By Robert E. Shepherd, Jr.
Robert E. Shepherd, Jr., is a professor of law at the University of Richmond's T.C. Williams School of Law in Richmond, Virginia. He is also a contributing editor to Criminal Justice magazine and former chair of the Section's Juvenile Justice Committee.
On November 10, 1999, a juvenile court judge in Jefferson County, Colorado, dismissed pending juvenile delinquency charges against an 11-year-old Swiss-American boy on the ground that the youth had been denied his right to a speedy trial. The charges in the highly publicized case arose from a neighbor's complaint in June that the boy was molesting his sister. The juvenile finally was taken into custody in handcuffs at 10:30 p.m. on August 30. He then spent seven weeks in a detention facility before being placed in foster care, largely because the parents had returned to Switzerland after the arrest. The judge ruled that the delay between the date the boy was taken into custody and the day set for trial exceeded the permissible 60-day period for an adjudicatory hearing in Colorado law. (THE DENVER POST, Nov. 11, 1999.) Despite the unusually high visibility of this case both in this country and in Europe, the general issue of juvenile speedy trial rights has become increasingly important in more typical cases all across the country. Much of the recent attention has been sparked by the research and writings of Dr. Jeffrey A. Butts of the Program on Law & Behavior at the Urban Institute in Washington, including the published results of a study he directed for the National Center for Juvenile Justice, which was funded by the federal Office of Juvenile Justice and Delinquency Prevention. (Jeffrey A. Butts & Gregory J. Halemba, WAITING FOR JUSTICE (1996).)
Case processing research
Based on extensive case data files, the case processing research by Butts and others at the Center revealed some startling facts. During a two-year period, an analysis of more than 500,000 cases from juvenile courts in 16 states found that the median period between arrest and disposition was 40 days; 25 percent of all cases exceeded 90 days. In the largest counties analyzed, the median processing time for petitioned delinquency cases was 85 days, and almost half the cases had disposition times in excess of 90 days. (Jeffrey A. Butts, Necessarily Relative: Is Juvenile Justice Speedy Enough?, 43 CRIME & DELINQUENCY 3 (1997).) Even when juveniles formally charged with delinquency were placed in secure detention awaiting trial-a situation that cries out for expedited case handling-the median processing time to disposition was 42 days. Butts also discovered that "even after 120 days, more than 20 percent of formally adjudicated cases had yet to reach disposition." ( Id. at 12.) These data present a disturbing picture of justice delayed in a separate juvenile justice system expressly designed to address children charged with delinquent offenses in an age-appropriate fashion. Developmental considerations
Delay in the adjudicatory and dispositional processes of juvenile and family courts can be a more significant problem than in adult courts because of the unique developmental characteristics of children and youth. Juveniles have a different sense of time from adults, especially when they are younger; they have a reduced ability to foresee the future and cope with delays from adults, and their sense of accountability for behaviors is diminished when the sanction is delayed. (Anne Rankin Mahoney, Time and Process in Juvenile Court, 10 THE JUSTICE SYSTEM J. 37 (1985).) Thus, if a child is taken into custody around Thanksgiving for a delinquent act and detained until a trial during his friends' spring break at school the next year, the delay has considerably more impact than a similar delay with an adult. From a treatment perspective it would be like a parent catching a child doing something wrong and saying "I am going to punish you for this in a few weeks." Hardly a good prescription for effective discipline. In addition, because detention centers are primarily viewed as "short term" holding facilities, the educational and treatment programs are frequently rudimentary and a child can be losing very valuable time from school or an alternative placement with educational or treatment components. Thus, juveniles have a greater need for the expeditious handling of their cases than adults and the law should reflect this need.
Applicability of constitutional requirements
The historic decision of the United States Supreme Court in In re Gault, 387 U.S. 1 (1967), did not address the availability of the Sixth Amendment guarantee of a right to a speedy trial, and no subsequent case has specifically ruled that such a right extends to children in delinquency proceedings in the juvenile court. As a result, the case law on the right to a speedy trial has been somewhat mixed. Some cases have held that the juvenile justice system is still different from a criminal court and uniquely focused on rehabilitation. Thus, the constitutional rights that inhere in an adult criminal trial are not all applicable to such juvenile proceedings, pointing in part to the refusal of the Supreme Court to extend the right to a jury trial to juveniles in McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
These cases point to the essential historical difference between juvenile courts and criminal courts, and the reasons for the continued informality of proceedings in the former. In a larger number of cases, however, the courts choose to apply the Sixth Amendment or comparable state constitutional speedy trial rights directly to juveniles. (See, e.g., In the Matter of the Welfare of J.G.B., 443 N.W.2d 867 (Minn. App. 1989); In the Matter of Anthony F., 104 Misc.2d 1024, 430 N.Y.S.2d 479 (Fam. Ct. N.Y. Cty. 1980)), or based on the Fourteenth Amendment due process analysis utilized in Gault. (See, e.g., In the Interest of C.T.F., 316 N.W.2d 865 (Iowa 1982).) When such a constitutionally based premise for the requirement of a speedy trial is used, the courts generally rely on the same factors delineated by the United States Supreme Court for criminal cases in Barker v. Wingo, 407 U.S. 514 (1972): 1) the length of the delay in going to trial; 2) the reason or reasons for that delay; 3) the defendant's assertion of the right; and 4) the prejudice to the accused flowing from the delay. (407 U.S. at 530-32) Few cases seem to focus on the developmental factors peculiar to juveniles and how they may relate to the Barker factors, especially the one dealing with the existence of prejudice.
It would appear that the majority rule articulated in cases applying the speedy trial constitutional requirements to juvenile proceedings is most applicable to such matters today as punishment and accountability have become guiding principles in the new juvenile court where informality and a treatment orientation have been de-emphasized. In a recent decision by the Virginia Court of Appeals, recognizing an insanity defense in juvenile court as a matter of due process, the court pointed out that despite the noble objectives of providing "measures of guidance and rehabilitation for the children and protection for society" as described in Kent v. United States, 383 U.S. 541, 555-56 (1966), "an adjudication of delinquency has wide and serious ramifications." ( Chatman v. Commonwealth, 30 Va. App. 593, 518 S.E.2d 847, 850 (1999).) The gulf between juvenile and criminal proceedings has narrowed considerably and juvenile court jurisprudence will likely reflect that narrowing in increasing volume.
Speedy trial statutes and rules
Even in the absence of extensive case law recognizing constitutionally based speedy trial rights for juveniles, many states have adopted statutes or promulgated court rules prescribing the expected pace of court processing, and these provisions have the advantage of obviating the necessity for a consideration of the various Barker factors. The provisions vary considerably from state to state, both in regard to the timelines established and in the triggering events that start the clock ticking. There is also some diversity with regard to the sanction-imposed release from a detention facility or dismissal of the charges. Georgia's statute, for example, requires that the adjudicatory hearing must be held within 10 days after the filing of a petition if the youth is in detention or within 60 days if the juvenile is free. (GEORGIA CODE ANN. § 15-11-26) However, case law in the state seems to indicate that these requirements can be extended on motion, or waived, and will result only in dismissal without prejudice. Thus, although the provision is very demanding for detained youth, it is not very absolute in enforcement. New Mexico, on the other hand, has a longer time period in its court rules-30 days if the juvenile is detained and 120 days if free-but provides that if the time limits are not met "the petition shall be dismissed with prejudice." (NEW MEXICO CHILDREN'S COURT RULE 10-226; Doe v. State, 88 N.M. 644, 545 P.2d 1022 (App. 1976).) Other states may have time limitations in their code or rules and provide that the youth be released from confinement if the provision is violated, but not grant a dismissal of the charges. In addition, they have established no sanction if the youth is free and such a violation occurs. (VIRGINIA CODE ANN. § 16.1-277.1 (21 days between detention and adjudicatory or transfer hearing and 120 days if not detained).) Some jurisdictions may dismiss the charges with prejudice even if the rule or statute provides no sanction. ( In re L.R.T., 209 Mont. 421, 680 P.2d 579 (1984).)
Tactical and policy concerns
Defense lawyers in juvenile court often want to delay cases unless a client is in detention because the longer the proceedings take the greater the opportunity for the youth to demonstrate good behavior and adjustment to school, which will favorably influence the court disposition. This strategy can backfire, however, if the juvenile commits other offenses while awaiting trial. If the juvenile is detained, counsel should advance the trial to as early a date as possible consistent with having adequate time for pretrial preparation, especially if a decision has been made to plead guilty. As juvenile and family court dockets have exploded with additional cases-both delinquency and abuse or neglect matters-the issue of a speedy trial becomes more pressing. Jeffrey Butts has noted that the presence of a high volume of drug cases on a court's docket has a disproportionate impact on delays in processing cases. However, crowded dockets alone will not justify delays in bringing juvenile cases to trial, especially when the child is in detention.
Apart from the possible prejudice to individual juvenile clients from delays in taking a case to trial, the systemic problems created by case processing delays are significant. Policy makers have urged that delinquency cases should be processed quickly so as to send the message to juveniles that illegal behavior will receive a swift response from the legal system. Butts has suggested that simply expanding speedy trial rights to juveniles will not alone be successful in preventing case processing delays; administrative case flow management practices may be necessary to bring about any meaningful reform.
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