealt with a juvenile with a long record of highway
robbery, burglary, truancy from school, assault and battery, and
armed robbery of a church. His conviction for the last charge was
appealed by counsel on the grounds that the juvenile was improp-
erly compelled to answer a question which was self-incriminatory,
that the court received hearsay evidence, that counsel was denied
the right to inspect the court records, including offences, that
notice of hearing was not given to the parents and that the juvenile
should not be committed to the Pennsylvania Industrial School
as that institution is not restricted to delinquent juveniles, but
may include persons convicted of crime in a criminal court (up
to 21 years of age).
Horace Sterne, Chief Justice, grouped all types of offences
together so far as juveniles were concerned and applied the same
criteria of “treatment, reformation and rehabilitation”. He stated
that:
Appellant’s able counsel have urged upon us as upon the Superior Court,
many claims of illegality and deprivation of constitutional rights in connec-
tion with the proceedings before the Municipal Court. Such claims, how-
ever entirely overlook, in our opinion, the basic concept of a Juvenile Court.
The proceedings in such a court are not in the nature of a criminal
trial but constitute merely a civil inquiry or action looking to the
treatment, reformation and rehabilitation of the minor child. Their
purpose is not penal but protective, –
aimed to check juvenile delinquency
and to throw around a child, just starting, perhaps, on an evil course
and deprived of proper parental care, the strong arm of the State acting
42 241 P. 2d, at p. 633 (per White, J.).
43 Ibid., at p. 634.
14 109 A. 2d 523 (Penn. Sup. Ct., 1954).
No. 2]
PARENS PATRIAE CONCEPT
as parens patriae. The State is not seeking to punish an offender but
to salvage a boy who may be in danger of becoming one, and to safeguard
his adolescent life. Even though the child’s delinquency may result
from the commission of a criminal act the State extends to such a child
the same care and training as to one merely neglected, destitute or
physically handicapped. No suggestion or taint of criminality attaches
to any finding of delinquency by a Juvenile CourtA5
Justice Musmanno,
in a celebrated dissenting opinion, used
strong language against the concept of parens patriae as a reason
for denying due process and asked for a re-hearing on all alleged
offences not constitutionally and legally proved. He stated:
But fairness and justice certainly recognize that a child has the right
not to be a ward of the State, not to be committed to a reformatory,
not to be deprived of his liberty, if he is innocent. The procedure for
ascertaining the guilt or innocence of a minor may be designated a
hearing or a civil inquiry, as the Majority says, but in substance and
form it is a trial –
a momentous trial which means even more than
one which confronts an adult, because in the Juvenile Court trial the
defendant’s whole mature life still lies before him. And no matter how
trained and experienced a Juvenile Court judge may be, he cannot by
any magical fishing rod draw forth the truth out of a confused sea
of speculation, rumor, suspicion and hearsay. He must follow certain
procedures which the wisdom of centuries have established 4 6
45Ibid., at p. 525.
46 Ibid., at p. 535. See also p. 529 on court records; p. 530 on punishment;
p. 535 on criminal offences by juveniles. Musmanno, J. was strongly supported
in In re Urbasek, 232 N.E. 2d 716 (1968) where a juvenile, 12-year-old, was
charged with punching an 11-year-old girl. In the Supreme Court of Illinois,
Underwood, J. stated:
A minor found guilty of the requisite misconduct to be adjudged a delin-
quent is committed to an institution where he may be restrained of liberty
for years. It is of no constitutional consequence –
and of limited practical
meaning –
that the institution to which he is committed is called an
Industrial School. The fact of the matter is that, however euphemistic
the title, a ‘receiving home’ or an ‘industrial school’ for juveniles is an
institution of confinement in which the child is incarcerated for a greater
or lesser time. His world becomes ‘a building with white-washed walls,
regimented routine and institutional laws … Instead of mother and father
and sisters and brothers and friends and classmates, his world is peopled
by guards, custodians (and) state employees. (In re Gault, 87 Sup. Ct.,
1428, at p. 1443).
The judgment continues:
When we eschew legal fictions and adopt a realistic view of the conse-
quences that attach to a determination of delinquency and a commitment
to a juvenile detention home, ‘juvenile quarters’ in a jail or a State
institution as described above, we can neither truthfully nor fairly say
that such an institution is devoid of penal characteristics. Though the
purpose of industrial training schools for boys, such as that at St. Charles
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Commenting on the civil or criminal nature of juvenile court
proceedings, Professor Tappan 47 observed:
At the child’s level the experience of a delinquency adjudication in the
juvenile court, its treatment consequences, and its effect on his reputation
and self esteem are as severe –
as criminal
conviction is to an adult. In spite of this, the insensitive perceptions
of an adult world, what appears to be a self-deception induced by
benign but misdirected motives, persists in viewing the court handling
of the the child as an innocuous or even a generally constructive ex-
perience 8
very often more so –
Labelling juvenile court proceedings as “non-criminal” is “a con-
venient, but highly misleading sophistry”.49
V. Evolution of the Law Under Kent, Gault and Winship
Under these three cases, the concept of parens patriae as origi-
nally conceived was breached in the Supreme Court of the United
States. The aims and purposes of the juvenile court were challenged
to the breaking point and its raison d’6tre severely shaken.
In Kent v. United States,50 it was held that the juvenile court
judge “held no hearing. He did not confer with petitioner, his
parents or counsel. He made no findings. He merely entered an
order reciting that ‘after full investigation I do hereby waive’ juris-
diction and directed the juvenile be ‘held for trial for (the alleged
offences) under the regular procedure of the U.S. District Court
in Illinois, is to rehabilitate and train youths whose misconduct has brought
them to these institutions, the incarcerated juveniles’ liberty of action
is restrained just as effectively as that of the adult inmates serving terms
in State and Federal prisons. The modem concepts of penology which
guide the administrators of today’s prisons also place a great emphasis
on training, education and rehabilitation which were once the unique
characteristics of the juvenile system that, in theory at least, justified
the application of lesser procedural safeguards for delinquency hearings.
Now, however, while improbable, a minor may conceivably be confined
for a longer period of time then the period of imprisonment imposed
upon an adult who is found guilty of the same criminal conduct.
(At p. 719).
University.
47 Professor Tappan, Professor of Sociology and Lecturer in Law, New York
4STappan, Unofficial Delinquency, (1950), 29 Neb. L. Rev. 547, at p. 548.
49 Id. See also Antieau, Constitutional Rights in Juvenile Courts, (1961), 46
Cornell L. Quart. 387. (Cert. to U.S.CA. Dist. Columbia).
50383 U.S. 541 (1966). For a Canadian view of this case, see Parker, The
Appellate Court View of the Juvenile Court, (1970), 7 Osgoode Hall L.., No. 2,
155.
No. 2]
PARENS PATRIAE CONCEPT
for the District of Columbia”‘. 51 Thus the Supreme Court dealt
only with waiver proceedings from a juvenile court to the regular
court.
Speaking for the majority, Mr. Justice Fortas said:
The theory of the District’s Juvenile Court Act, like that of other juris-
dictions, is rooted in social welfare philosophy rather than in the
corpus juris. Its proceedings are designated as civil rather than criminal.
The juvenile court is theoretically engaged in determining the needs of
the child and of society rather than adjudicating criminal conduct.
The objectives are to provide measures of guidance and rehabilitation
for the child and protection for society, not to fix criminal responsibility,
guilt and punishment. The state is parens patriae rather than prosecuting
attorney and judge.52
Justice Fortas added however that, “…
the admonition to
‘parental’ relationship is not an invitation to pro-
function in a
cedural arbitrariness”. 53
The Court then concluded that as a condition for a valid waiver
order the juvenile is entitled to a hearing (albeit an informal one),
to the assistance of counsel, to access to social records and pro-
bation and similar reports, and to a statement of reasons for the
juvenile court’s decision.
Four of the nine Supreme Court Justices dissented on the sole
ground that the case involved the construction of a statute ap-
plicable only to the District of Columbia. Their recommendation
was to remand the case to the Court of Appeals for reconsideration
in the light of two of its subsequent decisions.
Kent is the first juvenile case before the Supreme Court. While
the decision itself is limited to procedure for waiver cases, the
majority judgment, while accepting the concept of parens patriae
in juvenile delinquency legislation, seems to limit its application and
51 The Court noted the following arguments of counsel: Firstly, the police
failed to notify parents of child and the juvenile court itself. Secondly, the
juvenile was deprived of his liberty for a week without determination of
probable cause which would have been required in the case of an adult.
Thirdly, the juvenile was interrogated by police in absence of counsel or
parent. Fourthly, he was not warned of his right to remain silent or advised
of his right to counsel. Fifthly, he was fingerprinted contrary to the intent
of the Juvenile Court Act and the fingerprints were unlawfully used in the
District Court proceeding. The Court then stated “However, because we
remand the case on account of the procedural error with respect to waiver
of jurisdiction, we do not pass upon these questions.” Ibid., per Fortas, J.,
at p. 552.
52 Ibid., at pp. 554-55.
53 Ibid., at p. 555.
McGILL LAW JOURNAL
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casts doubt on the flexibility of juvenile court procedures which
have heretofore distinguished that court as a civil and not a criminal
court. 54
In re Gault ;5 is recognized as a landmark decision.50 At the
outset, it should be remembered that the decision is limited to the
54 See Comment, Criminal Offenders in the Juvenile Court: More Brickbats
and Another Proposal, (1966), 114 U. of Pa. L. Rev. 1171; Paulsen, Kent v.
United States: The Constitutional Context of Juvenile Cases, (1966), Supreme
Court Review 167, at p. 168 where Paulsen, in speaking of Kent observed
regretfully:
Thus great numbers of Americans have had their most vital interests in
freedom and in the right to the custody and control of their children
adjudicated by courts employing procedures of debatable constitutional
validity. Today no one can state with authority whether a respondent to
a juvenile court delinquency petition is entitled to the right to counsel;
if so, in what cases and at what stage of the proceedings; whether such
youngsters may invoke the privilege against self-incrimination; whether a
juvenile’s lawyer has the right to inspect the social services record com-
piled by the court staff to assist the judge in making disposition of
the case; whether a child in juvenile court has the right to a jury trial;
whether the full reach of
the 4th Amendment applies to children in
the same manner as to adults; whether the limitations on police interro.
gation which must be observed in criminal cases after Miranda v. Arizona
(384 U.S. 436, 1966) are also to be observed in cases of youths headed
for children’s court. This list offers only a few of the multitude of
questions that a parade of juvenile court cases would put to the Justices.
55 387 U.S. 1 (1966).
56 Gault has been the subject of much legal commentary. See, e.g., Ketcham,
Guidelines from Gault: Revolutionary Requirements and Re-appraisal, (1967),
53 Virg. L. Rev. 1700; Polier, Gault: Its Practical Impact on the Philosophy
and Objectives of the Juvenile Court, (1967), 1 Family Law Quarterly 47;
In re Gault, (1967), 12 Vill. L. Rev. 803; Lepstein, In re Gault: Understanding
the Attorney’s New Role, Juvenile Courts and Lawyers, (1967), 53 A.B.A.J. 812;
George, Gault and the Juvenile Court Revolution, Institute of Continuing Legal
Education, Ann Arbor, Michigan (1968); In re Gault, (1968), 47 Neb. L. Rev.
558; The Children’s Court, Will It Survive Gault?, (1969), 34 Albany L. Rev. 46;
Steinfield, Kerper & Friel, The Impact of Gault in Texas, (1969), 20 Juvenile
Court Judges Journal 154; Lepstein, Stapleton & Teitelbaum, In Search of
Juvenile Justice, Gault and its implications, (1969), 3 Law & Society Rev. 491;
Noyes, Has Gault Changed the Juvenile Court Concept?, (1970), 16 Crime &
Delinquency 158; Cohen, Standard of Proof in Juvenile Proceedings: Gault
Beyond a Reasonable Doubt, (1970), 68 Michigan L. Rev. 567; Lenon, On Re-
examining Gault – Again and Again, (1970), 4 Family Law Quarterly 387;
Parker, Instant Maturation of the Post Gault “Hood” (1970), 4 Family Law
Quarterly 113; Cannon & Kolson, Rural Compliance with Gault: Kentucky,
a Case Study, (1970), 10 Journal of Family Law 300; Zehler, Post Gault – One
Judge’s View of the Juvenile Court, (Winter, 1971), 21 Juvenile Court Journal
112.
No. 2]
PARENS PATRIAE CONCEPT
adjudication phase of a juvenile court hearing where the alleged
misconduct of the juvenile may result in his committment to a
state institution.57
In
the majority opinion, delivered by Justice Fortas, it was
contended that juvenile court proceedings must be regarded as
“criminal” only in reference to the privilege against self-incrimi-
nation. It was held that:
The juvenile offender is now classed as a ‘delinquent’… It is disconcerting,
however, that this term has come to involve only slightly less stigma
than the term ‘criminal’ applied to adults.58 … Juvenile proceedings to
determine
‘delinquency’ which may lead to committment to a state
institution, must be regarded as ‘criminal’ for purposes of the privilege
against self-incrimination. 59
Justice Fortas reviewed the history of the juvenile court. While
agreeing that “the highest motives and most enlightened impulses
led to a peculiar system for juveniles …
the results have not been
satisfactory. Juvenile court history has again demonstrated that
unbridled discretion, however benevolently motivated, is frequently
a poor substitute for principle and procedure… Departures from
established principles of due process have frequently resulted not
in enlightened procedure but in arbitrariness.” 60
57We do not in this opinion consider the impact of these constitutional
provisions upon the totality of the relationship of the juvenile and the
state. We do not even consider the entire process relating to ‘juvenile
delinquents’. For example, we are not here concerned with the procedures
or constitutional rights applicable to the pre-judicial stages of the juvenile
process, nor do we direct our attention to the post-adjudicative or dis-
positional process … We consider only the problems presented to us
by this case. These relate to the proceedings by which a determination
is made as to whether a juvenile is a ‘delinquent’ as a result of alleged
misconduct on his part, with the consequence that he may be committed
to a state institution. 387 U.S. 1, at p. 13.
The juvenile courts generally have jurisdiction in 3 categories. 1. Children
with delinquent tendencies, non-criminal but anti-social behavior, such as
persistently or habitually refusing to obey their parents, acting beyond
the control of parents, habitual truaunts from school. 2. Dependent or desti-
tute children, children neglected by their parents or object of cruelty. 3.
Children who have violated laws defined as crimes if committed by adults.
Presumably the Gault decision is restricted to the third category.
58 387 U.S. 1, at pp. 23-24.
59 Ibid., at p. 49.
0 Ibid., at pp. 17-19.
McGILL LAW JOURNAL
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What, then, are the due process requirements? For Gault they
appear to be 1) right to notice,”‘ 2) right to counsel,8 2 (knowledge
of this right is not a waiver of it) 03 and 3) privilege against self-
incrimination, right to confrontation and cross-examination. 4 The
Court left open the requirement of appellate review and transcript
of proceedings.65
Concurring opinions did not entirely agree with all that was
said by Justice Fortas.
Justice Black based his concurring opinion solely on the grounds
that violation of the three rights are violations against the pro-
visions of the Fifth and Sixth Amendments to the Constitution
which the Fourteenth Amendment made applicable to the states.
Justice White concurred but did not find an “adequate basis in the
61 Notice, to comply with due process requirements, must be given suffi-
ciently in advance of scheduled court proceedings so that reasonable
opportunity to prepare will be afforded, and it must ‘set forth the alleged
misconduct with particularity’. Ibid., at p. 33.
82 … it (the assistance of counsel) is equally essential for the determination
of delinquency, carrying with it the awesome prospect of incarceration
in a state institution until the juvenile reaches the age of 21. Ibid., at
pp. 36-37.
We conclude that the Due Process Clause of the Fourteenth Amendment
requires that in respect of proceedings to determine delinquency which
may result in commitment to an institution in which the juvenile’s free-
dom is curtailed, the child and his parents must be notified of the child’s
right to be represented by counsel retained by them, or if they are unable
to afford counsel, that counsel will be appointed to represent the child.
Ibid., at p. 41.
63Mrs. Gault’s knowledge that she could employ counsel was not an ‘inten-
tional relinquishment or abandonment’ of a fully known right. Ibid., at
p. 42.
The Court is speaking of the parent’s right to counsel and right to waiver.
But quaere whether the parent could waive on behalf of the child whose
rights and interests may be conflicting with those of the parent.
04 We now hold that, absent a valid confession, a determination of delin-
quency and an order of commitment to a state institution cannot be sus-
tained in the absence of sworn testimony subjected to the opportunity
for cross-examination in accordance with our law and constitutional
requirements. Ibid., at p. 57.
05 This Court has not held that a state is required by the Federal Con-
stitution to provide appellate courts or a right to appellate review at all…
We need not rule on this question in the present case or upon the failure
to provide a transcript or recording of the hearings – or, indeed, the failure
of the Juvenile Court Judge to state the grounds for his conclusion. Ibid.,
at p. 58.
No. 2]
PARENS PATRIAE CONCEPT
record for determining whether that provilege (against self-in-
crimination) was violated”. 6 Justice Harlan concurred in part and
dissented in part. He preferred to rest his decision on due process
requirements only and criticized the Court for “failure to provide
any discernable standard for the measurement of due process in
relation to juvenile proceedings”. 7 With respect to self-incrimination,
confrontation and cross-examination, Justice Harlan felt that their
consideration should be deferred.
Justice Stewart dissented on the grounds that a juvenile court
is not a criminal court 8 He did agree that “a state in all its
dealings must, of course, accord every person due process of law” 9
For example, there must not be brutally coerced confession and
there must be timely notice of the purpose and scope of the pro-
ceedings.
In re Winship 70 is the latest Supreme Court case in this trilogy.
As stated in the majority opinion delivered by Justice Brennan,
This case presents the single, narrow question whether proof beyond
00 Ibid., at p. 64.
67 Ibid., at p. 72. Justice Harlan suggested 3 criteria by which the procedural
requirements of due process should be measured: Firstly, no more restrictions
should be imposed than are imperative to assure fundamental fairness.
Secondly, the restrictions imposed should be those which preserve, so far
as possible, the essential elements of the State’s purpose. Thirdly, the
restrictions should be chosen which will later permit the orderly selection
of any additional protections which may prove necessary. Measured by
these criteria, only 3 procedural requirements are necessary to satisfy the
Due Process Clause of the Fourteenth Amendment: Firstly, timely notice must
be provided to parents and children of the nature and terms of the juvenile
proceeding. Secondly, unequivocal and timely notice must be given that
counsel may appear in behalf of child and parents and where child may
be confined to an institution, counsel may, in case of indigency, be appointed
for them. Thirdly, the Court must maintain a written record, adequate to
provide effective review on appeal or in collateral proceedings. (See: 387
U.S. 1, at p. 72.)
0sJuvenile proceedings are not criminal trials. They are not civil trials.
They are simply not adversary proceedings. Whether treating with a delinquent
child, a neglected child, a defective child, or a dependent child, a juvenile
court proceedings’ whole purpose and mission is the very opposite of the
mission and purpose of a prosecution in a criminal court… I am certain
that the answer (in dealing with the serious problems of juvenile delinquency)
does not lie in the Court’s opinion in this case, which serves to convert a
juvenile proceeding into a criminal prosecution. Ibid., at pp. 78-79.
09 Ibid., at p. 80.
70397 U.S. 358 (1969).
McGILL LAW JOURNAL
[Vol. is
a reasonable doubt 7 is among the ‘essentials of due process and fair
treatment’ required during the adjudicatory stage when a juvenile is
charged with an act which would constitute a crime if committed by
an adult.72
While juvenile courts are not criminal courts, “juveniles, like
adults, are constitutionally entitled to proof beyond a reasonable
doubt when they are charged with violation of a criminal law”.73
Justice Brennan continued:
Use of the reasonable doubt standard during the adjudicatory hearing
will not disturb New York’s policies that a finding that a child has
violated a criminal law does not constitute a criminal conviction, that
such a finding does not deprive a child of his civil rights, and that
juvenile proceedings are confidential. Nor will there be any effect on
the informality, flexibility or speed of the hearing at which the fact
finding takes place. And the opportunity during the post-adjudicatory
or dispositional hearing for a wide-ranging review of the child’s social
history and for his individualized treatment will remain unimpaired.
Similarly, there will be no effect on the procedures distinctive to juvenile
proceedings that are employed prior to the adjudicatory hearing.74
Justice Harlan, concurring, stated:
… due process, as an expression of fundamental procedural fairness,
requires a more stringent standard for criminal trials than for ordinary
civil litigation.
When one assesses the consequences of an erroneous factual de-
termination in a juvenile delinquency proceeding in which a youth is
accused of a crime, I think it must be concluded that, while the conse-
quences are not identical to those in a criminal case, the differences
will not support a distinction in the standard of proof.75
Chief Justice Burger, joined by Justice Stewart, dissented. They
protested strongly that juvenile courts are not criminal courts and
the procedures should not be the same.
The Court’s opinion today rests entirely on the assumption that all
juvenile proceedings are ‘criminal prosecutions’, hence subject to con-
stitutional limitations …
Much of the judicial attitude manifested by the Court’s opinion today
and earlier holdings in this field is really a protest against inadequate
7.1 The reasonable doubt test has been succinctly expressed by Chief Justice
Shaw of the Massachusetts Supreme Court:
The burden of proof is upon the prosecutor. All the presumptions of law
independent of evidence are in favour of innocence, and every person
is presumed to be innocent until he is proved guilty. If upon such proof
there is a reasonable doubt remaining, the accused is entitled to the
benefit of it by an acquittal. Commonwealth v. Webster, 59 Mass 295
(1850), at p. 350.
72 397 U.S. 358, at p. 359.
73 Ibid., at p. 365.
74 Ibid., at pp. 366-67.
7GIbid., at pp. 373-74.
No. 2″1
PARENS PATRIAE CONCEPT
juvenile court staffs and facilities. We burn down the stable to ‘get
rid of the mice’…
My hope is that today’s decision will not spell the end of a generously
conceived program of compassionate treatment intended to mitigate the
to a traditional’
rigors and trauma of exposing youthful offenders
criminal court; each step we take turns the clock back to the pre-juvenile
court era. I cannot regard it as a manifestation of progress to transform
juvenile courts into criminal courts, which is what we are well on the
way to accomplishing.7 6
Justice Black, dissenting, argued that it has never been clearly
held that proof beyond a reasonable doubt is either expressly or
implicitely required under any provisions of the Constitution. Due
process of law does not include such proof as a fundamental re-
quirement.
VI. Trends
Of the three Supreme Court decisions, Gault was the most
important as it dealt with general principles and set general guide-
lines.7 7 In the following pages, the writer will discuss some of the
steps taken by state legislatures, judges and legal commentators
to extend the limited confines of Gault to other areas which were
either not dealt with in Gault or specifically excluded by that
decision.
Before specifically embarking on a discussion of these trends,
76 Ibid., at pp. 375-76.
7 7 In an analysis made by Charles Reasons, Gault: Procedural Change
and Substantive Effect, (1970), 16 Crime & Delinquency 161, it was found
that after Gault out of 3,225 juvenile cases in Franklin County (Columbus,
Ohio), appearances with counsel in auto theft cases increased from 11 to
33%; prosecutions were reduced from 18 to 7%, possibly due to stricter
requirements for determining guilt. Appearances with counsel in burglary
cases increased from 18 to 47%. Incorrigibility cases fell from 17 to 11%,
probably due to more stringent screening in the pre-adjudication stage.
to 16%. Total prosecutions
The number of cases dismissed rose from 8%
for burglary fell from 119 to 66.
The writer concludes, at p. 171:
An increase in the presence of counsel and the number of dismissals
and a reduction in the number of cases reaching adjudication and
disposition indicate a shift toward legal fact-finding.
See also: Glen, Developments in Juvenile and Family Court Law, (1970),
16 Crime & Delinquency 198:
The decision of the U.S. Supreme Court in the Gault case has been
accorded a virtually unique acceptance in the courts and legislatures.
The appellate tribunals have been busy testing extensions of this decision
into procedural areas not dealt with by the Supreme Court, and into
aspects of the juvenile court process specifically excluded in Gault.
The legislatures continue to update their juvenile court statutes to
implement Gault, especially in regard to the right to counsel.
McGILL LAW JOURNAL
[Vol. 18
it will be useful to clarify the different stages of a delinquency
hearing.
Briefly stated, there are three stages. Intake, where the au-
thorities decide whether or not to take further action; presentation
before the judge for adjudication; disposition, where the judge
decides what to do with a child found delinquent. Between intake
and adjudication there may be a further step of waiver proceedings,
to decide whether or not the juvenile court should waive juris-
diction to an adult criminal court for trial.71
At the intake or “screening” stage, the handling by police of a
child who may be delinquent should be with extreme circum-
spection and patience. If protection of children requires policemen
to have broader powers to take them into custody than adults,
78 Procedures are not identical in all states, but in general they are as
follows:
The screening process. This is usually broken down into 2 stages, police
screening and screening by the juvenile court’s “intake” department. The
policeman on the beat usually makes the first contact either from a complaint
received or from apprehension at the time of the alleged offence. He can
then
i) release the juvenile, with or without a warning, but without making
a record or taking further action;
ii) release the juvenile but make a brief
“field report” for the juvenile bureau or file a more formal report for
possible further action;
iii) turn the youth to the juvenile bureau; or iv)
refer the case to the juvenile court. In the last instance, the police must
decide whether to return the child to his parents or to detain him. The police-
man is guided by considerations of whether or not the offence is serious,
whether the child is on probation (if he has this knowledge) or if he has had
previous contacts with the police.
In some cities, the minor is brought immediately before a juvenile officer
who decides, usually after a police hearing, whether to take the case to
court or terminate it at this stage, perhaps with a stern reprimand. Notice
of the hearing is given to the parents. If the minor denies his guilt, the
case can be taken to court or dropped, usually also with a reprimand.
If the minor confesses, the officer can release him to his parents with a
reprimand, direct him and perhaps his parents to a community social
agency or refer the case to court. Police records are maintained and release
of information is at the discretion of the police.
“Screening” by intake department. As in the police hearing, the issue of
whether to proceed is based on an assessment of whether future delinquent
behaviour can be otherwise averted, and the seriousness of the alleged
offence. At the intake hearing, the minor, his parents and on rare occasions,
counsel, are present. The screening personnel has the power to impose
“informal probation” where an attempt is made to work out remedial
measures without court referal, refer the case to court or dismiss the charge.
See: Note, Juvenile Delinquents, the Police, State Courts and Individualized
Justice, (1965-66), 79 Harv. L. Rev. 775; Weiss, The Poor Kid, (1971), 9
Duquesne L. Rev. 590; Dobson, The Juvenile Court and Parental Rights,
(1970), 4 Family Law Quarterly 393.
No. 2]
PARENS PATRIAE CONCEPT
then they require special instruction and training in handling
juveniles. One of the first requirements must be that they be
relased to their parents as soon as possible following custody
unless there is evidence that a child is neglected or in need of
protection from his parent.7 9 The flippancy and impertinence of
young people can be an irritant to police who should not allow that to
influence their judgment whether or not to make an arrest.80
With respect to informal action taken by the police of the
“intake department”, Professor Paulsen of Columbia University
writes that such action “can be a kind of informal and unofficial
probation which interferes very much with the life of a child”. He
suggests that “in principle, however difficult the principle may be
to apply, no coercive measures should be taken without a formal
court decision reached after a hearing”.8′
Some writers support the principle of screening. Careful work
done here, especially by the intake department with competent staff,
will help to recognize the more “casual” acts and spare these from
court consideration. It is felt that a fair amount of juvenile activity
is not so much an indication of basic criminal impulse, but may
be an expression of an inherent drive “to experiment, to dare, to
revolt”. “These are not really criminal offences, they deal with
children who are in trouble, not with the law but with their homes
and school environment… They should be handled by social
agencies, not the courts.” 82
Adjudication is the fact finding phase of the court hearing.
Here the judge must decide whether or not the juvenile has com-
mitted the alleged offence, is in fact a dependent child or a neglected
child. The disposition or judgment phase may or may not occur
on the same day as the adjudication. Dispositional alternatives
include leaving the juvenile with his parents, with or without the
supervision of a probation officer, removal to a foster home,
placement in a training school 3
End of Part 1
79See: Paulsen, Fairness to the Juvenile Offender, (1957), 41 Minnesota
L. Rev. 547.
80 See: Myers v. Collett, 268 P. 2d 432 (Utah Supreme Court, 1954).
81Paulsen, Fairness to the Juvenile Offender, op. cit., n. 79, at p. 554.
82 See, e.g., Alper, The Children’s Court at Three Score and Ten: Will It
Survive Gault?, (1969), 34 Albany L. Rev. 46, citing at p. 52 the chief counsel
for the defenders of an 18-year-old girl convicted under a “stubborn child”
section of a Massachusetts Statute. In 1967, 53% or 428,000 of all cases
referred to juvenile courts were handled without a judicial decision. (U.S.
Children’s Bureau, (Juvenile Court Statistics 1967), at p. 11.)
83 See, e.g., the California procedure. Boches, Juvenile Justice in California:
a Re-evaluation, (1967), 19 Hastings L. J. 47.