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Note: In re the Welfare of Due Process

By Kristin K. Zinsmaster. Full text here.

The juvenile justice system is not the same as when it started. This Note argues that the juvenile court has become as punitive, as public, and as formalistic as the adult system from which it was supposed to differ. Furthermore, the modern juvenile court suffers from the precise problems against which juries historically guard. The racial bias and the high degree of judicial discretion inherent in the juvenile court thus demand that juveniles be entitled to a jury trial. Kids are still different from adults, but they are not so different that they can be denied due process of the law.

“Get tough” political platforms and punitive legislative reform have demanded that courts reexamine what due process rights must be made available to young offenders. In 2008, the Kansas Supreme Court broke with existing precedent when it decided that juveniles tried in that state are entitled to a trial by jury under the federal Constitution. This decision has rekindled the debate concerning the goals of juvenile justice, the reality of the system as it functions today, and fundamental fairness. This Note draws upon such legal precedent, supplementing the analysis with an examination of the modern realities of juvenile justice, such as which juveniles are incarcerated, the correctional facilities used, and the effect of a juvenile adjudication, and argues that Kansas got it right. It analyzes the question of whether juveniles have the right to a trial by jury with attention to historical underpinnings, legal precedent and systemic change.

This Note concludes with the observation that juries in juvenile court may not always be required. To the extent that true efforts are made to return the system to its rehabilitative roots, an outcome that is desirable from a policy perspective, the added expenditure of time and money that juries entail can perhaps rightfully be avoided. For so long as juvenile offenders are treated as punitively as adults—warehoused and supervised in the name of punishment rather than rehabilitation—they are entitled to adult due process protection, which necessarily includes the right to trial by jury.