In Court would affirm the lower courts’ holdings

 

In
the early part of 1984, juvenile rights advocates were hopeful. That summer,
the Court was to hear a case that could spell the demise of juvenile preventive
detention.  Reformers were particularly optimistic
because, up until that point, the Court had never explicitly sanctioned
preventive detention in any form.1
Moreover, in 1981, the influential United States District Court for the
Southern District of New York decided United
States ex rel. Martin v. Strasburg.2
In that case, the district court held that New York’s juvenile preventive
detention statute, on its face, violated the Fourteenth Amendment’s Due Process
Clause.3
The following year, the Second Circuit affirmed the district court’s ruling.4

Strasburg I was rich in factual findings. Specifically,
the district court found that New York family court judges were quick to remand
alleged juvenile delinquents to secure detention centers after a five to
fifteen-minute initial arraignment.5
These decisions, according to the district court, were made on the basis of
judge’s “intuition and personal predilections, the antithesis of reasoned
action.”6

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The
preceding two decades of juvenile rights jurisprudence, beginning with In re Gault,7
had afforded children and adolescents bolstered constitutional protections
through strict procedural safeguards in order to prevent the punishment of
presumptively innocent persons.8
Accordingly, juvenile rights advocates were certain that the Supreme Court
would affirm the lower courts’ holdings and find juvenile preventive detention—if
not preventive detention broadly—to be unconstitutional.

Much
to the chagrin of reformers, that did not happen. In Schall v. Martin, the Court rejected the findings of the trial
court and upheld the constitutionality of the pretrial detention of juveniles.9
The opinion mystified many commentators, in large part due to its reliance on precedent
that, most coherently, would have led to the invalidation of preventive detention.10
The decision spurred a rush scholarship examining the seeming incompatibility of
Schall with Gault and its progeny.11
 

Relatively
recent events, like the tragedy surrounding Kalief Browder, have reinvigorated
the national discussion surrounding bail and the fairness of preventive
detention.12
Additionally, the national emergence from the “law and order” and “tough on
crime”- era has led to broad acknowledgement that juveniles are different from
adults and that the criminal justice system should treat them accordingly.13
Thus, Schall is ripe for
reconsideration.

This
paper proceeds in four parts. Part I examines the analytical shortcomings of
the Schall. As noted above, the
majority’s opinion is riddled with misapplication of the Court’s precedent.
This Part will summarize the decision, analyze the cases that supposedly form
the basis for the Court’s decision, and demonstrate the inconsistencies between
the outcome of Schall and the
reasoning of the cases on which it relies. Part II will explore an issue that
the Schall Court left largely
unaddressed: the constitutionally protected, custodial rights of parents and
the way in which pretrial detention of juveniles implicates these rights. Next,
Part III will offer modern data to demonstrate that many of the Court’s implicit
assumptions in Schall—e.g. that
pretrial detention is for the good juvenile—has not born out in the years since
the decision. Finally, Part IV will color the data presented in the previous
part through excepts and summaries of interviews with 10 individuals who have
served time in juvenile detention centers and six parents whose children have
been detained prior to trial. Hopefully, this part will ground in reality the preceding
theoretical, jurisprudential, and empirical discussion.

 

I.              
The
Analytical Shortcomings of Schall

(Roadmap)

a.    
Background:
The Components of the Schall Decision

 

The
Appellees in Schall brought a suit on
behalf of a class of juveniles detained pursuant to Section 320.5(3)(b) of the
Family Court Act.14
 The three class representatives sought
declaratory judgement that the provision violated the Fourteenth Amendment’s
Due Process Clause.15
The district court found that the statute authorized detention without the
requisite due process and accordingly invalidated it.16
The circuit court of appeals affirmed and held that because the majority of
juveniles detained under the statute are released either prior or subsequent to
adjudication, the statute did not serve preventative purposes.17
Instead, the court of appeals held, the statute authorized detention as
punishment for unproven and unadjudicated criminal acts. Accordingly, the lower
court struck down the statute as unconstitutional as to all juveniles.18

When
the case reached the Supreme Court in Schall,
the Court discerned that the dispositive question was “whether preventive
detention of juveniles pursuant to § 320.5(3)(b) is compatible with the ‘fundamental
fairness’ required by due process.'” The Court declared that to answer that
question “two separate inquiries were necessary.” The first inquiry was whether
preventive detention under the statute served a legitimate state objective?19
The second inquiry was whether the FCA’s procedural safeguards were adequate to
authorize the pretrial detention of at least some juveniles charged with
crimes?20

 

                                               i.     First Inquiry

 

Within
the analysis of the first inquiry, the Court conducts something of weighing. It
first addresses the stated purpose of the statute: “Preventive detention under
the FCA is purportedly designed to protect the child and society from the
potential consequences of his criminal acts.”1
The Court acknowledges that there is undoubtedly a legitimate and compelling
state interest in protecting the community from crime.2
Then, relying on Gault, the Court
states that “this interest persists undiluted in the juvenile context.”3
Further, the Court noted that the harm to society from juvenile conduct may be
greater due to higher rates of recidivism among juveniles—this time the Court
cited Gault for its statistics.4

In
order to define the restriction of juvenile’s liberty as part of the state’s
interest in protecting juveniles, the Court attempted to establish that (1)
juvenile’s could not care for themselves and (2) when parents failed, it was
the responsibility of the state to intervene. Specifically, the Court
recognized the juvenile’s “undoubtedly” substantial “countervailing interest in
freedom from even brief institutional constraints.”5
However, again relying on Gault in addition
to Lehman v. Lycoming County Children’s
Services, the Court declared that this “undoubtedly substantial” interest “must
be qualified by the recognition that juveniles, unlike adults, are always in
some form of custody.”6
Moreover, the Court noted that because children cannot take care of themselves,
they are subject to the control of their parents and, the Court held, when “parental
control falters, the State must play its part as parens patriae.”7
As such, according to the Court, a juvenile’s liberty interest may, under “appropriate
circumstances, be subordinated to the State’s ‘parens patriae interest in preserving and promoting the welfare of
the child.'”8 Accordingly,
the Court emphasized “the desirability of protecting the juvenile from his own
folly.”9

The
Court examined the “substantiality and legitimacy” state’s purported interest
by evaluating (1) the widespread use and judicial acceptance of preventive
detention for juveniles and (2) whether the statute was imposed for the purpose
of punishment. The Court relied on the Bell
v. Wolish adaptation of the Kennedy
v. Mendoza-Martinez test to determine the outcome of the second
consideration.10
After defining the state interest underlying the statute, the Court determined
that the purpose of the statute was predominately to serve that regulatory
interest rather than to punish, a per se illegitimate purpose.11

 

                                            
ii.     Second Inquiry

 

After
determining that the State’s interest in preventive detention was legitimate,
and that the detention was not punitive in nature, “the remaining question
before the Court was whether the procedures afforded juveniles detained prior
to fact-finding provide sufficient protection against erroneous and unnecessary
deprivations of liberty.”12
In other words, the Court sought to apply—or perhaps complete—an adaptation of
the Mathews v. Eldridge test.

The
Court looked to acceptable standards of post-arrest detention under the Fourth
Amendment as laid out in Gerstein v. Pugh
and the Due Process Clause as laid out in Kent
v. United States.13
After this analysis the Court found that, “in sum, notice, a hearing, and a
statement of facts and reasons are given prior to any detention under §
320.5(3)(b). A formal probable-cause hearing is then held within a short while
thereafter, if the fact-finding hearing is not itself scheduled within three
days.”14
As such, the Court held that the State’s “flexible procedures are
constitutionally adequate under the Fourth Amendment, see Gerstein v. Pugh, and under the Due Process Clause, see Kent v. United States.”15

Before
concluding its fundamental fairness analysis, however, the Court addressed both
appellee’s and the lower court’s position that “it is virtually impossible to
predict future criminal conduct with any degree of accuracy.” As such,
appellees argued, and the lower court agreed, “the statutory standard fails to
channel the discretion of the Family judge by specifying the factors on which
he should rely in making that prediction.”16
The Court promptly rejected this argument.17
Subsequently, the Court concluded that the statute comported with the “fundamental
fairness” requirement of the Fourteenth Amendment’s Due Process Clause.18

 

b.    
Legitimate
State Objectives

 

If
the Court’s analysis in Schall reads
as though it is muddled, that is because, in fact, the Court’s analysis in Schall was muddled. The Schall Court made at least two
analytical missteps. First, it truncated and conflated the two, distinct
principal tests upon which it relied: the
Kennedy punishment test and the Mathews liberty test. Consequently, the
Court omitted crucial considerations such as an independent analysis of the
individual liberty at stake. Second, the Court distorted its past precedent by
deploying Gault to substantiate
propositions that conflict with the letter and spirit of that case. In doing
so, the Court shifts the trajectory of the juvenile justice jurisprudence.19

1

2

3 Say that I will address
this in the following section but also cite this

4 Quote the Statistis s
from page 22 in Gault and note that this was 18 years prior and not relevant

5

6

7

8 Santosky

9

10 List the factors but
say that this will be discussed below and cite the case

11

12

13

14

15

16 Come back to how this
turned out to be correct and that most people locked up are black and brown
boys

17 (“Our cases indicate,
however, that from a legal point of view there is nothing inherently unattainable
about a prediction of future criminal conduct. Such a judgement forms an
important element in many decisions, and we have specifically rejected the
contention, based on the same sort of sociological data relied upon by
appellees and the District Court, ‘that it is impossible to predict future
behavior and that the question is so vague as to be meaningless.” (quoting Jurek v. Texas, 428 U.S. 262, 272 (1976
(opinion of Stewart, Powell, and Stevens, JJ.); id at 279 (White, J.,
concurring in judgement).

18

19

1 As of April, 1985 the
Court had not decided whether preventive detention statutes violate the eighth
amendment of the United States Constitution. Henderson, The Wrongs of Victim’s Rights, 37 Stan. L. Rev. 937, 986 n.164
(1985).

2

3

4

5

6

7

8

9

10

11 see Feld, CriminalizingJuvenile
Justice:Rules of Procedure for theJuvenileCourt,69 MINN. L.REv. 141,
142-64, 191-209 (1984). Note, Supreme Court HoldsJuvenile PreventiveDetention UnderNew
York Statute Not Violative of Due Process:Schall v. Martin, 26 B.C.L. REV. 1277,
1281-88 (1985); Note, JuvenileJustice- PreventiveDetention ofJuveniles: Have
They Held Your Child Today? Schall v. Martin, 104 S. Ct. 2403
(1984), 1985 S. ILL. U.L.J. 315, 316-19 (1985) hereinafter Have They
Held Your Child Today?. For a discussion of Kent v. U.S., 383 U.S. 541
(1966), a precursor of Gault, in connection with the background and jurisprudence
of the juvenile court see Note, Constitu- tionalLaw-PretrialPreventiveDetention-Pretrialdetention
of an accusedjuvenile delinquent who poses a serious threat of recidivism does not
violate due process, Schall v. Martin, 104 S. Ct. 2403 (1984), 62 U. DEr.
L. REv. 145, 148-52 (1984); Note,Juvenile Law-What Ever Happened to In
Re Gault andFundamentalFairnessin JuvenileDelinquency Proceedings?, 22 WAKE
FOREST L. REV.
347, 349-57 (1987). For additional discussion of the juvenile court movement
and jurisprudence in light of Schall, see Rosenberg, Schall v. Martin: A
Child is a Child is
a Child, 12 Am. J. CRIM. LAW 253, 256-58 (1984); Note, Where Have
All the ChildrenGone? The Supreme Court Finds PretrialDetention of Minors
Constitutional:Schall v. Martin, 34 DE PAUL L. REV. 733, 734-40
(1985); Note, The ConstitutionalityofJuvenile Preventive Detention:Schall
v. Martin – Who Is Preventive-Detention Protecting?, 20
NEw ENG. L. REV. 341, 341-47 (1984-85) hereinafter Who
isPreventiveDetentionProtecting?;Comment, TheSupreme CourtandPretrial
Detention ofJuveniles: A PrincipledSolution to a Due ProcessDilemma, 132 U.
PA. L. REV. 95, 98- 101 (1983) (also contains helpful
references).

12

13

14

15

16 “1. At the initial
appearance, the court in its discretion may release the respondent or direct
his detention.

 

3.
The Court shall not direct detention unless it finds and states the facts and
reasons for so finding that unless the respondent is detained;

(a)
there is a substantial probability that he will not appear in court on the
return date; or

(b)
there is a serious risk that he may before the return date commit an act which
if committed by an adult would constitute a crime.”  

17

18

19

20