The right to counsel for children in juvenile transfer hearings

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Washington DC, 1965In 1961, in Washington DC, a woman was robbed and raped in her own apartment.[1] Fingerprints matched a 16-year-old kid named Morris Kent. He had a bit of a record with the juvenile court, having been apprehended when he was only 14 for a slew of purse-snatchings and burglaries. So, having been under the authority of the juvenile court for two years already, and now standing accused of such a heinous crime, the juvenile court judge felt justice might better be served if Morris was instead tried as an adult in criminal court, rather than as a delinquent in juvenile court.

Morris’ mother quickly hired a lawyer to represent him, who immediately went to the juvenile court’s social service director – the person who had been ultimately responsible for the court’s supervision of Morris during the previous two years’ probationary period. But the lawyer was denied access to his client’s social service file. So he instead filed a motion with the judge to grant him access to the file, and also filed a motion for the juvenile court judge to retain jurisdiction over Morris’ case in order to maintain the same course of treatment and rehabilitation he’d been on for the past two years. Morris’ lawyer assumed there would then be a hearing on his motions, with a full opportunity to argue his side of the facts before the judge. But the judge held no hearing. He made no ruling on any of the motions. He made no findings of fact. Instead, the juvenile court judge entered an order that only said, after a “full investigation, I do hereby waive” jurisdiction over the petitioner – Morris Kent – and direct that he be “held for trial for [the alleged] offenses under the regular procedure of the U.S. District Court for the District of Columbia.”

In just about every state, including the District of Columbia, the juvenile court was given authority to waive its jurisdiction over a child in certain circumstances. The contention was that certain offenses were so heinous that, if committed by an adult, they would amount to a felony or, worse, that they could be punishable by death. In those cases, if the juvenile judge felt the child was not amenable to a state-sponsored program of treatment, training, and rehabilitation, then the public good would be best served by transferring the child’s case to adult court.

But before doing so, most juvenile courts were required to conduct a full investigation. In many states, however, this “full investigation” followed the same form as all other juvenile court proceedings – meaning there was essentially no form at all. If there was a formal hearing in which the child could present his side of the argument, he was lucky. Morris Kent appealed his case all the way to the U.S. Supreme Court, where the question before the Court was whether the child had a right to be heard at this stage and whether that right to be heard contained the right to due process under the Fourteenth Amendment.

The Warren CourtIn Kent v. United States, in 1966, the U.S. Supreme Court noted that the “objectives” of the juvenile courts 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. But the admonition to function in a ‘parental’ relationship is not an invitation to procedural arbitrariness.” In other words, if the premise that the juvenile court rightly afforded children special protections that should not be afforded to adults – including protection from having to face criminal charges and questions of guilt and innocence – was to be accepted, then whether or not a child ought to be deprived of those special protections by being transferred to adult court is a question of critical importance:

“there is no place in our system of law for reaching a result of such tremendous consequences without ceremony — without hearing, without effective assistance of counsel, without a statement of reasons. It is inconceivable that a court of justice dealing with adults with respect to a similar issue would proceed in this manner. It would be extraordinary if society’s special concern for children . . . permitted this procedure.”

Children, therefore, have a right to a formal hearing before having their cases transferred to adult criminal court, and the formal hearing “must measure up to the essentials of due process and fair treatment.” Despite its sweeping language questioning the validity of juvenile court procedures, in Kent v. United States the Court was narrowly focused on whether a child had a right to due process protections in hearings to determine if his case should be transferred out of juvenile court so that he could be tried as though he were an adult criminal defendant. Without ruling on it, the Court had also made clear its “substantial concern” for the complete absence of due process protections available to children in all other juvenile court proceedings. What then?

It only took another year to fully settle the issue, as the case of an Arizona teenager named Gerald Gault was appealed to the U.S. Supreme Court.

(Image of Washington DC circa 1965, via Flickeflu.  Image of the Warren Court (1965-67), via OYEZ.)


[1] Our recounting of events comes from the U.S. Supreme Court’s opinion in Kent v. United States, 383 U.S. 541 (1966).