Minors who are charged with violating a penal code are typically tried in juvenile proceedings in a juvenile court.[1]  In these proceedings, unlike criminal proceedings, judges do not determine whether minors are guilty of a crime; instead, they determine whether minors are “delinquent.”[2] Under United States Code of Crimes and Criminal Procedure, ‘“juvenile delinquency’ is the violation of the law . . . committed by a person prior to his eighteenth birthday which would have been a crime if committed by an adult or a violation by such a person.”[3]

To focus on rehabilitation of juvenile offenders, federal and state courts created juvenile courts in the late 1800s and early 1900s.[4]  By 1932, all states had a juvenile court system.[5]  These juvenile systems were created to provide juvenile offenders with “treatment, supervision, and control rather than punishment.”[6]  Because the purpose of the juvenile system was to provide juvenile offenders with rehabilitation, rather than retribution, the Supreme Court has labeled juvenile proceedings as “‘civil’ in nature and not criminal.”[7]

Because delinquency hearings are labeled as “civil” rather than criminal, some rights that are guaranteed to adults in criminal proceedings do not extend to youth tried in juvenile court.[8]  When determining which constitutional rights should be incorporated into the juvenile court system, courts consider the Due Process Clause’s guarantee of “fundamental fairness.”[9]

Under this “Fundamental Fairness Test,” the Supreme Court found that the Sixth Amendment’s right to trial by jury does not extend to juvenile courts because “the jury is [not] a necessary component of accurate factfinding.”[10]  In its opinion, the Court assumes that a defendant is “as fairly treated by a judge as he would be by a jury.”[11]  Additionally, the Court found that providing delinquency respondents the right to trial by jury could make juvenile courts more adversarial.[12]  The Court was also worried that providing the right to trial by jury would cause delay in juvenile court proceedings.[13]

However, the Supreme Court’s decisions on juvenile adjudication were made in the 1960s and 1970s, “prior to the explicit movement towards punitive juvenile justice.”[14] Beginning in the late 1970s, juvenile offenders have been committing more serious crimes than they were when the juvenile courts were created.[15] In response, some people believed that juvenile courts were “too lenient” on juvenile offenders.[16] Accordingly, legislatures created policies that were tougher on juvenile crime, making the juvenile court system more punishment-oriented.[17] For example, some juvenile systems now have mandatory minimum sentences and determinate sentences, and many juvenile courts have imposed harsher sentencing practices.[18]  Additionally, some juvenile courts now place serious offenders in adult facilities.[19]

Due to this shift in focus from rehabilitation to retribution, juvenile courts have become more similar to the adult criminal court system.[20] Delinquency charges begin with a petition with “conclusory language” similar to the language in a criminal indictment or information.[21]  Then, like adults awaiting criminal trial, some juvenile respondents are detained while awaiting delinquency hearings.[22] In the adjudication preparation stage, juvenile delinquency respondents negotiate pleas with the government, just like adults in criminal trials.[23] In preliminary hearings, the judges in juvenile courts hear and decide on motions to suppress based on the same evidence rules used in the adult court system.[24] At adjudication, delinquency respondents rely on many of the same common law defenses as adults tried in criminal court.[25] Just like adults in criminal court, minors charged with violating a penal code are entitled to the reasonable doubt standard of proof.[26]  Furthermore, during sentencing, juvenile offenders who are found to be delinquent lose similar liberties as adults convicted of a crime; like adults who are sentenced to prison, juvenile offenders can be placed in juvenile detention centers.[27]

In addition to the way juvenile courts are becoming more similar to criminal courts than civil courts, the Supreme Court relied on assertions that might not hold true when determining that the right to trial by jury does not extend to juvenile respondents.[28] For example, studies on the American jury have shown that judges are more likely than juries to find a conviction in a criminal case.[29]  Because judges often see evidence that would not be admissible to a jury, judges’ decisions to convict sometimes become “misguided.”[30]  The group dynamic of the jury increases the likelihood that facts will be found correctly.[31] Additionally, jury trials also provide defendants with an advantage in appellate review.[32]  “In jury trials, judges must articulate the law” and instruct the jury.[33]  In bench trials, judges do not need to instruct a jury, so judges do not always articulate the law as clearly.[34] As a result, prejudicial errors of law are oftentimes more difficult to prove on appeal in bench trials because there is not always the clear articulation of law that occurs in jury trials.[35]

Although the right to trial by jury could help to provide delinquency respondents a fair proceeding in juvenile courts, which now function like criminal courts, the right to trial by jury could create an administrative burden.[36] Studies in the 1990s show that in states that provide minors with the right to trial by jury, only one percent or less of juvenile respondents have requested a jury trial.[37] However, more recent data suggest that the number of juvenile respondents that ask for a jury trial may have increased.  In particular, when Kansas provided juvenile respondents the right to trial by jury in 2009, dozens of minors requested jury trials within the first three months of gaining this right; juvenile courts expected to have up to 100 jury trials per year.[38]  Felony jury trials tend to take two to four days while bench trials tend to take only one.[39] The lengthier time in jury trials creates higher costs for the government, the courts, and the juvenile respondents.[40]

When determining whether to apprise delinquency respondents the right to trial by jury, federal and state governments should weigh the safeguards that this right would provide against the potential administrative burden. The focus of juvenile courts has shifted from rehabilitation to retribution, and juvenile delinquency proceedings have become more similar to criminal trials. Youth who are found to be delinquent now suffer harsher sentences than were intended when the juvenile courts were created. Providing minors with the right to trial by jury would create fairer proceedings. Therefore, if juvenile courts continue to treat juvenile delinquency respondents like adults in criminal trials, federal and state governments should consider providing youth with the procedural safeguard of the right to trial by jury.


* Alexis Mayer, J.D., expected May 2021, The George Washington University Law School; B.S., Mathematics, 2018, Virginia Tech. I would like to thank the 2019 – 2020 Executive Board of the Criminal Law Society, especially Madison Meyer and Adison Marshall, for creating this publication for Criminal Law. I am also immensely grateful for my undergraduate professors, Dr. Brandy Faulkner and Dr. Joyce Arditti, for fueling my interest in juvenile defense.

[1] McKeiver v. Pennsylvania, 403 U.S. 528, 541–42 (1971).

[2] Barry C. Feld, The Constitutional Tension between Apprendi and McKeiver: Sentence Enhancements Based on Delinquency Convictions and the Quality of Justice in Juvenile Courts, 38 Wake Forest L. Rev. 1111, 1138 (2003).

[3] Juvenile Delinquency, 18 U.S.C. § 5031 (2012).

[4] Martin R. Gardner, Punitive Juvenile Justice and Public Trials by Jury: Sixth Amendment Applications in a Post-McKeiver World, 91 Neb. L. Rev. 1, 7 (2012).

[5] Korine L. Larsen, With Liberty and Juvenile Justice for All: Extending the Right to a Jury Trial to the Juvenile Courts, 20 Wm. Mitchell L. Rev. 835, 845 (1994).

[6] Feld, supra note 2, at 1138.

[7] Kent v. United States, 383 U.S. 541, 555 (1966).

[8] McKeiver v. Pennsylvania, 403 U.S. 528, 541–42 (1971).

[9] In re Gault, 387 U.S. 1, 19 (1967).

[10] McKeiver, 403 U.S. at 543.

[11] Id.

[12] Id. at 545.

[13] Id. at 550.

[14] Gardner, supra note 4, at 33.

[15] Id. at 23.

[16] Id.

[17] Id.; Larsen, supra note 5, at 845.

[18] Gardner, supra note 4, at 23; Julianne P. Sheffer, Note, Serious and Habitual Juvenile Offender Statutes: Reconciling Punishment and Rehabilitation Within the Juvenile Justice System, 48 Vand. L. Rev. 479, 484–86 (1995).

[19] Sheffer, supra note 18, at 491–92.

[20] Larsen, supra note 5, at 845–46.

[21] McKeiver v. Pennsylvania, 403 U.S. 528, 541 (1971).

[22] McKeiver, 403 U.S. at 541–42; Andrew Treaster, Note, Juveniles in Kansas Have A Constitutional Right to a Jury Trial. Now What? Making Sense of In re L.M., 57 U. Kan. L. Rev. 1275, 1279 (2009).

[23] McKeiver, 403 U.S. at 541.

[24] Id.

[25] Id.

[26] In re Winship, 397 U.S. 358, 368 (1970); Gardner, supra note 4, at 29.

[27] McKeiver, 403 U.S. at 541; Treaster, supra note 22, at 1286.

[28] Cf. Gardner, supra note 4, at 40–42 (arguing that juries would be advantageous to juvenile respondents).

[29] Martin Guggenheim & Randy Hertz, Reflections on Judges, Juries, and Justice: Ensuring the Fairness of Juvenile Delinquency Trials, 33 Wake Forest L. Rev. 553, 562–63 (1998).

[30] Id.

[31] Gardner, supra note 4, at 42.

[32] Id. at 40–41.

[33] Id.

[34] Id.

[35] Id.

[36] See Treaster, supra note 22, at 1293.

[37] Larsen, supra note 5, at 873.

[38] Treaster, supra note 22, at 1293.

[39] Id.

[40] Id. at 1293–94.