These kids won't get a trial — at least the kind of trial that most of us imagine. In Illinois, where I live, and in many other states, juveniles like these kids have no right to a jury trial. Instead, when a child is charged with a crime, a judge, who is elected or appointed by the state and who is most likely white, decides whether that child, or teen, is guilty.
This system began in the late nineteenth century. Prior to that time, when youth held the right to a jury trial, there was concern that children were being inappropriately criminalized. Reformers believed a different system for youth — with, among other characteristics, an understanding, parent-like judge and a separate detention facility — would rehabilitate juveniles.
Since that time, however, the rehabilitative model has been criticized in public discourse and by scholars. The U.S. Supreme Court itself has recognized "[t]here is evidence … that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children."
The "Kids for Cash" documentary illustrates one problem with this so-called rehabilitative system that places judges — instead of juries — at the helm. Two judges were convicted of taking bribes of around $2 million from two private detention centers. Although thousands of cases were subsequently thrown out, youth were scarred by improper detentions or other inappropriate treatment. Just this past fall, a media report from Texas showed judges have handed out juvenile cases worth up to $500,000 a year to lawyers who contribute to their campaigns and who may poorly represent the youth. Kids are caught in the middle of these money-making schemes.
Recognizing some issues with the juvenile system, the U.S. Supreme Court has held that juveniles hold certain constitutional rights, such as the right to notice of charges, to cross-examine witnesses, not to self-incriminate and to proof beyond a reasonable doubt. Although, historically, youth held the right to a jury trial, with a legal sleight of hand the court has justified its decision that juveniles hold no such right. It has declared that juvenile proceedings are not criminal proceedings under the Sixth Amendment; they are not because the proceedings are for the purpose of rehabilitation. But by any definition of criminal, the proceedings and "sentences" juveniles face are certainly "criminal." These juveniles are charged with the same crimes as adults and subject to sentences that can even exceed those imposed on adults. In essence, the court is saying the state's promise of good intentions justifies denial of the constitutional right to a jury trial — despite any historical foundation for this action.
The historical notion of parens patriae — the idea that the state can act in a parental role and take custody of a child in certain circumstances — has been cited at times as support for the court's allowance of "special" treatment of the rights of children. Yet, if a youth was accused of a crime, a jury would still need to convict in order for the state to take custody of that child.
Where the court has actually given constitutional protections to juveniles, it has done so under the due process clauses of the Fourteenth and Fifth amendments — not the Sixth Amendment right to a jury trial provision. Rights have been granted because of the notion that those protections are necessary to guard the fact-finding process in juvenile cases. As for the right to a jury trial, the court has decided that the jury is not important to the fact-finding process; judges can be fair and "one cannot say that in our legal system the jury is a necessary component of accurate factfinding." Despite this self-interested declaration by the judges that they were as good as juries at finding facts, no support was provided for this proposition.
In fact, their declarations are inapposite to our constitutional history. The right to a jury trial was set forth in the U.S. Constitution because juries were to check judges and the power of the state. William Blackstone declared that judges could be biased toward their own and subject to corruption. As illustrated by the "Kids for Cash" documentary and the Texas issues, these historical problems with judicial decision-making continue to remain applicable today.
In the case in my town, two of the eight boys have already pled guilty. This means a judge was not involved in the rehabilitative process that was supposed to occur at trial. And there was no trial. Instead, the state — the prosecutor — effectively became the accuser and the decider. This type of plea bargaining occurs in most juvenile cases. And different from typical plea bargaining for adults where there is at least some threat of the defendant exercising the right to a jury trial — albeit often a small threat given the stark differences in the sentence for a plea versus after a jury trial — youth usually do not have that bargaining chip.
A significant question here is whether the prosecutor and judges in this case will fairly decide the guilt of each youth. It's unclear. Could the fact that they are elected affect their decision-making? Could discrimination affect their determinations? Both are certainly possible. At the same time, the Constitution and history show that these youths should be tried by juries.
What can be done? The U.S. Supreme Court is unlikely to revisit this issue — though it should. In his book "51 Imperfect Solutions," Judge Jeffrey Sutton has proposed a larger fix to these types of constitutional issues. State courts can interpret their own state constitutions to require the right to a jury trial. In 2008, the Kansas Supreme Court decided that juveniles possessed the right to a jury trial. But, in 2017, my state of Illinois rejected the idea that a girl accused of murder had the right to a jury trial. Other state courts continue to have the opportunity to fall out of step with the U.S. Supreme Court and restore this fundamental right to its youngest citizens.
Suja A. Thomas is the Peer and Sarah Pedersen Professor of Law at the University of Illinois College of Law and the author of "The Missing American Jury" (Oxford University Press, 2016) and the recent article "Why (Jury-Less) Juvenile Courts Are Unconstitutional."
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