Juvenile Justice and Openness

From the Summer 2009 issue of The News Media & The Law, page 4.

Compared with the rest of the American judicial system, juvenile courts operate under water, beneath varying layers of secrecy. It is that way largely because it always has been. Or so the story goes.

Courts across the country have repeatedly declined to find a First Amendment-based right of public access to the juvenile system. Following the Supreme Court's rationale that such a right exists where both "experience and logic" (see sidebar) favor openness, judges have found that tradition wants children's matters adjudicated behind closed doors. Just as simply as they have dismissed the history question, many have dismissed the logic of access: "The interests of the juvenile," the Rhode Island Supreme Court wrote in a 1982 access case, "are most often best served by anonymity and confidentiality."

Broadly put, a delinquency proceeding is not considered a criminal prosecution, but a hybrid beast bearing features of both the civil and criminal systems. So judges have been free to reject the firm body of law that generally holds open courtroom doors in criminal trials. But much of our perspective has changed in the last 25 years.

The Supreme Court in 1967 likened the juvenile delinquency system, even with its 19th-century rhetoric of care, informality and rehabilitation, to a "kangaroo court," in which children were illegally denied a host of due process rights. Justice Abe Fortas wrote that year in In Re Gault: "So wide a gulf between the State's treatment of the adult and of the child requires a bridge sturdier than mere verbiage, and reasons more persuasive than cliché can provide."

To be sure, the road since then has not led straight toward a declaration that the juvenile system is effectively criminal, entitling children to the full panoply of constitutional rights. For instance, the Supreme Court in 1971 declined to provide jury trials to child suspects. And the dependency side of juvenile courts — where abuse and neglect issues are handled — varies greatly among the states in terms of transparency. But it generally remains even more impervious to public oversight than delinquency cases.

Still, many in the field agree that the overall trend points away from the shuttered courtroom with the all-powerful, paternalistic judge. Accordingly, lower courts and state lawmakers have, in the last two decades, cracked open the juvenile system.

In many ways, the system is returning to its true roots: When the first American juvenile courts came to order in 1899 in Chicago, they were open to the public and the press. Things stayed that way for years.

It is no longer true, if it ever was, that the "history prong" justifies a closed system. Moreover, with this new "experience" in openness, a far stronger argument could be made that children deserve an institution with true public oversight.

In short, the case for juvenile court access has grown up.

A very public debut

The juvenile justice system was the creation of 19th-century reformers who saw, in the plight of neglected and delinquent urban children, a moral obligation for the state. According to the 2002 reference text A Century of Juvenile Justice, they foresaw a cloistered setting in which a wise judge would rule almost as a parent. Juvenile proceedings themselves would be informal, with the focus not on what the child had done, or been through, but on finding him a better path.

The Illinois General Assembly signed on to that rehabilitative ideal in 1899. But it refused to grant the reformers their wish to protect children from lasting stigma by cloaking the system in secrecy.

The resistance itself was rooted in experience, according to the reference text: Unwanted or delinquent children in the 19th century had routinely been placed in asylums or on orphan trains, headed west to be put up for adoption. As the General Assembly built the new court system, a local newspaper tapped into deep public fears with a "sensational front-page story with the lead 'Child Slaves,'" University of Nevada, Las Vegas, professor David Tanenhaus wrote in a chapter of the text.

A closed court was frighteningly reminiscent of the 17th-century British Star Chambers and anathema to the American tradition. Tanenhaus, who studies the history of the juvenile justice system, said the concern was that closed courts would capture children in the grasp of government and organizations that would sell them away — or, worse, place them with institutions backed by differing religions. "Politically, it's kind of an explosive issue," he said in an interview.

So for much of the first two decades, the juvenile systems in Chicago and elsewhere operated in public. Reporters identified children in print, or withheld names voluntarily. Generally, proponents of the fledgling juvenile courts made use of the publicity, Tanenhaus said. "The very savvy judges worked with the press to educate the public on what these courts were going to do, why they were a good thing."

Ironically, as the system caught on, the public bought into the idea that the relationship between the judge and the child should be like that of a doctor and a patient: marked by confidentiality. So by the 1920s, state laws effectively shut the public out of the juvenile courts.

When the Supreme Court started peeling back the layers of secrecy 40 years later in Gault, it found the original model of kindness and rehabilitation badly tarnished. Gerald Gault was a 15-year-old Arizona boy who was to be committed to a state facility until his 21st birthday over prank phone calls. Under state law, he had no right to counsel, no right to confront witnesses and no right to appeal.

Examining the facts of the case, Fortas wrote: "Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure."

Around the same time, according to Tanenhaus, a series of government-funded studies revealed deep flaws in the juvenile courts, including sub-par judges and harsh punishments for children. "It's not the progressive ideal of this judge who understands child psychology and understands the law. Instead you have people doing this work who aren't particularly skilled," he said. "It's hard in the 1960s to make the argument that this is benevolent."

Gradually, elements of due process were introduced to juvenile courts. As for secrecy, the Supreme Court in Gault questioned whether juvenile cases really were all that confidential, when the FBI and the military regularly received court records from the states. But the Court did not find that the right to a public trial ought to extend to children. And it has never decided whether the public has a First Amendment-based right to access juvenile court.

So the states and courts have been left to improvise the introduction of transparency.

Carving out a public space anew

Against the backdrop of a much-publicized, if not firmly proven, teenage crime wave in the late 1980s and early 1990s, legislatures around the country decided they'd had enough of the kinder, gentler juvenile justice system. Without altogether abandoning the model, they shifted into tougher rhetoric, made it easier for children to be tried as adults and instituted harsher punishments.

According to Melissa Sickmund, chief of systems research at the primarily government-funded National Center for Juvenile Justice, it's hard to say how much juvenile crime contributed to that particular spike. It's impossible to know from a robbery report alone how old the perpetrator was, she said, and arrest data can only approximate the actual extent of juvenile involvement in a crime wave.

Instead she sees a variety of explanations in the early-1990s spike in crime attributed to juveniles, and in the general decline since then, from shifts in the drug culture to policy changes that landed more kids behind bars. But the storyline and a string of children arrested in high-profile crimes were enough to prompt systemic change, which partly came in the form of transparency.

In recent years around the country, mandatory and presumptive closure rules have given way to policies granting the public access to serious juvenile crime cases. In Florida, the public is presumptively entitled to attend hearings and access records in cases where children are charged with transgressions that would be felonies, or with repeated misdemeanor offenses. In other states, anyone can attend hearings held to decide whether juveniles should be transferred to the adult criminal system.

Even in the sweepingly closed District of Columbia juvenile system, where the various government agencies have difficulty extracting information from each other, a judge has the discretion to admit people deemed to have a legitimate interest in the case.

In the federal system, the U.S. Court of Appeals in Boston (1st Cir.) held in 1995 that the Juvenile Delinquency Act, originally passed in 1938 to remove minor suspects from the federal adult criminal system, could not be read to mandate closure. Congress did not intend to deny judges the discretion to open or close their courtrooms, the First Circuit found, when it built in restrictions on who can receive juvenile court records and a ban on the release of a child's photo.

Reporter Jack Kresnak took over the juvenile justice beat for the Detroit Free Press soon after Michigan's 1988 shift from a presumption of closure to a presumption of openness in juvenile court. He stuck with it for 20 years, providing readers with extensive and deep coverage of both child delinquency and dependency cases.

Kresnak, who left the Free Press and took over as chief executive officer of a children's advocacy group in 2008, says he came to believe newspapers must carefully consider the decision to print the name of a child involved in a court case. The stigma effect, which has buttressed the rationale for closing the juvenile system for decades, can be real, he said.

But Kresnak is adamant that both sides of the juvenile court system — delinquency and dependency — must be open to the public.

"Confidentiality has killed children over and over again," Kresnak said, arguing that systemic failures hidden from the public can have dire consequences for kids. In fact, more than protecting children, Kresnak sees in a state's preference for closed doors the consummate bureaucratic concern: "Protecting their own hides, protecting their own budgets and not fully disclosing to the public mistakes that happen."

By now, Kresnak said, transparency is a generally accepted feature of Michigan's juvenile court system. Judges were great sources, he said, pointing him toward cases that might benefit from the public spotlight.

Kresnak was dismissive of the state's old policy of presuming closure but allowing judges to admit people with a specified interest in a case. In practice, he said, that meant closure. A reporter who tried for access might face objections from the state, and would almost never get access to the dependency cases or court records.

Worse, the very judge in charge of hearing the request could be "doing something he or she shouldn't," Kresnak said. "I really believe children are better off when there's a presumption that a reporter can come in and check it out" anytime court is in session.

Even so, many jurisdictions have made judicial discretion their lone nod to transparency.

Robert Schwartz, executive director of the Juvenile Law Center in Pennsylvania, said states are searching for the best way to "build in transparency so that juvenile courts are accountable in the ways other courts are, without having kids or parents hurt in the process." In the District of Columbia, for instance, the Council for Court Excellence published 13,500 copies of a navigational guide for parents and the public this year after finding that widespread confusion about how juvenile justice works was a chief flaw in the system.

According to assistant director Priscilla Skillman, the council did not address whether greater transparency overall is due, though it is "certainly an issue which bears looking at." For now, she said, "It just seemed to us it was a system that needed some sunlight so people could understand the theory behind it, the law behind it."

Schwartz, Sickmund and Kresnak all see some mixed results in the record of the last 20 years of increased press access to the juvenile system. While Kresnak worries that the Internet will make it nearly impossible for kids whose names surface in the press to escape their childhood infractions, amplifying concern over the stigma effect, Schwartz faults the resource-strapped news media for not taking advantage when the courts were opened: "For me the real story is that when that happened the press didn't care," he said. "Nobody showed up."

Yet even with all of these shortcomings and perceived moral obligations on the part of the media, the dominant feeling among advocates of the system, they said, is that transparency is healthy for the juvenile courts — pointing to a strengthened "logic prong" in the two-part constitutional test for court access.

"If the public really knew, they would be appalled," Sickmund said, "not at the behavior of the kids, but at the behavior of the system."

Piecing together a new constitutional case

On the surface, the case for a constitutional right of access to juvenile delinquency court may seem bleak. With the "experience prong" of the constitutional test so easily written off for so long, media lawyers have been stuck arguing for the logic of access. That's been a tough case to make in the context of a nearly extra-judicial court system.

But in the last two decades, courts have looked to Supreme Court decisions outlining access to criminal cases in deciding similar questions at the juvenile justice level. Rarely has a court affirmatively asserted that no First Amendment-based right of access exists; the Supreme Court has never done so.

In the 1995 case Three Juveniles v. Globe Newspaper, for instance, the U.S. Court of Appeals in Boston (1st Cir.) found no need to weigh the question of a First Amendment-based right of access to the juvenile court system. The panel didn't outright reject the idea, calling it unclear if "highly dubious" considering the history and presumed purposes of closure. The judges nonetheless looked to the case law spelling out the constitutional right of access to criminal courts and found "very instructive" the Supreme Court's seminal decision in Globe Newspaper v. Superior Court, striking down a mandatory closure rule.

The panel ultimately decided Three Juveniles on statutory grounds but noted: "While the Globe case is not directly applicable here, the Court's reasoning in that case strongly suggests that [the lower court's reading of a mandatory closure rule] raises some serious First Amendment concerns.

The First Circuit's dance around the constitutional question, and ultimate construction of an opinion rooted in statute granting some possibility of access, is similar to the way many appellate courts have handled juvenile court access questions since the 1980s: Where a statutory basis for judicial discretion or a presumption of openness is found, they have employed a balancing test that weighs the public interest in the proceedings against the child's interest in confidentiality.

And that in itself could point to framework for a new constitutional case for access.

For instance, a federal judge in the Northern District of Iowa, presiding over the 2006 case of a teenager charged with heroin distribution resulting in death, weighed a need to avoid embarrassing the boy and obtain evidence about "delicate matters" against the "public's right to know about and attend the proceedings." Ultimately, redacted copies of the case records were held to be open, while the boy's transfer hearing was closed.

In the Columbus Dispatch's 2000 appeal to the Ohio Supreme Court for access to a kidnapping case, there was neither a presumption of openness nor of closure. Rather, the juvenile court could close a delinquency hearing only after explicitly finding a "reasonable and substantial basis" to believe the child or the proceeding would be harmed by public access; that harm would outweigh the benefits of public access; and there were "no reasonable alternatives to closure." So a balancing process, with clearly articulated findings of fact, became the hurdle for closure.

As for the Dispatch's request, the Ohio court found, the judge was wrong to decide "in an informal, off-the-record procedure" that the press would be barred not only from the courtroom, but from the entire courthouse. The fact that informality would be so flatly rejected underscores how much the juvenile system has evolved from its 1920s model.

Not every appellate court has come down in favor of transparency, even with the general trend toward openness. The Vermont Supreme Court declared in 1981 that no constitutional right of access exists in the juvenile context. Fourteen years later, the South Dakota Supreme Court found that, since lawmakers there had actually dismantled a presumption of access to juvenile cases in favor of closure, the burden fell on the Argus Leader to prove it had compelling reasons to attend a child's delinquency hearings.

But the transparency trend has been steadily growing for years.

Certainly, all the arguments the Supreme Court has considered in finding a First Amendment-based right of access to the judicial system carry the same weight when the fates of children are at stake. As the courts have increasingly acknowledged since the Supreme Court pointed it out in Gault, to pretend that placing a child in custody is not punishment is to deny reality. After describing the harsh conditions in which Gerald Gault was to be sent to serve his sentence, Fortas wrote:

In view of this, it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase "due process." Under our Constitution, the condition of being a boy does not justify a kangaroo court. . . . The essential difference between Gerald's case and a normal criminal case is that safeguards available to adults were discarded in Gerald's case.

Plainly put, the juvenile justice system is in every meaningful sense criminal.

So, then, it is a matter of showing that access to the juvenile system meets the experience and logic test the Supreme Court delineated in the 1986 case Press-Enterprise Co. v. Superior Court.

The juvenile justice system has not been around for centuries, as our adult criminal courts have. But through much of its first 20 years and the last 20 years, many parts of it have operated in the public eye. Contrary to conventional wisdom, there is no long, unabated tradition of closure. A substantial case is waiting to be made that this nation has a rich "experience" of open juvenile justice.

And according to people like Kresnak and Schwartz who have invested their careers in observing and improving the juvenile justice system, that experience has been positive.

The juvenile court has been forced to shed elements of its original model in the face of what a mammoth, state-operated, frequently under-funded and over-burdened justice system can reasonably accomplish. First Amendment jurisprudence has held that good faith behind closed doors is too much to ask of government; that is no less true when a child's interest hangs in the balance. Secrecy, it could be argued, should be similarly shed from the system.

It is true, however, that courts, psychologists and social scientists continue to recognize children as fundamentally unlike adults, with needs and capabilities that differ in many key ways. The law throughout the country still sees a heightened state interest in protection and rehabilitation for children. Any argument for First Amendment-based access to a delinquency case would have to accommodate that interest, most likely in the form of an easier path to close juvenile courtrooms than has been devised for the criminal context.

But the Supreme Court's rationale for opening the courts applies just as well in both contexts. And with the country's evolving experience in crafting a functional justice system that protects both children and the public at large, the pieces of a case for constitutional access to the juvenile courtroom are ready to be used.