Juvenile Justice on Appeal — article now available via SSRN

In the majority of states, juveniles do not have the right to trial by jury in delinquency court.  Instead, their cases, if contested, are decided by a single individual — the judge.  If you practice in juvenile delinquency court long enough, you see the ways in which a judge’s objectivity can easily become compromised.  They become jaded, discouraged, and cynical.  They see many of the same kids — and often the same families — again and again.  They develop bonds with prosecutors, probation officers, and police officers, making them less open to defenses put forward by the juvenile and her lawyer.  They have lengthy dockets, which they must move, causing them to resent the time taken up by contested hearings.  In many states, including mine, they are elected and under public scrutiny to be “tough on crime” and not to “let bad kids walk,” creating more pressure to adjudicate juveniles delinquent.  The list of reasons why juvenile court judges are unlikely to be objective fact-finders goes on and on.

This reality is compounded by the fact that very few cases are appealed.  In many states, juveniles are not told of their appellate rights, and — as discussed in an earlier post — they do not have the right to automatic post-adjudication counsel.  Further, many juvenile defenders are not adequately trained to preserve their clients’ appellate rights, resulting in appealable issues being improperly preserved.

With that in mind, the title of this post is the title of a newly-published article that addresses this very issue.  It is authored by Megan Annitto, Director of the Center for Law and Public Service (West Virginia College of Law), and it appears at 66 U. Miami L. Rev. 671 (2012) (available via SSRN; soon to be publicly available here; also available on Lexis/Westlaw).

Here is the introduction:

Despite the existence of a right to appeal juvenile delinquency cases in all states, the outcome is nearly always left to a single judge. Although the discretion of judges in juvenile delinquency cases is not “unreviewable,” in practical terms, juvenile delinquency cases are rarely subject to appellate review.

Imagine, for example, the situation of Joan, a fifteen-year-old African-American high school student living in a low-income neighborhood. Joan has had no prior contact with law enforcement. Joan and her friend were at a park on the property of the neighborhood high school at 11:30 p.m., a local nighttime hangout where groups of youths congregated. Joan sat on a park bench with her friend as her friend smoked a cigarette.  A few groups of other teens were nearby on the basketball court, including Joan’s brother, who put some of his possessions in her bag at one point when he went to the court to play basketball. A fight broke out and a number of police officers responded. As Joan and her friend rose to leave, two officers approached the area where they had been seated. The officers asked them to come toward two police cruisers parked nearby where at least two other officers were present. Having observed Joan’s friend throw down her cigarette, one of the police officers inquired what Joan’s friend had been smoking. He then asked Joan if he could open the bag she was holding. She shrugged her shoulders, moved the strap of her bag from her shoulder into her hand, and held it forward toward one officer. She did not, however, give a verbal answer. The officer reached forward, opened the bag, and discovered a weapon. Joan was arrested and charged with felony possession of a weapon on school property. Joan did not know that the knife, which belonged to her older brother, was in the bag. Joan’s brother had placed the weapon inside with keys and a few other items before playing basketball. He fled from the park when the fight broke out.

Joan appeared in court with her older sister, age seventeen, who accompanied her because her mother could not miss work. Joan waived her right to appear with counsel.  She then pled, confused about the process, and later received one year of probation. As a result of her adjudication for a felony in her jurisdiction, Joan’s DNA will be included in the state DNA registry under the statute requiring registration of felons, which includes juvenile adjudications.  She also will be eligible for enhanced adult sentencing if she is convicted later as an adult.

Age and previous experience with law enforcement are permissible factors for consideration under the totality of the circumstances analysis that applies in the court’s analysis of consent to search. In Joan’s jurisdiction,  age and previous experience with law enforcement have not been explored nor applied in great detail in existing case law. Case law exists, however, to support suppression of the item found in the search of Joan’s bag. At trial, it also would have been necessary to show that Joan knowingly possessed the weapon. But none of the issues in Joan’s case were litigated, and, therefore, will never be discussed on appeal.

Six months later, Joan, whose picture was then included in the juvenile photo book at the precinct after her first arrest, was identified by another teenager in a photo array as having committed a robbery with a knife in the neighborhood. This time, Joan did not waive her right to counsel and the case went to trial. Joan claimed she was innocent but the eyewitness insisted that Joan was the perpetrator. The same judge who handled Joan’s prior case presided over her robbery trial. The judge also had a report from probation that Joan’s compliance was mediocre. The probation report stated that Joan was hanging around with “gang-involved” youth, a term the office uses when a child reports that he or she knows people in gangs. At trial, Joan lost, despite conflicting testimony by the minor who identified her in the photo array and the actual victim, who was unable to identify Joan. Joan was eventually ordered to confinement in a juvenile facility. Joan’s attorney, strapped with a caseload above the recommended norm, had received little appellate training, so Joan’s case was not appealed. Joan now has two felony juvenile adjudications on her record, adjudications which contain serious questions about their reliability and accuracy.

While Joan’s cases are hypothetical, the facts used are not uncommon. The lack of appeals in juvenile practice has been identified as a problem throughout the country by the ABA, scholars, and practitioners. Without a vibrant appellate practice, the legal rights of juveniles suffer and “are often illusory.”  Not surprisingly, juvenile courts were recently explored as a probable “breeding ground” for wrongful convictions. Moreover, the juvenile delinquency process often remains hidden from any form of public participation due to closed courtrooms in many states, coupled with the lack of right to a jury trial, making appeals one of the only avenues of transparency. Even in the adult criminal context, which remains open to the public, when other public characteristics of the appellate process are curtailed, such as production of written opinions and oral argument, Professor Paul Carrington plainly states, “we should worry about that.” When appeals are simply absent, the implications multiply.

The Supreme Court has held that the right to a criminal appeal is not a constitutional right, but appeals are so ingrained in our concept of justice that every state provides the right to file an appeal for both adult and juvenile defendants. Criminal defendants are generally viewed as being able to pursue appeals with frequency. In contrast, there is widespread acknowledgement that appeals in the juvenile delinquency context are lacking, even “nearly non-existent.” But there is no recent empirical data measuring the infrequency and little exploration of the systemic implications. There is only one published study post- Gault containing quantitative juvenile appellate statistical case data; that study includes information for one state during one calendar year, 1990.

The Supreme Court has issued three landmark decisions “that profoundly alter the status and treatment of children in the justice system” in just six years. Notably, two of the cases arose where children were tried outside of the juvenile court as adults. The ability of the justice system to implement and apply the reasoning supporting those opinions depends, in many ways, on the juvenile appeals process, which is infrequent at best. While there is some consideration in the literature about why there are few appeals, there is little analysis about how the dearth  of appellate process hampers the development of the application of criminal procedural law to juveniles, both procedurally and substantively.

This article focuses specifically on juvenile delinquency appeals. Overall, the discussion examines the effects of the absence of appellate practice on the core appellate court functions: error correction, law-making, and uniformity. It includes recent original data that measures the rate of appeals in fourteen states. It also examines the written appellate opinions available online via Westlaw nationally over a ten year period in order to explore the possible broader effects on the development of the law.

Part I discusses the right to criminal and juvenile appeals and the legal and historical development of this right. It also reviews the limited research and data available about delinquency appeals and discusses factors that contribute to the current dearth of delinquency appellate practice. Part II explores aspects of juvenile practice that distinguish it from criminal cases and characteristics, such as collateral consequences, that are similarly punitive. Part II also examines the absence of appeals as a missed opportunity to address disproportionate minority confinement in the juvenile justice system.

Part III provides empirical data collected from states, revealing the rates of juvenile appeals. Because judicial opinions play a central role in the development of the law, Part IV then analyzes written appellate juvenile delinquency opinions available via Westlaw’s database. It isolates opinions that discuss Fourth and Fifth Amendment challenges and challenges to juvenile dispositions.

Part V examines the role of appeals going forward and suggests that states assess the access of the right to appeal by juveniles. Curtailment of the appellate right puts defendants at risk of erroneous convictions. “Appellate courts, through their decisions of cases and the explanations for their decisions, declare, make, and reshape legal doctrine in common-law, statutory, and constitutional fields.” If that is not happening at this critical phase of the justice system, what is the impact on rights of juveniles, and what is the communal cost? Judicial engagement with questions in criminal justice can deter unlawful police conduct, promote better law enforcement and training, and influence the  integrity of judicial proceedings. It is also the mechanism by which state courts develop rights under individual state constitutions, an area where criminal procedural law has been a “driving force.”

Reactions?  Are there regular appeals of juvenile cases in your jurisdiction?  Why or why not?  Please share your thoughts in the comments.

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About Tamar Birckhead

This entry was posted in Advocacy, Criminal /Juvenile Defense, Delinquency, Juvenile Court, Juveniles, Legal Scholarship, Post-Conviction, Sentencing, State Laws. Bookmark the permalink.

4 Responses to Juvenile Justice on Appeal — article now available via SSRN

  1. Michael Rich says:

    In Massachusetts, juveniles have a right to a jury trial by a six-person jury, similarly to adult defendants in district court criminal matters. Appeals are of record to the Mass. Appeals Court. Luckily, I think, our judges are not elected. But our juvenile court proceedings are private, except when the defendant is transferred to the adult system for processing of major felonies in the superior court system. That eliminates some of the pressure from the public mentioned in your article.

    • tbirckhe says:


      Thanks for your comment. Years ago I began my criminal practice in district court in Massachusetts and had my first jury trials before six-person juries (though this was in adult, not juvenile, court). Massachusetts judges are not elected, which does help, I agree. I tend to think that closed juvenile court proceedings can cut both ways, however, as there isn’t public pressure on the judge to convict/adjudicate delinquent, but there also isn’t any public oversight. Any thoughts on what an ideal juvenile court system would look like?

  2. Josh Tepfer says:

    Great post. The overloaded public defenders who aren’t trained to preserve appellate issues, followed by either no appeal or the forfeiture of the issues on appeal, is even further exacerbated by the lack of a robust collateral pleading statute that applies to adjudicated juveniles in many states, as you posted previously here — http://juvenilejusticeblog.web.unc.edu/2012/07/02/adjudicated-juveniles-and-collateral-relief/ (sorry for the self-promotion). Therefore, even were Joan or another hypothetical juvenile able to belatedly develop evidence of innocence (forensic or otherwise) or other evidence of her counsel’s ineffective assistance, there may not even be a procedural vehicle to bring these claims back to court.

    • tbirckhe says:

      Thanks for connecting this to the issue of collateral relief, Josh. Important point.