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June 14, 2004

Navigating the Juvenile Justice System - Getting the Best Result for the Child
By Vince Imhoff, Esq. & Dan Rhoads

When a child breaks the law, there are two alternative paths to rehabilitation. The common perception is that the criminal justice system is a harsher consequence than the juvenile court, whose original purpose was to protect children. However, the two paths seem to be diverging as the juvenile court becomes more retributive and the criminal courts view of minors progresses.

Although some areas have strong juvenile rehabilitation programs due to attention and investment, many juvenile systems are overburdened and thus lackluster. Parents and attorneys must think of creative ways to optimize the development of children, rather than dumping them into one of the two justice systems.

What is the juvenile court?

The juvenile court is distinct from the criminal court. A delinquency proceeding is not a criminal case, and a finding of delinquency is not a conviction. However, the recent trend is away from protection of minors and toward accountability for their actions.

The juvenile courts original purpose was to promote the welfare of children, rather than to punish minors for criminal acts. This was the concept of parens patriae. Because the process was considered civil and not adversarial, minors did not enjoy constitutionally required procedural protections.

Two Supreme Court opinions in the 1960s marked the beginning of the transformation of the juvenile court. First, in U.S. v. Kent, the Supreme Court ruled that juvenile proceedings must measure up to the essentials of due process and fair treatment. 383 U.S. 541, 562 (1966). A year later, in In re Gault, the Court held that the juvenile process deprived minors of the rights to notice of the charges, to counsel, to confrontation and cross-examination, to privilege against self-incrimination, and to a transcript of the proceedings. 387 U.S. 1 (1967).

In order to come into compliance with the Constitution, the juvenile courts proceedings came to resemble those of the adult criminal court more closely.

Who is a juvenile?

At common law, three categories of minors emerged. Infants under the age of 7 were considered to have no criminal capacity. Juveniles between ages 7 and 14 were presumed to lack criminal capacity, but the state could rebut the presumption by showing that the juvenile knew the wrongfulness of his conduct. Finally, minors at age 14 and older had the same criminal capacity that adults had. LaFave, Criminal Law 9.6(a) (4th ed. 2003).

The jurisdiction of the juvenile court is now codified in ARTICLESs. A minority of the states follows the common-law classifications. The majority is somewhat more lenient. In those states, there is a conclusive presumption of incapacity below a specific age, usually 14 years, but ranging from 10 to 16 years. LaFave, Criminal Law 9.6(b).

Most states are willing to prosecute minors in criminal court if they violate specific offenses. The California law is illustrative. Persons under the age of 18 are generally within the jurisdiction of the juvenile court. Cal. Welf. & Inst. Code 602(a) (2005). But minors 14 or over may be prosecuted for committing either murder or sex offenses. Cal. Welf. & Inst. Code 602(b).

The trend among the states is toward subjecting younger people to criminal proceedings. As a result of perceived rising juvenile crime and a distrust of the progress toward rehabilitation efforts, 47 states since 1992 have adopted laws lowering the age in which juveniles may stand trial as adults. Note, 41 Ariz. L. Rev. 193, 194 n.8 (1999).

The most common procedure for transferring a minor to adult court is the judicial waiver. Present in almost all jurisdictions, a judicial waiver occurs when a juvenile court judge uses his discretionary authority to transfer a juvenile case to an adult court. LaFave, Criminal Law 9.6(d). The majority of states have adopted most or all of the Kent criteria for judicial waiver. These criteria take into account the seriousness of the offense and the way it was committed, the damage caused, the previous history and disposition of the juvenile, and the publics safety.

There are also prosecutorial and legislative waivers. On a prosecutorial waiver, or direct filing, both the criminal and juvenile courts have jurisdiction; and the prosecutor has virtually total discretion to choose which forum will hear the case. A legislative waiver means that the law requires minors of a specific age who have committed specified crimes to be tried in criminal court. Id.

Records and Consequences

Often, the records of juveniles can be sealed; but the trend is toward greater accountability.

In California, a person may petition the court to seal the juvenile court record five years after the last juvenile case ended or once the person turns 18. Cal. Welf. & Inst. Code 781(a). The record is usually not sealed when the juvenile offends at age 14 or older and commits a felony, a serious misdemeanor, or a violation of the vehicle code. 781(c). If a minor is tried in criminal court, the record usually cannot be sealed. 781(e). A sealed record can be destroyed five years after it was sealed or once the person turns 38. 781(d). If the record is sealed, no one can see it without the persons permission; and the person may legally tell employers and school admissions officers that he has never been arrested.

The consequences of having a criminal record are the reasons that sealing the record is desirable. Depending upon statutes and the offense committed as a juvenile, a person with a record may be denied a drivers license, admission into college or into the military, and the right to vote. Finding gainful employment can be difficult if not practically impossible.

Navigating the System

The common perception is that a delinquency proceeding is preferable to a criminal trial. Where juvenile-court results do not remain on the persons criminal record, the advantage over a trial is clear. However, [t]he law has evolved and now . . . seeks to build a record upon which, at some future date, children may be incarcerated for years or decades. Vandervort, Children and the Law: When Minors Face Major Consequences, 80 Mich. B.J. 36 (2001).

This is not to say that all hope is lost. A creative private attorney might be able to help a child facing a judge to avoid institutionalization altogether, instead of dumping the person into one system or the other. In some cases, the attorney might seek psychological or psychiatric examinations and/or neurological or medical examinations to determine which defenses are feasible. Other defenses can be raised by demonstrating a history of abuse or neglect and/or exposure to violence. See Vandervort, supra. The outside-the-box approaches to helping minors are limited only by his or her attorneys creativity and capabilities.

Vince Imhoff is the Managing Partner of Imhoff & Associates, P.C., Criminal Defense Attorneys. Originally from Chicago, he is admitted to practice law in Illinois, California and Pennsylvania. He obtained his Bachelors degree in Political Science from Lewis University, and earned his law degree from Illinois Institute of Technology/Chicago-Kent College of Law in 1989. From 2000 through 2002, Mr. Vince Imhoff was the Assistant Coach for the trial team at Loyola University School of Law.

With articles published in the LA Daily Journal, Mr. Vince Imhoff is currently a member of the State Bar of California, the California Attorneys for Criminal Justice (CACJ), State Bar of Illinois, and the National Association of Criminal Defense Lawyers (NACDL).

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