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An Epistemological Look at the Standard of Proof for Future Danger Predictions under the Texas Capital Sentencing Scheme(July 1, 2014)

American Hustle: Reflections on Abscam and the Entrapment Defense(July 1, 2014)

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Juvenile Justice's Second Chance: Untangling the Retroactive Application of Miller v. Alabama Under the Teague Doctrine
American Journal of Criminal Law (December 1, 2014)

Publication: American Journal of Criminal Law
Date published:
Language: English
PMID: 35759
ISSN: 00922315
Journal code: AJCL

I. Introduction ................................................................................................... 222

II. The Historical Development of the Philosophy & Jargon of the Juvenile Justice System ........................................................................................ 225

A. The Nineteenth Century: Uniform Treatment and Advocacy for Change ........................................................................................... 225

B. The Early- to-Mid-Twentieth Century: An Era of Progressive Reform ........................................................................................... 226

C. Late Twentieth Century Reform: A Conflict of Goals Emerges In the Juvenile System ........................................................................ 229

D. The Twenty-First Century: The Conflict Continues into the New Millennium ..................................................................................... 231

III. The Need for Terminological Uniformity .................................................... 232

A. Differing Procedural Terminology is No Longer Justified ................. 233

1. General Deterrence .................................................................... 234

2. Specific Deterrence, Incapacitation, and Rehabilitation .............. 234

3. Avoiding Stigmatization ............................................................ 235

B. The Procedural Terminology of Juvenile Justice Should Be Replaced ......................................................................................... 235

1. Retribution ................................................................................. 236

2. Due Process ............................................................................... 236

C. "Delinquency" Should Continue ....................................................... 238

IV. Conclusion .................................................................................................. 240

I. Introduction

Over the past century, the United States has maintained two parallel systems to address individuals who commit offenses against society: the criminal justice system, which focuses on adults who commit crimes, and the juvenile justice system,1 which handles youths who engage in acts that, if they were adults, would be crimes.2 A salient difference between these two systems - and the focus of this Note - is the use of distinct terminology to refer to their similar procedures.3 State and federal legislatures intended this terminological variation to avoid stigmatizing children as "criminals" and to dissociate the juvenile system from the criminal justice system.4 Since its inception in the late 1800s, juvenile justice jurisprudence and the philosophy driving its alterations have oscillated between harsh and punitive treatment of children who violate criminal proscriptions and softer and rehabilitative treatment.5 The common law treated children who violated criminal laws essentially the same as their adult ("criminal") counterparts, emphasizing punishment of the act rather than the rehabilitation of offenders.6 By the mid- 1920s, reforms separating children and adults who violated criminal laws into two separate court systems swept across the country.7

Legislatures and judges adopted new euphemistic terminology8 to distinguish the newly created civil systems for child offenders from the criminal system into which they were formerly directed.9 Transferring the treatment of children from the criminal law context into the civil law context logically necessitated removing the "criminal" label from children who had been found to have violated the law. To avoid stigmatizing children as "criminals,"10 legislatures and judges instead used - and continue to use - "delinquent."11 Rather than a "warrant for arrest" or an "indictment," juvenile courts issue "charges" in a "petition" or an "order to appear."12 Instead of holding "trials," juvenile courts host "fact-finding hearings" that will not seek to determine whether the alleged "delinquents" have committed "crimes," but rather "acts which if committed by an adult would be a crime."13 At the conclusion of the "fact-finding hearings," juveniles are "adjudicated" as opposed to "convicted,"14 and after "adjudication,"15 juvenile courts issue the "delinquents" "dispositions" instead of "sentences."16 Up until the "disposition," juveniles may be held in "detention," and after "disposition," they may be subjected to "out-ofhome placement," instead of being placed in "prison."17

Given the importance of legislatures' decisions to adopt euphemistic civil law referents to almost-identical criminal law structures, it is surprising that legal scholarship discussing these euphemisms has not more fully addressed the validity of continuing to shield juveniles from terms associated with criminality.18 This Note thus analyzes legislatures' choices to adopt euphemistic terminology when establishing separate justice systems for juveniles. It concludes that legal changes in the past few decades have transformed these once persuasive rhetorical strategies into mere vestiges that undermine the goals of the juvenile justice system. This Note thus recommends that state and federal legislatures replace the procedural euphemisms of the juvenile system with the procedural terminology of the criminal system.

To facilitate this discussion, Part II traces the historical development of juvenile justice law, highlighting the changes in the philosophy and terminology of juvenile justice statutes. Part III analyzes the current euphemistic structure of the juvenile system, argues that it undermines the current goals of the system, and considers potential drawbacks of this proposal. Finally, Part IV concludes that the juvenile justice system would benefit from leaving the "land of euphemisms."19

II. The Historical Development of the Philosophy & Jargon of the Juvenile Justice System

Up until the early 1800s, society and the common criminal law generally failed to distinguish between adult and child offenders.20 Judges often jailed youths in the same prisons and subjected them to the same criminal procedures and punishments as adult offenders.21 Children were "arrested, put into prison, indicted by the grand jury, [and] tried by a petit jury, under all the forms and technicalities of our criminal law, with the aim of ascertaining whether [they] had done the specific act."22 The philosophy of the criminal justice system emphasized punishment instead of rehabilitation of child offenders.23

A. The Nineteenth Century: Uniform Treatment and Advocacy for Change

By the 1820s, societal perceptions of the harshness and unfairness of the identical treatment of children and adults within the criminal system had shifted due to systematic abuse.24 The adult prisons "were becoming dumping grounds for all types of troubled youth. . . . [P]ranksters and demented sociopaths [were] combined with children who suffered mental and physical disabilities or had special education needs."25 Many of the country's "social welfare groups investigated the welfare of children and advocated for better treatment and rehabilitation of delinquent youth."26 These organizations' advocacy - coupled with the increasing jury nullifications at children's trials - evidenced resistance to the legal system's identical treatment of children and adults.27 With the backdrop of this philosophical transformation, these organizations founded and managed institutions for juvenile offenders that, contrary to the criminal justice system's punitive approach, attempted to rehabilitate and educate youths.28 By establishing these institutes in New York, Massachusetts, and Pennsylvania,29 public welfare groups drew "public attention to the corruptive influence of confining juveniles with hardened adult criminals" and offered a model for a separate system for juvenile offenders.30

B. The Early-to-Mid-Twentieth Century: An Era of Progressive Reform

The separate juvenile model did not take hold until the creation of the Cook County Juvenile Court - the United States' first juvenile court - in 1899.31 Illinois founded this court on parens patriae,32 derived primarily from English Courts of Chancery.33 The adoption of the parens patriae principle represented a philosophical change in the law from punishment of juvenile offenders to reformation and rehabilitation.34 It stood for the proposition that the government has the right and obligation to intervene in private matters to protect individuals that could not protect themselves,35 as would a parent looking out for its children.36 Parens patriae did not prohibit punishment, but it instead necessitated the prior inquiry of whether punishment was in the best interest of the child.37 The first juvenile court was thus founded on the philosophy of care, healing, and protection, rather than punishment or retribution.38

The creators of the Cook County Juvenile Court envisioned separate judicial processes for juveniles that focused not on whether juveniles committed crimes but rather on whether they needed a safe haven from the environmental forces that propelled them to act against social mores.39 Illinois's Act to Regulate the Treatment and Control of Dependent, Neglected and Delinquent Children ("the Act"), "defined a delinquent child as any child under the age of sixteen years who violated a state, city, or village law," and decriminalized acts that, if committed by an adult, would be crimes.40 To facilitate juvenile decriminalization and the dissociation of the juvenile system from the existing criminal system, the Act modeled Chancery procedures and employed different terminology - most notably, adjudicating children as "delinquent" rather than "convicting" them as criminals.41

Early twentieth century progressives42 took notice of Illinois' s establishment of its Cook County Juvenile Court and pressed for similar reforms in other states.43 Like the Illinois advocates before them, the progressives also emphasized the parens patriae best-interest approach to dealing with children who were charged with violating criminal laws and urged the abandonment of identical punishments for adults and children.44 Their efforts ushered in two decades of reform throughout the country; by 1917, all but three states operated separate civil courts with jurisdiction over juvenile offenders.45 Using the Cook County Juvenile Court as a model, other jurisdictions that established juvenile courts adopted terminology that also differed from criminal law.46

The juvenile justice system largely retained this form until the mid1960s, when two landmark Supreme Court cases significantly altered its structure to be more protective of juveniles' rights and interests. In Kent v. United States?1 a juvenile court judge waived its jurisdiction over the alleged burglary, robbery, and rape committed by Morris A. Kent, Jr. without holding a hearing, making any findings, ruling on any motions filed by Kent's counsel, allowing Kent's attorney to access Kent's records, or citing any reasons for the waiver.48 Kent was then held for trial in criminal court.49 The Supreme Court considered whether the Fourteenth Amendment's Due Process Clause entitled Kent to a hearing prior to the juvenile court's wavier.50 In a slim 5-4 decision, the Court held that although juvenile court judges had broad discretion to waive jurisdiction,51 the judge should have stated reasons for Kent's transfer to criminal court52 and that children have due process rights to a hearing, even if informal.53 The Court reasoned that juveniles' statutory rights, granted by laws of the District of Columbia,54 were compromised by the juvenile court judge's actions.55 Although the Court did not demand that the due process hearings in juvenile proceedings be equivalent to criminal or administrative hearings, it nonetheless held that the Constitution required a minimal hearing.56

This trend toward increasing juveniles' procedural rights continued in the Court's 1967 decision In re Gault,57 which involved the detention of Gerald Francis Gault after his neighbor phoned the police and complained about Gerald's calling her and making lewd comments.58 After a mere hearing, the judge committed Gerald to six years at the State Industrial School for delinquents.59 On appeal, the Court considered whether a section of Arizona's Juvenile Code was unconstitutional because it did not

require that parents and children be apprised of the specific charges, does not require proper notice of a hearing, and does not provide for an appeal; . . . [T]he proceedings and order relating to [juveniles] constituted a denial of due process of law because of the absence of adequate notice of the charge and the hearing[.]60

The Court held that juveniles, like adults, had due process rights to confrontation, counsel, cross-examination, and notice of charges, as well as the privilege against self-incrimination.61 The increase in due process procedures shaped juvenile courts into structures much more similar to their criminal counterparts.62

Protections for juveniles continued onward into the 1970s, during which Congress entered the scene by passing the Juvenile Justice and Delinquency Prevention Act ("JJDPA") of 1976.63 The JJDPA supplied grants to states that did not put juveniles in prisons with adult criminals.64 Congress intended the new statute to further decriminalize offenses committed by juveniles by encouraging states to implement reforms.65 It is clear from Kent, Gault, and the JJDPA that the philosophy driving juvenile justice law remained primarily protective of children's rights through the 1 970s. In justifying the increased procedure in juvenile proceedings, the Kent Court recognized that "[t]he objectives are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt and punishment. The State is parens patriae .... [b]ut [this] is not an invitation to procedural arbitrariness."66 In Gault, the Court similarly noted that the juvenile justice system was intended to treat and rehabilitate juvenile offenders.67 Interestingly though, it also stated, despite holding that due process requirements attached to juvenile proceedings, that "[t]he apparent rigidities, technicalities, and harshness . . . observed in both substantive and procedural criminal law were ... to be discarded."68 The Court also observed that "[t]he idea of crime and punishment was to be abandoned,"69 but proceeded to discuss statistics of "juvenile crime"10 and the due process privilege of juveniles to be free from "self-incrimination. "1[ However, the original JJDPA also made no mention of juveniles being "convicted" of "crimes," but instead employed the softer, "delinquency" terminology.72 These distinctions possibly imply Congressional cognizance of the increasing criminalization of the juvenile system, and show Congress's difficulty discussing juvenile justice without referencing criminal law.

C. Late Twentieth Century Reform: A Conflict of Goals Emerges In the Juvenile System

Starting in the late 1 970s and continuing into the 1 990s, juvenile offenses increased in both frequency and severity.73 The homicide rate among juveniles had increased exponentially,74 and the recidivism rates were abysmally high.75 Opponents of the juvenile system's leniency used these facts to beef up the system by enacting "less forgiving justice policies,"76 such as laws mandating the transfer of juveniles to criminal courts77 and harsher punishments for young offenders who remained in the juvenile system.78 In light of the increased severity of treatment of juvenile offenders, the juvenile system became more punitive than during the era of reform by the progressives. Media hype surrounding isolated incidents of excessive juvenile violence and "[predictions of a coming wave of superpredators and 'fledgling psychopaths'"79 hastened this philosophical shift by arousing public alarm81 and serving as the platform for politicians to "compete[] to demonstrate that they aimed to get tough on crime[.]"82 Advocates of harsher treatment of juvenile offenders argued that soft policies contributed to juvenile violence because youths perceived juvenile courts to discipline delinquency with mere slaps on the wrist. 83

The philosophical change that drove the 1980s' and 1990s' reforms - particularly laws excluding juvenile courts' jurisdiction over certain acts that if committed by an adult would be crimes - technically necessitated changes in terminology. For instance, an implication of legislative exclusion of "entire categories of juvenile offenders and offenses from the jurisdiction of the family court"84 was that certain acts that constituted "crimes" could no longer be considered "acts, which if committed by an adult would constitute a crime"85 because, whether or not those acts were committed by adults or juveniles, they would always be considered "crimes," subject only to the jurisdiction of criminal courts. The JJDPA's 1992 amendments demonstrated this change in terminology by encouraging states "to identify chronic serious and violent juvenile offenders who commit crimes such as rape, murder, firearms offenses, gang-related crimes, violent felonies, and serious drug offensesf.]"86 Despite the substance of these amendments, legislators supporting these amendments argued that the amendments continued to reflect an underlying Congressional philosophy of promoting rehabilitation and treatment of juveniles.87 Moreover, legislators conceded that institutionalized juveniles should receive due process protections and be kept separate from adults in confinement.88 These substantive changes thus gave rise to a conflict between the increasingly punitive and retributive goals of the juvenile system and the desire to maintain its rehabilitative identity separate from the criminal system.

D. The Twenty-First Century: The Conflict Continues into the New Millennium

After moving into the new millennium, Congress amended the JJDPA again in 2002 to "promotfe] public safety by encouraging accountability for acts of juvenile delinquency."*9 Despite the amendments' general retention of the euphemistic terms, the amendments demonstrated dissatisfaction with the effectiveness of the juvenile justice system90 and implied the desire to make states' juvenile justice laws more punitive. 1 For example, the bill stated that it also aimed "to assist State and local governments in addressing juvenile crime,"92 and authorized the Attorney General to issue Juvenile Accountability Block Grants "to preventf] and control[] juvenile crime."92 While the uses of "crime" within the Congressional findings probably lack substantive legal significance, they exemplify digression from the intent to avoid the branding of juvenile offenders as "criminals."94 Legislators supporting the bill also referred to "juvenile crime" when discussing problems that needed to be addressed, but referred to juveniles as "delinquents" instead of criminals.95 The tensions reflected by the 1992 JJDPA amendments thus continued into the new millennium with the 2002 amendments to the JJDPA.

This punitive shift was further illustrated by some states' reversions back to the pre- 1920s' criminal law terminology to describe juvenile procedures. In 1987, Illinois - the first state to establish a separate juvenile court96 - passed the Juvenile Court Act ("JCA"),97 which utilized the procedural terminology associated with criminal law. It replaced "dispositional hearing" with the term "sentencing hearing," which means "a hearing to determine whether a minor should be adjudged a ward of the court, and to determine what sentence should be imposed on the minor."98 It replaced "adjudicatory hearing" with the term "trial", which "means a hearing to determine whether the allegations of a petition . . . that a minor is delinquent are proved beyond a reasonable doubt . . . [and] [i]t [was] the intent of the General Assembly that the term 'trial' replace the term 'adjudicatory hearing.'"99 The JCA also uses the terms "arrest" and "warrant"100 to refer to the process of taking juveniles into custody.101 The Illinois General Assembly's motivation behind the terminological changes was to accord the terms with the criminal system as part of toughening the juvenile system on child offenders.102 As the pioneer of juvenile courts, Illinois may once again serve as the model that many states look to for direction in reforming their juvenile justice laws. In fact, Kansas has also taken a similar approach and aligned the terminology of its juvenile statutes with its criminal statutes.103 Other states might also consider following suit by changing their juvenile systems' terminology to resemble criminal law terms. The second half of this Note takes up the task of analyzing the merit of such ventures.

III. The Need for Terminological Uniformity

The founders of juvenile courts emphasized rehabilitation, which remained the ultimate goal of the juvenile system through the mid-1970s when legislative reforms imbued the justice system with a punitive philosophy via mandatory transfer laws and tougher dispositions.104 This shift in the underlying purpose of the system's treatment of juveniles also complicated the goals of the juvenile system. Policymakers pushed for harsher dispositions to deter all youths from potentially committing delinquent acts ("general deterrence") and to deter youths who had committed delinquent acts from doing so again in the future ("specific deterrence").105 Legislatures also viewed the juvenile system as a tool for incapacitating delinquents from repeating offenses by getting them off the streets.106 Finally, the punishment of juvenile offenders provided the public with some sense of retribution for the societal harm resulting from delinquent acts.107 Thus, in addition to the original rehabilitative goal of the juvenile system, the current juvenile system attempts justice by deterring juveniles from committing delinquent acts and promoting a sense of retribution though punishment.108 Given these goals, legislatures ought to structure juvenile justice laws - including the terminology those laws employ - to appropriately balance these competing objectives.

Due to the substantive, procedural, and philosophical changes within the juvenile justice system over the past half-century, many of the founders' dissociative euphemisms no longer serve much purpose. Since the turn of the twentieth century, legislatures have continually avoided branding juveniles who violate criminal proscriptions as "criminals."109 Because this distinction is axiomatic of the juvenile system,110 legislatures and courts ought to preserve the word "delinquency" to avoid stigmatizing children with the label of criminality. Conversely, the procedural terms of the juvenile system that are unrelated to criminal stigma (e.g., "allegation," "petition," "order to appear," "fact-finding hearings," "adjudication," and "disposition") should be discarded. This Part first purports that none of the competing goals of the juvenile system can justify these procedural terms and that these terms actually undermine the public's sense of retribution and the protection of youths' due process rights. This part then contends that continuing the "delinquency" label can massage the residual tension between achieving a public sense of retribution and avoiding the stigmatization of children.

A. Differing Procedural Terminology is No Longer Justified

The discordant terminology between the juvenile and criminal justice systems cannot be justified on the grounds that it promotes incapacitation or rehabilitation of juveniles or that it achieves specific or general deterrence of delinquency. Moreover, because the stigma of criminality would seem to attach only at the point of conviction, the procedural distinctions make little sense in the way of avoiding the stigmatization of juveniles. Thus, juvenile justice euphemisms do not advance these important goals.

1. General Deterrence

The softer terms of the juvenile system fail to generally deter youths from violating laws because of their ignorance of the law. A review of studies by Jeffrey Fagan concluded that increasing the punishments of juvenile offenders has not deterred youths from violating criminal laws.111 Fagan analyzed some studies that concluded that juveniles are largely unaware of the laws and structures within the juvenile system, such as the age boundaries that permit criminal courts to punish juveniles."2 Given this unawareness of the nuances of the juvenile system, it is difficult to understand the softer euphemistic terminology of the juvenile system as promoting general deterrence by instilling fear in children that they may face the less-intimidating procedural euphemisms. Even among those youths who are aware of the varying terms between the juvenile and criminal systems, many may not even understand the meanings of those differences.113

2. Specific Deterrence, Incapacitation, and Rehabilitation

The softer euphemisms cannot be justified on the grounds of specific deterrence, incapacitation, or rehabilitation. The theory of specific deterrence is that the fear of punishment will deter juveniles' future delinquent or criminal acts, as opposed to rehabilitation, which focuses on treatment and correction of delinquent tendencies.114 Fagan reviewed another study, conducted by David Lee and Justin McCrary, which evaluated the specific deterrence benefits of a harsher system for juveniles, particularly the enactment of mandatory transfer laws.115 The study concluded that laws that increased punishments of juvenile delinquents had little deterrent effect after they reached the age of adulthood.116 These results are not surprising. Because the euphemistic terminology is less punitive, it is difficult to see how the terminology has a specifically deterrent effect; that is, that it acts as a punishment that juveniles would be discouraged from encountering again. Lastly, it is not easy to conceptualize mere statutory rhetoric as furthering rehabilitative efforts or postdispositional incapacitation, because the terminological differences between the juvenile and criminal systems do not affect efforts to incapacitate or rehabilitate juveniles.

3. Avoiding Stigmatization

When the 1920s' progressives founded separate systems to address juvenile offenders, they fashioned a unique vocabulary of terms to avoid the social stigma attached to criminality.117 Because the juvenile system lacked its current structure at that time, different terms were appropriate because the juvenile system hardly resembled its criminal counterpart.118 Given the transformation of the civil juvenile system into a structure that strikingly resembles the criminal system, the retention of the procedural euphemisms to shield juveniles from the criminal stigma makes little sense. This is particularly true since an individual is only dubbed a "criminal" after a jury conviction. It is after this point that "criminals" are sentenced and left with a record that might frequently need to be disclosed to prospective employers and educational institutions. Therefore, social stigma of criminality would usually not attach to those who are declared to be not guilty of committing the offense(s) by a jury of their peers. Thus, the retention of procedural euphemisms does little if anything to advance the goals of protecting children from the label of criminality.

B. The Procedural Terminology of Juvenile Justice Should Be Replaced

The substantial reform to the juvenile system from the 1960s through the 1990s demonstrated a shift in society's views from the perceived need for soft treatment and a rehabilitative focus toward a perceived need for a more punitive approach to handling juveniles who were alleged to have transgressed criminal prohibitions.119 No change in terminology supplemented the laws upping punishments within the juvenile system or the increased due process protections the Supreme Court granted to children in Kent and Gault.m While the goals of retribution and protection of children's due process rights entered the mix during this period,121 the failure of legislatures to unify the procedural terminology between the criminal and juvenile justice systems has undermined these goals.

1. Retribution

The original euphemistic terminology that reflected a system that emphasized rehabilitation over punishment now represents a highly punitive juvenile system that has been accurately characterized as "a wolf in sheep's clothing[.]"122 Consequently, the juvenile system's masquerading as a rehabilitative structure rather than a punitive one is not only misleading but also unjustifiable as it hedges against the public's sense of retribution.123 By according the procedural terms of the juvenile system with the terms of the criminal system, the public would better understand the comparability of juvenile and criminal court procedures, which would not only better achieve the system's goal of heightening the public's sense of retribution, but also address uniformed concerns that the juvenile system is too lenient.124

2. Due Process

Another important aspect of the juvenile justice system-as identified by the Supreme Court in Gault125 and Kent126- is the protection of due process rights of youths in juvenile courts. In context of this goal, employing euphemistic terminology in juvenile justice statutes may actually have the external disadvantage of hindering due process objectives in two primary ways. First, juveniles frequently misunderstand - or simply do not understand - the terminology employed in juvenile court proceedings. In 2004, Barbara Kaban conducted a survey of ninety-eight children going through juvenile proceedings in Massachusetts.127 Kaban concluded that "[m]ost participants ... did not understand the majority of words and phrases presented to them" and that, on average, the juvenile participants only understood about six percent of the terms used. 128 Interestingly, no participant correctly defined the term "disposition," but forty-six participants (almost half) correctly defined the corresponding criminal term "sentencing" - the term that the highest number of participants was able to accurately define.129 Thus, the terminology employed in juvenile courts may thwart due process protections because such a high number of juveniles are ignorant of the meanings of the juvenile terms and may thereby waive certain rights they would not have otherwise waived had they understood the terminology.130

Second, terminological differences may result in state court judges ruling for fewer procedural protections for juveniles. Two cases from the supreme courts of Washington and Kentucky are illustrative. The Supreme Court of Washington sitting en banc in State v. Lawiey131 addressed a case where prosecutors charged a juvenile with second-degree robbery under the state's Juvenile Justice Act of 1977, which stipulates, "Cases in the juvenile court shall be tried without a jury."132 After considering "whether the juvenile proceedings are so akin to an adult criminal prosecution that the constitutional right to a jury trial is necessary,"133 the court answered in the negative.134 It reasoned that "the legislature has changed the philosophy and methodology of addressing the personal and societal problems of juvenile offenders, but it has not converted the procedure into a criminal offense atmosphere totally comparable to an adult criminal offense scenario."135

The Supreme Court of Kansas considered the same question in In re L. M136 - where a juvenile was charged with aggravated sexual assault and possessing alcohol137 - and concluded to the contrary.138 L.M. contended that, because the juvenile procedures were so akin to criminal procedures, he had a constitutional right to trial by jury; "According to L.M., the negating of the rehabilitative purpose is evidenced by the replacement of nonpunitive terminology with criminal terminology similar to the adult criminal code. . . ."139 The Court made note of the terminological changes to the KJJC stating that "[it] also incorporates language similar to that found in the Kansas Criminal Code and the Kansas Code of Criminal Procedure."140 It held that "[t]hese changes to the juvenile justice system have eroded the benevolent parens patriae character that distinguished it from the adult criminal system."141

The Kansas Supreme Court then held that juveniles have a right to a trial by jury under both the United States Constitution142 and the Kansas Constitution.143 Thus, the differing terminology for the juvenile system, as in Washington's case, has resulted in courts interpreting statutes as providing fewer procedural protections for juveniles, but as in Kansas' s case, increased terminological similarity between the juvenile and criminal systems resulted in more due process rights.

A conceivable counter-point to the desirability of ditching the procedural terminology of the juvenile system is that a change in the vocabulary that has been used for decades would create confusion among practitioners and judges, which may frustrate the purposes of the juvenile system by creating more barriers to effective practice. This concern is not worrisome because lawyers' legal training enables them to keep up with changes to the laws in their respective fields. At the very least, it would probably be comparably easier for lawyers - who have all had legal training - to learn legal nuances than it would be for youths in juvenile court. Moreover, unifying the terms of the juvenile and criminal systems may reduce entry barriers for criminal lawyers who desire to practice juvenile law as well.

C. "Delinquency" Should Continue

Though legislatures ought to make the procedural terms of the juvenile system match their parallel terms in the criminal system, they should not replace the term "delinquent" with "criminal" for at least two main reasons. First, the "delinquent"-"criminal" distinction is fundamental to an original premise - and continued goal - of the juvenile system that juveniles not be labeled "criminals."144 Because the stigma of committing a crime attaches at conviction, retaining "delinquent" is necessary to avoid stigmatization of juveniles. Second, the term "delinquent" remains true to the goal of maintaining the rehabilitative focus of dispositions (or, as this Note would have it, "sentencings") by avoiding the "criminal" label. Replacing the procedural terminology while keeping "delinquent" helps to balance the punitive goals of retribution with the goals of rehabilitation, avoiding stigma, and protecting due process rights.

On one hand, some might argue that replacing "delinquent" with "criminal" would not only create complete terminological uniformity, but also maximize the public's sense of retribution because the stigma of criminality would be more punitive. However, complete uniformity would come at the expense of the rehabilitative and stigma-avoiding goals central to the foundation and, perhaps more importantly, essential to the current goals of the juvenile justice system. 145 Complete uniformity might one day be appropriate, though, if the separate system for juveniles is ever abolished, as some have proposed.146

On the other hand, others might argue that "delinquent" has become too stigmatizing. The Supreme Court has already hinted at such a possibility. The Gault Court147 noted:

[O]ne of the important benefits of the special juvenile court procedures is that they avoid classifying the juvenile as a "criminal." The juvenile offender is now classed as a "delinquent." There is, of course, no reason why this should not continue. It is disconcerting, however, that this term has come to involve only slightly less stigma than the term "criminal" applied to adults.148

The Court continued, "[T]he word 'delinquent' has today developed such invidious connotations that the terminology is in the process of being altered; the new descriptive phrase is 'persons in need of supervision,' usually shortened to 'pins.'"149 In Davis v. Alaska^50 decided only seven years after Gault, the Court seemed to rebut its concern. In Davis, an adult was charged with burglary and was identified out of a photographic line-up by a child, Richard Green, who was a crucial witness for the prosecution.151 The defense attorney planned to bring up Richard's delinquency status, but the trial court sustained the prosecution's objection to mentioning his status in the criminal trial.152 The Court disagreed, holding that the right to confront a witness outweighed the harm to the child from revealing his status; it stated that the stigma associated with "delinquency" was only a "temporary embarrassment" to a juvenile and his or her family.153 Thus, the stigma associated with "delinquency" may not have risen to the level of necessitating alternative terms for children that violate criminal proscriptions.

IV. Conclusion

The decisions of the Illinois and Kansas legislatures to align the procedural terminology of the juvenile system more closely with that of the criminal system more effectively achieves the competing goals of the juvenile justice system. It is the recommendation of this Note that other state legislatures and Congress take a similar approach of making the terminology of the juvenile system similar to the criminal system. More specifically, procedural terms including: "order to appear," "allegations," "petition," "fact-finding hearings," "adjudication," and "disposition" should be replaced with their parallel criminal law terms: "warrant for arrest," "charge," "trial," "conviction," and "sentencing." Conversely, legislatures ought not dispose of the term "delinquent," as it fulfills the still-important objective that there be some distinction between the juvenile and criminal justice systems. Though the jargon employed by the founders of separate juvenile systems were effective mechanisms to distinguish the new system from criminal law, those terms now undermine the goals of the modern juvenile system, which has increasingly resembled the criminal system over the past decade. Exchanging these terms with their respective criminal law terms would enhance not only the due process and rehabilitative goals of the juvenile justice system but also the public's sense of retribution.

1. This Note uses the words "juvenile," "child," "adolescents," "youths," and "children" to refer to individual persons that are of the age that may fall within the jurisdiction of a juvenile court. Although there are many "juvenile justice systems" within the United States, this Note will use the term "juvenile justice system" to generally refer to this collective group of state juvenile justice systems.

2. See David Dormont, Note, For the Good of the Adult: An Examination of the Constitutionality of Using Prior Juvenile Adjudications to Enhance Adult Sentences, 75 MrNN. L. REV. 1769, 1770 (1991).

3. Gerald P. Hill, II, Revisiting Juvenile Justice: The Requirement for Jury Trials in Juvenile Proceedings Under the Sixth Amendment, 9 FLA. COASTAL L. REV. 143, 145-46 (2008).

4. Julian W. Mack, The Juvenile Court, 23 HARV. L. REV. 104, 109 (1909).

5. See Jeffrey K. Day, Comment, Juvenile Justice in Washington: A Punitive System in Need of Rehabilitation, 16 U. PuGET SOUND L. Rev. 399, 399 (1992) ("Throughout history, juvenile justice philosophy has been a pendulum swinging from one extreme to the other.").

6. Mack, supra note 4, at 106.

7. See Maggie Gertz, Note, The Road Less Traveled: Using ADR to Help Reform First-Time Juvenile Offenders, 8 CaRDOZO J. CONFLICT RESOL. 339, 345 (2006) ("Within 25 years, the majority of states had followed suit, and the idea that there should be a separate system for youth offenders had taken hold internationally.").

8. In re Gault, 387 U.S. 1, 15-16 (1967) (describing the differences between adult and juvenile systems, especially that whereas the former are focused on determining guilt and innocence, the latter are focused on rehabilitation and were intended to be "clinical" rather than "punitive"); Lanes v. State, 767 S.W.2d 789, 791-92 (Tex. Crim. App. 1989) (noting that the creators of the juvenile system considered the adult system as "punitive, cruel and nonrehabilitative," and therefore replaced the terminology of the criminal system with "more palatable terminology"); Rose M. Charles & Jennifer V. Zuccarelli, Note, Serving No "Purpose": The Double-Edged Sword of New York's Juvenile Offender Law, 12 ST. JOHN'S J. LEGAL COMMENT. 721, 730 (1997) (observing that creators of the juvenile system replaced the standard crime and punishment language of the criminal system with "the rehabilitative terminology of diagnosis and treatment"); Janet Gilbert et. al, Applying Therapeutic Principles to a Family-Focused Juvenile Justice Model (Delinquency), 52 ALA. L. REV. 1153, 1160 (2001); Gerard F. Glynn, Arkansas ' Missed Opportunity for Rehabilitation: Sending Children to Adult Courts, 20 U. ARK. LITTLE ROCK L.J. 77, 80 n.17 (1997) (noting that the Illinois Juvenile Court Act of 1 899 was among the first in the country to alter the terminology of the criminal system); Hill, supra note 3, at 145^46; Lisa A. Stanger, Conflicts Between Attorneys and Social Workers Representing Children in Delinquency Proceedings, 65 FORDHAM L. REV. 1 123, 1 127 (1996) ("To emphasize that the criminal justice system does not treat a delinquency offense as a crime, the majority of juvenile courts utilize terms that are unique to delinquency cases."); Randie P. Ullman, Federal Juvenile Waiver Practices: A Contextual Approach to the Consideration of Prior Delinquency Records, 68 FORDHAM L. REV. 1329, 1334 (2000) (noting that euphemistic terminology serves to distinguish juvenile proceedings from criminal prosecutions ).

Not all criminal law terms have been replaced with a euphemism in the juvenile system. See, e.g., ARK. CODE Ann. 9-27-303(44) (2009) (defining "prosecuting attorney" as "an attorney who is elected as district prosecuting attorney, the duly appointed deputy prosecuting attorney, or any city prosecuting attorney"); TEX. FAM. CODE ANN. 51.02(11) (2009) (defining "prosecuting attorney" as "the county attorney, district attorney, or other attorney who regularly serves in a prosecutory capacity in a juvenile court.").

And sometimes a parallel word will refer to slightly different concepts. See, e.g., ARK. CODE ANN. 9-27-303(58) (defining "victim" as "any person or entity entitled to restitution ... as the result of a delinquent act committed by a juvenile adjudicated delinquent," as opposed to a person who harmed by a criminal act without being entitled to restitution).

9. See Gail B. Goodman, Comment and Casenote, Arrested Development: An Alternative to Juveniles Serving Life Without Parole in Colorado, 78 U. COLO. L. REV. 1059, 1067 n.50 (2007) (noting "that the juvenile court system often uses different terminology to distinguish its philosophy from the adult court").

10. Monya M. Bunch, Notes & Comments, Juvenile Transfer Proceedings: A Place for Restorative Justice Values, Al HOW. LJ. 909, 915 (2004); Catherine R. Guttman, Note, Listen to the Children: The Decision to Transfer Juveniles to Adult Court, 30 HARV. C.R.-C.L. L. REV. 507, 511 (1995); Mack, supra note 4, at 109.

11. See, e.g., ARK. CODE ANN. 9-27-303(1 5)(A)-(B) (defining "juvenile delinquent" as "any juvenile: [t]en (10) years old or older who has committed an act other than a traffic offense or game and fish violation that, if the act had been committed by an adult, would subject the adult to prosecution for a felony, misdemeanor, or violation under the applicable criminal laws of this state ... or [a]ny juvenile charged with capital murder ... or murder in the first degree . . . subject to extended juvenile jurisdiction^]").

12. See, e.g., ARK. CODE ANN. 9-27-303(38) (defining "order to appear" as "an order issued by the court directing a person who may be subject to the court's jurisdiction to appear before the court at a date and time as set forth in the order").

13. Pater Reinharz, Why Teen Thugs Get Away With Murder, 6 CITY JOURNAL (1996), available at (quoting N.Y. FAMILY COURT ACT 342.2).

14. Id.

15. See, e.g., Ark. CODE Ann 9-27-303(4) (defining "adjudication hearing" as "a hearing to determine whether the allegations in a petition are substantiated by the proof.").

16. Reinharz, supra note 13.

17. See, e.g., Ark. Code Ann. 9-27-303(19) & 9-27-303(39)(A)-(B) (defining "detention" as "the temporary care of a juvenile in a physically restricting facility other than a jail or lock-up used for the detention of adults prior to an adjudication hearing for delinquency or pending commitment pursuant to an adjudication of delinquency ;" and defining "out of home placement" as "[placement in a home or facility other than placement in a youth services center, a detention facility, or the home of a parent or guardian of the juvenile; or [placement in the home of an individual other than a parent or guardian, not including any placement when the court has ordered that the placement be made permanent and ordered that no further reunification services or six-month reviews are required. . . . 'Out-of-home placement' shall not include placement in a youth services center or detention facility as a result of a finding of delinquency."). Other examples include "respondent," instead of "defendant," "admissions" and "denials" rather than pleas of "innocent" or "guilty," Stacey Hiller, Note, The Problem With Juvenile Sex Offender Registration: The Detrimental Effects of Public Disclosure, 7 B.U. Pub. Int. L.J. 271 , 290 n.132 (1998), being "processed" instead of being "booked," and being on "aftercare" instead of "parole." Robert O. Dawson, The Future of Juvenile Justice: Is it Time to Abolish the System?, 81 J. CRlM. L. & CRIMINOLOGY 136, 140 (1990), and "referred" rather than "arrested." Christina DeJong & Eve Schwitzer Merrill, Getting "Tough On Crime": Juvenile Waiver and the Criminal Court, 27 OHIO N.U. L.REV. 175, 179(2001).

18. But see, e.g., Steven Friedland, The Rhetoric of Juvenile Rights, 6 STAN. L. & POL' Y REV. 137 (1995) (discussing the rhetoric surrounding children rights generally but not the particular rhetoric of juvenile justice statutes). For examples of legal scholarship commenting on the adoption of the euphemistic terminology in the juvenile justice context, see supra note 8.

19. Symposium, Mischief and Mayhem: A Symposium on Legal Issues Affecting Youth in the Child Welfare and Juvenile Justice Systems, 14 CARDOZO J. L. & GENDER 609, 622 (2008) [hereinafter Mischief and Mayhem).

20. Sarah Steward-Lindsey, Note, Fulfilling the Promise of Kent: Fixing the Texas Juvenile Waiver Statute, 34 AM. J. CRlM. L. 109, 111 (2006); See Mack, supra note 4, at 106. ("Our common criminal law did not differentiate between the adult, and the minor who had reached the age of criminal responsibility, seven at common law and in some of our states, ten in others, with a chance of escape up to twelve, if lacking in mental and moral maturity.").

21. Mack, supra note 4, at 106-07.

22. Id. at 106.

23. Id.

24. Steward-Lindsey, supra note 20, at 1 1 1 .

25. Joanna S. Markman, In Re Gault: A Retrospective in 2007: Is It Working? Can it Work?, 9 BARRY L. REV. 123, 126 (2007).

26. Steward-Lindsey, supra note 20, at 1 1 1 .

27. Gilbert et al., supra note 8, at 1 157.

28. Id.

29. Id.

30. Steward-Lindsey, supra note 20, at 1 1 1 .

31. Id. at 111.

32. Id. at 111-12.

33. Courtney R. Clark, Note, Collateral Damage: How Closing Juvenile Delinquency Proceedings Flouts the Constitution and Fails to Benefit the Child, 46 U. LOUISVILLE L. REV. 199, 203 (2007).

34. Steward-Lindsey, supra note 20, at 112. Legislatures sought to infuse the juvenile justice system with rehabilitative values, for example, by incorporating medical and social work terminology into statutes. Marygold S. Melli, Juvenile Justice Reform in Context, 1996 WIS. L. REV. 375, 378 (1996).

35. Steward-Lindsey, supra note 20, at 1 12.

36. Markman, supra note 25, at 125.

37. Steward-Lindsey, supra note 20, at 1 12.

38. Markman, supra note 25, at 125.

39. Id. at 125-27.

40. Megan M. Sulok, Comment, Extended Jurisdiction Juvenile Prosecutions: To Revoke or Not to Revoke, 39 LOY. U. CHl. L.J. 215, 224-25 (2007).

41. Id. at 225.

42. Kim Taylor-Thompson, States of Mind/States of Development, 14 STAN. L. & POL'Y REV. 143, 146(2003).

43. Id. ("The Progressive reformers' observations helped to surface and ultimately condemn the punitive impulses that defined the justice system's approach to juvenile crime.").

44. Id. at 147.

45. Marcia Johnson, Juvenile Justice, 17 WHITTIER L. REV. 713, 719(1996).

46. Gilbert et al., supra note 8, at 1 160.

47. 383 U.S. 541 (1966).

48. Id. at 543-46.

49. Id. at 548.

50. Id. at 552.

51. Id. at 552-53.

52. See id. at 561 ("[WJe hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor.").

53. Id. at 561-62.

54. The statutory rights included shielding from publicity, being free from confinement with adults except in rare cases, and protection "against [the] consequences of adult conviction such as the loss of civil rightsf.]" Id. at 556-57.

55. Id. at 556-57.

56. Id. at 562.

57. 387 U.S. 1(1967).

58. Id. at 4.

59. Id. at 7-8.

60. Mat 9-10.

61. See generally id.

62. ELIZABETH S. SCOTT & LAURENCE STEINBERG, RETHINKING JUVENILE JUSTICE 8 (2008) ("In the views of many observers, Gault marked the beginning of the end of the traditional juvenile court.").

63. 42 U.S.C. 5601 (2006).

64. 42 U.S.C. 5633.

65. Jay D. Blitzman, Gault's Promise, 9 BARRY L. REV. 67, 82 (2007).

66. Kent v. United States, 383 U.S. 541, 554-55 (1966)

67. In re Gault, 387 U.S. 1, 15-16 ("The child was to be 'treated' and 'rehabilitated' and the procedures, from apprehension through institutionalization, were to be 'clinical' rather than punitive.").

68. Id. at 15.

69. Id.

70. Id. at 20 n.26 (emphasis added).

71. Id. at 42-57 (emphasis added).

72. 42 U.S.C. 5601(a)(ll) (2006).

73. SCOTT & STEINBERG, supra note 62, at 12. See generally Kevin W. Saunders, A Disconnect Between Law and Neuroscience: Modern Brain Science, Media Influences, and Juvenile Justice, 2005 UTAH L. REV. 695 (2005) (describing the negative influence of media violence on the behavior of adolescents).

74. See SCOTT & STEINBERG, supra note 62, at 12 ("In the early 1990s, homicides by juveniles were at an all-time high, several times the number in 1 970.").

75. Id. at 12-13.

76. Id. at 7.

77. Jeffrey Fagan, Juvenile Crime and Criminal Justice: Resolving Border Disputes, 18 THE FUTURE OF Children 81, 82 (2008), available at /publications/docs/ 1 8_02_05.pdf

78. Scott & Steinberg, supra note 62, at 5.

79. Id. at 7.

80. Fagan, supra note 77, at 92.

81. Scott & Steinberg, supra note 62, at 4.

82. Id. at 6.

83. Id. at 7-8.

84. Fagan, supra note 77, at 84.

85. Marissa Slaten, Note, Juvenile Transfers to Criminal Court: Whose Right is it Anyway?, 55 RUTGERS L. REV. 82 1 , 823 (2003).

86. Act of Nov. 4, 1992, Pub. L. No. 102-586, sec. 2(g)(3), 106 Stat. 4982, 4995 (1992) (repealed 2002) (emphasis added). Other changes in the statutory language are discernable, such as the use of "sentencing" when referring to the juvenile system. See, e.g., sec. 2(g)(6)(N)(b)(l)(a)(iii), 106 Stat, at 4997 ("Pursuant to 1992 Amendments. Not later than 1 year after the date of enactment of this subsection, the Comptroller General shall conduct a study with respect to juveniles waived to adult court that reviews . . . sentencing patterns, comparing juveniles waived to adult court with juveniles who have committed similar offenses but have not been waived[.]").

87. Hearing on the Juvenile Justice and Delinquency Prevention Act before the Subcomm. on Human Res. of the Comm. on Educ. and Labor, H.R., 102nd Cong. 13 (1991) (statement of Vicki Neiberg, Nat'l Coal. Of State Juvenile Justice Advisory Groups), available at

88. Id. at 14.

89. 42 U.S.C. 5602(2) (2006) (emphasis added). Congress's use of the term "delinquency" demonstrates that, even in the new millennium, it continued to employ the softer, euphemistic terminology established in the early 1900s.

90. Enrico Pagnanelli, Note, Children As Adults: The Transfer of Juveniles to Adult Courts and the Potential Impact of 'Roper v. Simmons, 44 AM. CRIM. L. REV. 175, 180-81 (2007).

91. See, e.g., 5601(a)(10)(B) ("These problems should be addressed through a[n] . . . approach that . . . promot[es] . . . programs that assist in holding juveniles accountable for their actions . . . including a system of graduated sanctions to respond to each delinquent act[.]").

92. 5602(3) (emphasis added). The use of "crime" in the Congressional findings can be contrasted to other parts of the bill where the terms "serious crime," "violent crime," and "hate crime" were defined or used. 42 U.S.C. 5602 passim.

93. 42 U.S.C. 3796ee(6) (emphasis added).

94. See Mack, supra note 4, at 1 09 (indicating that different terminology was originally adopted to avoid stigmatizing children).

95. See 148 CONG. REC S9697, 9700 (2002) (considering and agreeing to 21st Century Dep't of Justice. Appropriations. Authorization. Act - Conference Report, S. REP. No. 107-96 (2001)).

96. Mack, supra note 4, at 107.

97. 705 ILL. COMP. STAT. 405/1-1 (2010).

98. 405/5-105(13).

99. 405/5-105(17).

100. Kansas also uses the term "warrant" in its juvenile justice statutes. KAN. STAT. ANN. 382302(s) (2009) ("'Warrant' means a written order by a judge of the court directed to any law enforcement officer commanding the officer to take into custody the juvenile named or described therein.").

101. See 705 ILL. COMP. STAT. 405/5-40 1 (outlining the procedure for arresting a juvenile without a warrant).

102. See Criminal Defense of Juvenile Delinquency Matters, The Law Offices of Robert W. Brown Jr. & Associates, P.C., (last visited Apr. 23, 2010) (describing the changes to the JCA that make it more akin to adult courts).

103. In re L.M., 186 P.3d 164, 168 (Kan. 2008).

104. Bonnie Mangum Braudway, Comment, Scarlet Letter Punishments for Juveniles: Rehabilitation Through Humiliation?, 27 CAMPBELL L. REV. 63, 63-64 (2004) (describing the rehabilitative focus of early juvenile systems and the shift in the 1970s toward a more punitive approach).

105. Id. at 76.

106. Ellie D. Shefi, Note, Waiving Goodbye: Incarcerating Waived Juveniles In Adult Correctional Facilities Will Not Reduce Crime, 36 U. MICH. J. L. REFORM 653, 655 (2003).

107. Id. at 656 (describing retribution as one of the goals of the juvenile justice system).

108. The end goals of "specific deterrence" or "special deterrence," overlaps with "rehabilitation" because the definition of "rehabilitation" is to "improve a criminal's character and outlook so that he or she can function in society without committing other crimes." BLACK'S LAW DICTIONARY 131 1 (8th ed. 2004). This is the same goal as "special deterrence" which is "[a] goal of a specific conviction and sentence to dissuade the offender from committing crimes in the future." Id. at 481.

109. See supra Part II.B.

110. See supra Part II.A.

111. Fagan, supra note 77, at 102.

112. Id. at 32. But see id. at 33 (describing another study reporting that juveniles were more sensitive to age distinctions that would subject juveniles to criminal punishment).

113. See Barbara Kaban, Rethinking a "Knowing, Intelligent, and Voluntary Waiver " in Massachusetts' Juvenile Courts, 5 J. CENTER FOR FAM. CHILD. & CTS. 35, 36 (2004) ("On average, participants in the study did not understand 86 percent of the legal terminology routinely used in plea proceedings in Massachusetts' juvenile courts.").

114. See supra, note 108.

115. Fagan, supra note 77, at 103.

116. Id.

117. Mack, supra note 4, at 109.

118. See supra Part II.B.

119. See supra Part II.C.

120. See supra Part II.C.

121. See supra Part II.C.

122. Mischief and Mayhem, supra note 1 9, at 622.

123. See Reinharz, supra note 13 (recounting victims' family members sense that justice is not served in the juvenile system).

124. See, e.g. , id. (arguing that the terms of the juvenile justice system evidence the system's overly-lenient policies).

125. 387 U.S. 1(1967).

126. 383 U.S. 541 (1966).

127. Kaban, supra note 1 14, at 39.

128. Id. at 42.

129. Id.

130. Id. at 48-49.

131. 591 P.2d 772 (Wash. 1979).

132. Id. at 772 (quoting Wash. Rev. Code. Ann. 13.04.021 (2003)).

133. Id.

134. Id. at 774.

135. Id. A plurality for the Supreme Court of the United States reached the same conclusion about the federal constitution in McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971).

136. 186 P.3d 164 (Kan. 2008).

137. Id. at 165.

138. Id. at 170, 172.

139. Id. at 168.

140. Id. at 168 (citations omitted). The Court further explained the terminological similarities:

Under the KJOC, juveniles were required to admit or deny the allegations against them or plead nolo contendere. Under the KIJC, a juvenile is required to plead guilty, not guilty, or nolo contendere like adults charged with a crime. Although both the KJOC and the KJJC refer to an adjudication rather than a conviction, a 'dispositional proceeding' under the KJOC is now referred to as a 'sentencing proceeding' in the KJJC. The 'State youth center' referred to in the KJOC is now called a 'Juvenile correctional facility,' which is more akin to an adult 'correctional institution.' Moreover, the KJJC emulates the language of the Kansas Criminal Code when it refers to the term of commitment to a juvenile correctional facility as a 'term of incarceration.' This conceptualization of juvenile offenders stresses the similarities between child and adult offenders far more than it does their differences.

Id. at 168-69 (citations omitted).

141. Id. at 170.

142. Id.

143. Id. at 172. The LM. court distinguished the facts from the Supreme Court's McKeiver decision in holding that the Seventh Amendment did require a right to a trial by jury on the particular facts of the case. Id. at 170-71.

144. Mack, supra note 4, at 109.

145. See supra Part ILD.

146. Dawson, supra note 17, at 136.

147. For the facts of Gault, see text accompanying notes 57-61.

148. 387 U.S. 1,23-24(1967).

149. Id. at 24 n.31 (quoting Note, Juvenile Delinquents: The Police, State Courts, and Individualized Justice, 79 HARV. L. REV. 775, 799 n. 140 (1966)).

150. 415 U.S. 308(1974).

151. Id. at 309-10.

152. Id. at 310-11.

153. Id. at 319.

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