Academic journal article Vanderbilt Law Review

Toward Fundamental Fairness in the Kangaroo Courtroom: The Due Process Case against Statutes Presumptively Closing Juvenile Proceedings

Academic journal article Vanderbilt Law Review

Toward Fundamental Fairness in the Kangaroo Courtroom: The Due Process Case against Statutes Presumptively Closing Juvenile Proceedings

Article excerpt


The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty.

-In re Oliver, 19481

Under our Constitution, the condition of being a boy does not justify a kangaroo court.

-In re Gault, 19672

Today's juvenile courtroom functions quite differently than did its 1899 Chicago ancestor.3 During every decade since the IMAGE FORMULA6

1960s, the juvenile court system has undergone a number of fundamental, structural changes.4 The most recent of these "mega change[s]"5 came during the 1990s, when a number of states abandoned their existing presumptive closure statutes and mandated IMAGE FORMULA8that juvenile delinquency proceedings6 be held in the open for the press and the public to see.7

The policy reviews of this development have been mixed. Some commentators criticize the recent trend, asserting that open proceedings enervate the juvenile system's ultimate goal of rehabilitating wayward youths.8 Others laud the new openness, arguing that closure no longer serves the rehabilitative ethic,9 or that young offenders need to be held accountable to the body politic for their increasingly violent and adult-like wrongs against society.10 This Note also praises the trend toward openness, but it takes a different tack than do these commentators; it suggests, as the United States Supreme Court suggested in Oliver, that if a person's liberty is at stake, public scrutiny is the only "tolerably efficient check" IMAGE FORMULA10

against potential abuse or malfunction of the adjudicative It argues that, aside from the states' policy-based reasons for abandoning presumptive closure statutes, serious due process problems inhere in presumptive closure schemes. Thus, this Note does not concern itself with the states that have recently overturned their presumptive closure statutes; it instead turns its attention toward the nineteen jurisdictions that retain theirs.12

This Note concludes that the nineteen remaining presumptive closure statutes l3 are unconstitutional because they violate the IMAGE FORMULA12

Due Process Clause of the Fourteenth Amendment. The argument proceeds in two major Parts. Part I lays the necessary factual groundwork for the case against the statutes by describing how they affect today's juvenile proceedings. Part II introduces and evaluates three separate-but related-constitutional challenges to the statutes. That is, it briefly acknowledges and rejects First Amendment and Sixth Amendment arguments, and it then raises a freestanding Fourteenth Amendment due process argument. 14 Part II suggests that, while both the First and Sixth Amendment arguments could reasonably be brought to bear on presumptive closure statutes,15 only the freestanding due process claim has a strong chance of succeeding under existing Supreme Court jurisprudence. 16 This Note concludes that the statutes are "fundamentally unfair" under that jurisprudence and can no longer withstand constitutional scrutiny. IMAGE FORMULA14


The typical presumptive closure statute provides that "the general public shall be excluded from hearings"17 unless the juvenile judge, in her sole discretion, finds a very good reason18 for allowing some level of access. This baseline of closure makes sense if one still accepts the juvenile justice system's original theories of rehabilitation and parens patriae,19 and if one believes that state legislatures likewise still accept them. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.