When a young person is sent to a detention facility away from his or her family, it is a drastic intervention and most would agree that our system of justice should approach it with great care. Even if the child is not removed from the community and sent to live in juvenile detention, a delinquency case can now follow the child throughout her life in an increasing number of ways, such as DNA registration, housing access, and sentencing enhancements, and sex offender registration. As a result, on paper, our system of justice purports to provide this child with most of the same procedural checks that we provide to adults and sometimes, in theory, even more. But in reality, our system falls short. Too often, this entire process is left to one overburdened judge with no jury, little public access, sometimes no defender, and, as it turns out, little appellate oversight.
In order to inform the discussion about justice and accuracy in the juvenile system, I recently conducted a study by surveying states to determine the appellate rate in juvenile delinquency cases. While commentators agree that appeals are rare for juveniles, the extent of the defect was somewhat unknown. Nearly all of the states responded to the survey and though many do not track delinquency appeals, fourteen states were able to provide information for the survey. The results are startling: Only 1 in 200 cases where a youth is found delinquent will ever be appealed. Even in Florida which had the highest appellate rate for juveniles in the study, only two percent of the juvenile delinquency cases included appeals. Without Florida, the state average drops to less than one appeal for every 300 cases. This means that only one set of eyes, those of a judge—who in most instances has a docket larger than most of us would like to consider—will ever determine the accuracy or consider the weight of the evidence and other critical issues in a case.
To put this in perspective, consider the results from Texas. Texas has the second highest number of children living in detention each year: according to U.S. Census data, there are 8,247 youth in confinement in the state. This study found that on average each year, 20,000 children were found delinquent in Texas; yet, only 52 of those cases were reviewed by anyone other than the trial court in a given year. In New Jersey, over 25,000 children were found delinquent each year and only 43 cases were ever reviewed by another judge on appeal. With these results, how confident are we that these youth received justice and that their cases were free of error?
What kinds of errors are we talking about? This can be any number of legal and factual issues, including germane pre-trial questions that will comprise the evidence in the case. For example, was a confession actually voluntary or was a young person subjected to coercion, risking a false confession? We know that young people are more vulnerable in this setting and many wrongful convictions of young people include false confessions. It could also include the validity of identification procedures, just as it would when a person is tried as an adult. And what about the validity of a plea or of a child’s waiver of other constitutional rights, such as the right to an attorney? When young people waive rights, there are serious constitutional questions about whether they did it voluntarily.
There are other important questions that are developed when young people have more access to file appeals in their cases. For example, the way that age influences the ability of a young person to knowingly waive her Miranda rights is developed through appeals. The Supreme Court has also said that courts must consider age–among many other factors–to determine whether a confession or an accused person’s consent to a search by police is voluntary. Lower courts dealing with juvenile cases each day look to appellate rulings to decide how the age of a child should and does matter in these common settings. Appellate rulings also provide guidance to police officers as they are called upon to make quick decisions, as well as set policies to train officers when they interact with young people. In the confession setting, unfortunately, the courts have charted a course where age has typically “mattered” very little, despite the science and common sense that it does. And there is little case law addressing questions about young people consenting to searches, which means there is little guidance for law enforcement and courts.
Many commentators and attorneys who work with young people are hopeful that recent Supreme Court cases analyzing the role of age in criminal justice matters will create a shift such that age will be considered in a more meaningful way. When and how that will happen depends very much on the ability of lower courts to hash out and develop these issues–case by case, day by day, child by child. Too often, states do not provide enough resources so that the representation of a young person will be adequate and include appeals or young people are pressured to waive the right to an attorney in the first place. Both the law’s development and the integrity of the system that is defined by age—yet often ignores it—depends upon the access that young people have to appeal rulings that will affect the rest of their lives.
Megan Annitto is an Assistant Professor of Law at Charlotte School of Law where she teaches and researches in the areas of criminal procedure and juvenile justice.