Juvenile Court Legislative Reform and the Serious Young Offender: Dismantling the Rehabilitative Ideal Barry C

University of Minnesota Law School Scholarship Repository Minnesota Law Review 1981 Juvenile Court Legislative Reform and the Serious Young Offender: Dismantling the Rehabilitative Ideal Barry C. Feld Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Feld, Barry C., "Juvenile Court Legislative Reform and the Serious Young Offender: Dismantling the Rehabilitative Ideal" (1981). Minnesota Law Review. 878. https://scholarship.law.umn.edu/mlr/878 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Juvenile Court Legislative Reform and the Serious Young Offender: Dismantling the "Rehabilitative Ideal" Barry C. Feld* TABLE OF CONTENTS I. INTRODUCTION ....................................... 168 11. WAIVER MECHANISMS .............................. 172 A. JUDICIAL WAIVER ................................... 174 B. LEGISLATIVE WAIVER-REDEFINING JUVENILE COURT JURISDICTION TO EXCLUDE OFFENSES ...... 185 III. MINNESOTA SUPREME COURT ACTIONS ON CERTIFICATION-IN RE DAHL ...................... 189 IV. LEGISLATIVE CHANGES IN THE MINNESOTA JUVENILE CODE ...................................... 192 V. THE MEANING OF THE JUVENILE CODE REVISIONS: THE RATIONALE AND CONSEQUENCES OF REFORM ...................... 197 A. CHANGE IN THE PURPOSE CLAUSE-WHEN IS A JUVENILE COURT No LONGER A JUVENILE COURT?. 197 B. PROCEDURAL ASPECTS OF CERTIFICATION .......... 203 1. Probable Cause Hearings ...................... 203 2. Burden of Proof ................................ 205 C. A PRniA FACIE CASE FOR WAIVER BASED ON PROOF OF AGE AND CERTAIN OFFENSES-DID THE LEGISLATURE OVERRULE IN RE DAHL? ............. 207 1. The Meaning of Prima Facie Case ............. 207 2. A Rebuttable Presumption versus the Burden of Persuasian-TheCalifornia Alternative .... 214 3. The Legislature'sPrima Facie Matrix-the Rationale and its Implementation ............. 218 D. ADVERSARY NATURE AND FORmALrry OF WAIVER HEARINGS ........................................... 222 1. Rules of Evidence ............................... 222 Professor of Law, University of Minnesota. MINNESOTA LAW REVIEW [Vol. 65:167 2. Effective Assistance of Counsel in CertificationHearings and in Juvenile Court Proceedings ..................................... 224 E. DISPoSITION OF SERIOUS YOUNG OFFENDERS AS JUVENILES AND ADULTS-TOWARD AN INTEGRATED SENTENCING SYSTEM ............................... 230 1. Dispositionsof Juveniles as Juveniles ......... 231 2. Dispositionsof Serious Young Offenders as Adults-the Impact of Sentencing Guidelines. 233 3. Enhanced Punishments on the Basis of Uncounseled Juvenile Convictions-The Implications of Baldasar and Burgett ......... 237 VI. CONSEQUENCES AND CONCLUSIONS- DISMANTLING THE "REHABILITATIVE IDEAL".. 239 I. INTRODUCTION The ambivalence and conflict of social policies aimed at controlling youthful deviance are most apparent when confronting persistent or violent young offenders., The justifica- tions for intervening in the lives of young offenders- retribution, deterrence, incapacitation, and rehabilitation-suggest contradictory social policies.2 The juvenile court as a spe- cial institution for controlling youthful deviance is based on the obvious notion that youthful offenders are young as well as offenders.3 Juveniles' immaturity, as reflected in common law in- 1. See generally P. STRASBURG, VIOLENT DELINQUENTS (1978); TWENTIETH CENTURY FUND TASK FORCE ON SENTENCING POLICY TOWARD YOUNG OFFENDERS, CONFRONTING YOUTH CRIME (1978) [hereinafter cited as CONFRONTING YOUTH CRIME]; Feld, Reference of Juvenile Offenders for Adult Prosecution: The Legis- lative Alternative to Asking Unanswerable Questions, 62 MINN. L REV. 515 (1978). 2. One commentator has observed that the reformers generally rejected deterrence and retribution as ade- quate notions to justify criminal sanctions. A criminal law based on such principles had failed to suppress crime and was cruel to individu- als because of its failure to individualize treatment. Certainly such a harsh, poorly conceived system should no longer be applied to children.... The rules of criminal responsibility, based on what seemed to be an outmoded conception of "free will," were thought unsuited to the progress appropriate to the new century, and certainly could have no proper application to children .... Children were considered edu- cable and reformable. Paulsen, Kent v. United States: The ConstitutionalContext of Juvenile Cases, 1966 Sup. CT. REV. 167, 169. See generally F. ALLEN, THE BORDERLAND OF CRne,- NAL JUSTICE 25-41 (1964). 3. There have been various interpretations of the development of the juvenile justice system. See generally L EMPEY, JUVENILE JUSTICE: THE PRO- GREssrvE LEGACY AND CURRENT REFORMS (1979); A. PLATr, TEE CamDsAvEns 1980] JUVENILE COURT REFORM fancy defenses, 4 lessens their culpability for criminal acts. Moreover, responsibility for youthful misconduct may be widely distributed because the obligations to socialize and educate young persons, and to teach them moral values and respect for the law, are shared by their families and communi- ties. 5 Statistics suggest that low-level delinquency is often a symptom of adolescence that will be outgrown in most in- stances. 6 Accordingly, the juvenile justice system with its un- derlying rationale of rehabilitation seeks to protect young offenders from the stigma of conviction through treatment and supervision, procedural informality, and confidentiality. Nevertheless, the victims of criminal acts suffer the same injuries, regardless of the age of the perpetrators. Satisfying the individual and societal needs for retribution when juveniles perpetrate crimes may conflict, however, with the ideal of regenerative intervention. Similarly, punitive approaches to de- ter other offenders require the publicity and visibility of (2d ed. 1977); D. ROTHMAN, CONSCIENCE AND CONVENIENCE (1980); E. RYERSON, THE BEST-LAID PLANS (1978); Fox, Juvenile Justice Reform: An HistoricalPer- spective, 22 STAN. L. REV. 1187 (1970); Mack, The Juvenile Court, 23 HARv. L. REV. 104 (1909). 4. Since criminal liability is premised on rational actors who make blame- worthy choices and are responsible for the consequences of their acts, the common law recognized and exempted from punishment categories of persons who lacked the requisite moral and criminal responsibility. See generally J. HALT, GENERAL PRINCIPLES OF CRIMINAL LAw (2d ed. 1960); Westbrook, Mens Rea in the Juvenile Court, 5 J. FAro. L. 121 (1965). Children less than seven years of age were conclusively presumed to be without criminal capacity, while those fourteen years of age and older were treated as fully responsible. Between the ages of seven and fourteen years, there was a rebuttable presumption of criminal incapacity. See W. LAFAvE & A. SCOTT, CRmINmAL LAw 351 (1972); Fox, Re- sponsibility in the Juvenile Court, 11 WM. & MARY L. REV. 659, 660 (1970); see also Platt & Diamond, The Origins of the "Right and Wrong" Test of Criminal Responsibility and Its Subsequent Development in the United States: An Histor- ical Survey, 54 CALIF. L. REV. 1227, 123347 (1966). This common law doctrine has continuing validity despite the development of the juvenile court and its departure from common law concepts of crime. Juvenile court delinquency jurisdiction still requires a consideration of the child's capacity to commit a crime. See In re Gladys R., 1 Cal. 3d 855, 862-67, 464 P.2d 127, 132-36, 83 Cal. Rptr. 671, 676-80 (1970); see also In re Winburn, 32 Wis. 2d 152, 164-67, 145 N.W.2d 178, 184-85 (1966). 5. Because society is responsible for educating and socializing the young, society may also share some of the blame for a youth's criminal acts that result from a failure to fullill these obligations. See TASK FORCE ON JUVENILE DELIN- QUENCY, PRESIDENT'S COMMISSION ON LAw ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT. JUVENILE DELINQUENCY AND YOUTH CRIME 226-28 (1967) [hereinafter cited as TASK FORCE REPORT]. See also CONFRONTING YOUTH CRIME, supra note 1, at 66. 6. Zimring, American Youth Violence: Issues and Trend, in CRME AND JUSTICE (N. Morris & M. Tonry eds. 1979); Feld, supra note 1, at 531 n.56. MINNESOTA LAW REVIEW [Vol. 65:167 intervention and punishment,7 yet these requirements are in- consistent with traditionally informal and confidential juvenile proceedings. Finally, while juvenile crime rates 8 may indicate a need to incapacitate young offenders to prevent future crimes,9 this need conflicts with policies intended to minimize the loss of liberty to young offenders. Juvenile courts have traditionally assigned primary impor- tance to individualized treatment of juvenile offenders on the theory that the interests of both offenders and society are best served by regenerative treatment. The criminal law applicable to adults accords far greater significance to the offense commit- ted and attempts to proportion punishment.'0 The differences between the two systems become most visible when the com- peting policies of juvenile and criminal courts intersect in juvenile certification proceedings. The disposition of sophisticated, persistent, or violent juvenile offenders poses one of the most difficult issues in the administration of the juvenile justice process. This small but important class of

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