Print Issue Volume 96 - No. 6

Note, Juveniles Locked in Limbo: Why Pretrial Detention Implicates a Fundamental Right

At the birth of the juvenile court, reformers attempted to develop a system that melded child welfare concerns with crime control. Despite the founders’ original intentions, however, the juvenile court system has moved away from the therapeutic model to a punitive model.  The increasingly punitive nature of the system warrants a second look at the due process safeguards courts afford—or do not afford—juveniles.  The Kansas Supreme Court recently held, based on the increasingly punitive nature of the juvenile justice system, that juveniles should have a constitutional right to a jury trial. This decision analogously provides support for the argument that juveniles deserve more due process safeguards at the point of pretrial detention.

The Note argues that courts should recognize that the ability to contest pretrial detention is a fundamental right, protected by the Due Process Clause of the Constitution. The Note critiques the reasoning behind Schall v. Martin, the decision that failed to recognize that the pretrial detention of juveniles implicates a fundamental right. It examines the language of current state statutes permitting the pretrial detention of juveniles. The author advocates that in light of the increasingly punitive nature of the system, all juveniles should be afforded greater procedural safeguards including the right to contest pretrial detention. The Supreme Court should grant the same procedural safeguards that adults enjoy to juvenile offenders.  The recognition that physically detaining juveniles implicates a fundamental right will lead to the creation of national guidelines and criteria for detainment.  Stricter guidelines will reduce the number of juveniles in pretrial detention.  This will alleviate the burden on state resources and foster the development of diversionary programs. These measures will help the juvenile justice system return to its rehabilitative underpinnings.


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