The juvenile justice system has improved from a paternalistic system with little regard for the Consitutional rights of the children, but, writes journalist Kathleen Cullinan, the children could benefit from opening juvenile courts to public scrutiny. -DB

The News Media & The Law
Commentary
Summer 2009
By Kathleen Cullinan

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.

Copyright 2009 Reporters Committee for Freedom of the Press