PREVENTIVE DETENTION OF JUVENILES - A CONSTITUTIONAL PERSPECTIVE

• NCJ Number: 57441
• Journal: PRISON LAW MONITOR Volume: 1 Issue: 7 Dated: (JANUARY 1979) Pages: 157,168-173
• Author(s): M LEVICK; A PALAMARCHUK
• Date Published: 1979
• Length: 7 pages
• Corporate Author: Institution Educational Services, Inc
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

PREVENTIVE DETENTION OF CHILDREN NOT ONLY VIOLATES CONSTITUTIONAL RIGHTS, IT ALSO CONTRIBUTES TO FURTHER DELINQUENT CONDUCT.

Abstract

THE PRACTICE OF PREVENTIVE DETENTION OF CHILDREN WHICH BEGAN IN 1899 AS AN ATTEMPT TO PROVIDE A PROTECTIVE AND REHABILITATIVE FUNCTION FOR JUVENILE OFFENDERS RAISES SOME CONSTITUTIONAL QUESTIONS. THE FUNDAMENTAL RIGHTS TO LIBERTY, AND DUE PROCESS ARE VIOLATED IN ORDER TO 'HELP' THE CHILD. THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT GUARANTEES THE RIGHT OF THE INDIVIDUAL TO THE UNHAMPERED PREPARATION OF A DEFENSE. THE JUVENILE JUSTICE SYSTEM MAKES PRETRIAL RELEASE PROCEDURES DIFFICULT TO ESTABLISH FOR JUVENILES, THOUGH SUCH PROCEDURES ARE AN UNCONTROVERTED RIGHT GRANTED TO ADULTS. THE JUVENILE SYSTEM, LACKING PROCEDURAL PARAMETERS HAS QUICKLY SUCCUMBED TO ARBITRARINESS AND OFTEN THE REHABILITATIVE FUNCTION IT WAS INTENDED TO PERFORM IS COMPLETELY LACKING. THE FAILURES OF THE SYSTEM TO PERFORM THIS FUNCTION ARE BECOMING APPARENT. THE GAULT CASE WHICH BROUGHT BEFORE THE COURT ISSUES OF RIGHT OF COUNSEL, NOTICE OF CHARGES, CONFRONTATION OF WITNESSES AND PRIVILEGE AGAINST SELF-INCRIMINATION. AS A RESULT, THE COURT DETERMINED THAT THE LIBERTY INTEREST AT STAKE REQUIRED THE INSTITUTION OF SAFEGUARDS INTO THE JUVENILE JUSTICE SYSTEM. THE SECOND ISSUE, THE EQUAL PROTECTION CLAUSE, MEANS THAT THE LAW MUST BE APPLIED EQUALLY TO ALL PEOPLE, A MEASURE WHICH IS CLEARLY VIOLATED BY THE JUVENILE SYSTEM'S PREVENTIVE DETENTION RULE. THIRD, THE RIGHT TO RELEASE ON BAIL IS DENIED TO CHILDREN. THIS PROCEDURE HAS ALWAYS BEEN CONSIDERED PARAMOUNT IN THE CRIMINAL JUSTICE SYSTEM BECAUSE IT UNDERSCORES THE PRESUMPTION OF INNOCENCE. THE PRACTICE OF PREVENTIVE DETENTION OF JUVENILES VIOLATES THE CONSITUTIONAL GUARANTEES OF FAIRNESS AND DUE PROCESS. IT IS HOPED THAT JUVENILE/ADVOCATES WILL USE THESE ARGUMENTS TO INITIATE BOTH JUDICIAL AND LEGISLATIVE REFORM OF THE JUVENILE SYSTEM. FOOTNOTES ARE INCLUDED. (STB)