State v. Schaaf , 109 Wash. 2d 1 ( 1987 )

Goodloe, J.

(dissenting) — An important issue, whether juvenile offenders are entitled to a jury trial, is once again before this court. And once again, a majority of this court concludes that no right to trial by jury attaches in juvenile criminal proceedings. I find this conclusion impossible to accept. An open-minded comparison indicates that juvenile proceedings have become akin to adult criminal proceedings; the Legislature and the courts of this State have so far departed from a "rehabilitative" model of juvenile justice as to render any differences from adult criminal justice too minor to justify the withholding of the right to a jury trial. Therefore, I must dissent.

To begin, I turn to Justice Hugh Rosellini's insightful dissent in State v. Lawley, 91 Wn.2d 654, 591 P.2d 772 (1979), in which the same issue was addressed. I will not restate all of Justice Rosellini's arguments, except to quote as follows:

In these [Basic Juvenile Court Act] provisions the legislature has made it clear that it is no longer the primary aim of the juvenile justice system to attend to the welfare of the offending child, but rather to render him accountable for his acts, to punish him, and to serve society's demand for retribution. While the punishment prescribed may well be less than that imposed upon offending adults for the same offense, it nevertheless involves in the case of the respondent a loss of liberty. No longer is the child protected from the public's scrutiny of his "criminal" record (RCW 13.04.270(l)(a)). Furthermore, juvenile court hearings concerning offenses are made presumptively public (RCW 13.40.140(6)).

No longer is the punishment geared to fit the needs of the child, rather it is related to the seriousness of the offense. Provision is made for consecutive sentences (RCW 13.40.180) and even community service is intended as punishment (RCW 13.40.020(2)). Thus, the system has been converted from one which was or ostensibly was designed to protect and rehabilitate the child to one which is designed to protect society. The present act focuses upon the purposes which are generally served by adult criminal law.

Lawley, at 662 (Rosellini, J., dissenting). Justice Rosellini concluded that the court should hold RCW 13.04.021(2), which provides that juvenile court cases shall be tried without a jury, unconstitutional because it denies the juvenile a right which the people have declared belongs to every accused. Lawley, at 667 (Rosellini, J., dissenting). Subsequent developments in the law persuade me that the majority errs in continuing to conclude that juveniles are not entitled to a jury trial.

Const. art. 1, §§ 21 and 22 provide:

The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.

In criminal prosecutions the accused shall have the right ... to have a speedy public trial by an impartial jury of the county in which the offense is charged . . .

(Italics mine.) In Pasco v. Mace, 98 Wn.2d 87, 97, 653 P.2d 618 (1982), we held that our state constitutional right to trial by jury was more extensive than "that which was protected by the federal constitution when it was adopted in 1789." Pasco, at 99. We should not renege on this holding in the present case.

Pasco involved the right to a jury trial in the municipal courts. A unanimous court stated:

From the earliest history of this state, the right of trial by jury has been treasured, and this right has been protected even in courts of limited jurisdiction. . . . It is our conclusion that, under the concept embodied in the constitution of Washington, enacted as it was in light of the laws of the territory existing at that time, no offense can be deemed so petty as to warrant denying a jury if it constitutes a crime.

Pasco, at 99. The court concluded:

As for those offenses which carry a criminal stigma and particularly those for which a possible term of imprisonment is prescribed, the constitution requires that a jury trial be afforded unless waived.

(Footnote omitted. Italics mine.) Pasco, at 100.

At present, juvenile offenses often carry a criminal stigma. The import of three recent decisions is that in necessary situations juvenile offenses will be held to constitute crimes. In In re Erickson, 24 Wn. App. 808, 810, 604 P.2d 513 (1979), review denied, 93 Wn.2d 1017 (1980), the court held that given the similarities between the juvenile and the adult criminal justice systems, a juvenile disposition order requiring payment of restitution and 50 hours of community service work "did constitute 'punishment for crime' sufficient to fall within the constitutional exception to involuntary servitude." See RCW 13.40.190; see also Laws of 1983, ch. 191, § 9; Laws of 1977, 1st Ex. Sess., ch. 291, § 73. In State v. Bird, 95 Wn.2d 83, 88-89, 622 P.2d 1262 (1980), we ruled that the adult suspended sentence statute (RCW 9.92.060) applied to juveniles under the Juvenile Justice Act of 1977 (JJA). We reasoned that "[jjuvenile offenses have been treated as analogous to crimes in certain situations". Bird, at 88.

Finally, in State v. Q.D., 102 Wn.2d 19, 685 P.2d 557 (1984), we held that the infancy defense applied to juvenile adjudications. We stated:

The juvenile justice system in recent years has evolved from parens patriae scheme to one more akin to adult criminal proceedings. The United States Supreme Court has been critical of the parens patriae scheme as failing to provide safeguards due an adult criminal defendant, while subjecting the juvenile defendant to similar stigma, and possible loss of liberty. See In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1966); In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1977). This court has acknowledged Washington's departure from a strictly parens patriae scheme to a more criminal one, involving both rehabilitation and punishment. In re Smiley, 96 Wn.2d 950, 640 P.2d 7 (1982). Being a criminal defense, RCW 9A.04.050 should be available to juvenile proceedings that are criminal in nature.

Q.D., at 23. These post-Lawley decisions indicate that juvenile offenses are analogous to crimes. Since they are treated as crimes, the constitutional right to a jury trial should be provided in juvenile criminal proceedings.

Moreover, the very real possibility now exists that a juvenile may serve a term of imprisonment following a conviction for a juvenile offense. Cf. Lawley, at 657 ("Commitment of a juvenile to an institution is still limited to juvenile facilities"). Pursuant to a statute passed in 1983, RCW 13.40.280, in certain situations a juvenile may be transferred to the Department of Corrections under the JJA. See Laws of 1983, ch. 191, § 22. This statute does not pertain to the juvenile tried as an adult. Therefore, under the juvenile "justice" system a juvenile offender may find himself or herself placed in adult incarceration without ever having been afforded the right to a jury trial. See Pasco, at 100. The bypass of a fundamental constitutional right in this manner is egregious and should not be condoned.

I do not find the arguments set forth by the majority convincing. The majority argues that a juvenile offense is not a "crime" and, therefore, a juvenile cannot be convicted of a "felony". Majority opinion, at 8. Nevertheless, juvenile offenses are often treated as crimes. Moreover, the majority acknowledges that a prior juvenile conviction, if the juvenile offense was a felony, is included in an adult defendant's criminal history under the Sentencing Reform Act of 1981 (SRA). Majority opinion, at 11; see RCW 9.94A-.030(8) (b), .360. These SRA statutes clearly express the Legislature's intent that juvenile offenses may be treated as felonies. Indeed, former RCW 9.94A.360(1) speaks of "juvenile felony convictions".

The majority also argues that juvenile proceedings are unlike adult criminal proceedings because of the former's greater flexibility and informality. Majority opinion, at 12. However, the distinctions offered by the majority fail to withstand scrutiny. For example, as in juvenile disposition hearings, mitigating factors may likewise be considered in adult sentencing under the SRA. See RCW 9.94A.120(2), .390. Additionally, just as pretrial diversion agreements are possible in lieu of juvenile prosecution, similar alternatives to prosecution are available in adult cases. See, e.g., RCW 10.05 (deferred prosecution in courts of limited jurisdiction). Of particular interest is that RCW 10.05 provides for deferred prosecution based on participation in an appropriate treatment plan. This obviously evinces a rehabilitative aspect to the adult criminal justice system despite the majority's bald assertion to the contrary. See majority opinion, at 10; see also RCW 9.94A.010(5). Nevertheless, the paramount goal of both systems is punishment.

Under the present juvenile justice system, juvenile offenders are held "accountable for their offenses". RCW 13.40-.010(2). The goal of the JJA is to "[p]rotect the citizenry from criminal behavior" and "[p]rovide for punishment commensurate with the age, crime, and criminal history of the juvenile offender". (Italics mine.) RCW 13.40.010(2)(a), (d). Restitution to the victims of crime may be required of the juvenile offender. RCW 13.40.010(2) (h); State v. Bush, 34 Wn. App. 121, 124, 659 P.2d 1127 (1983). A juvenile offender is subject to the crime victims compensation act, see RCW 7.68.035(7), and thus are subject to "penalty assessments". State v. Sargent, 36 Wn. App. 463, 674 P.2d 1268 (1984). Moreover, a juvenile offender potentially is subject to adult criminal prosecution because his or her criminal history can be used to catapult the juvenile into the adult criminal system. State v. Holland, 98 Wn.2d 507, 656 P.2d 1056 (1983); see RCW 13.40.020(10), .110. Regarding this last point, the majority posits that "a decision to waive juvenile court jurisdiction is not made lightly". Majority opinion, at 11. Nonetheless, there is no doubt that the juvenile offender under the JJA faces the possible loss of his or her liberty. I find the system described above akin to the adult criminal justice system.

The reality of the JJA is that rehabilitation no longer remains a substantial goal of the juvenile criminal justice system. This is more than demonstrated by written guidelines set forth by the Washington State Juvenile Disposition Standards Commission, which was established by the Legislature in 1981. See Laws of 1981, ch. 299, § 4. RCW 13.40.027(1)(c) provides: "It is the responsibility of the commission to: . . . develop and propose to the legislature modifications of the disposition standards in accordance with RCW 13.40.030." The Commission produced the Washington State Juvenile Disposition Standards Philosophy and Guide (July 1984) (Guide). The Guide, at pages 9-10, provides:

Youths found guilty of offenses should be held accountable for their illegal behavior by complying with court ordered sanctions. The more serious the youth's offense, the greater the sanction the youth should receive.

. . . Sanctions should not be based upon the youth's race, sex, economic status, or treatment needs.

(Italics mine.) The Commission concludes:

Punishment, under the guise of rehabilitation, is unjust and will be perceived as such by the youth. A sentence that is geared to the treatment needs of the youth, undercuts the significance of the crime committed. The need for treatment services should not influence the severity of the youth's sentence or sanctions.

(Italics mine.) Guide, at 15.

The primary goal of the present juvenile justice system in this State is no longer rehabilitation, but rather condemnation, punishment, and deterrence. Where the State has embraced these goals for its juvenile justice system, the right to trial by jury must also be provided. McKeiver v. Pennsylvania, 403 U.S. 528, 553, 29 L. Ed. 2d 647, 91 S. Ct. 1976 (1971) (White, J., concurring).

I am at a loss to explain the majority's decision except to postulate that it reflects the view that affording juvenile offenders their constitutional right to a jury trial would have tremendous adverse consequences for the juvenile justice system. This concern, however, cannot justify the failure to meet our obligation to see that juveniles are accorded their full rights under the law — an obligation which I believe the majority utterly fails to meet. Therefore, I dissent.

Reconsideration denied December 3, 1987.