In Re Johnson

⁵¹⁹ Singley, J., delivered the opinion of the Court. This appeal challenges the constitutionality of Maryland Code (1957, 1966 Eepl. Vol.) Art. 26 §§ 51-71A, 91-101 (the Act) which creates a system of juvenile courts for the State of Maryland (other than Baltimore City and Montgomery County) 1 on the sole ground that the Act makes no provision for a jury trial. On 6 October 1967, Erwin J. Zmarzly, a special police officer, was attacked by some 14 youths on a parking lot adjacent to a Giant Food Store in Hyattsville, Maryland.

Zmarzly filed a petition in the Circuit Court for Prince George’s County, sitting as a juvenile court, against Thomas E. Johnson, then 14 years old, and three other boys. The petition simply alleged that Johnson was a “delinquent”, “in need of care and treatment” for the reason that Johnson “Did strike and kick the complainant about' the head and body.” At a preliminary hearing before the master, Johnson was advised of his right to be represented by counsel, and counsel was appointed. On 8 December, the matter again came on for hearing. Zmarzly testified that he noticed Mr. Johnson was on his right and was kicking him in the ribs.

Johnson admitted that he was at the scene, but denied striking Zmarzly at any time. Mutchler, one of the other respondents, testified that Johnson was at the scene but that Johnson did nothing but watch the fight. At the conclusion of the hearing, the master recommended that Johnson be found a delinquent and that final disposition be withheld, subject to further order of court. Johnson filed exceptions to the master’s report, and filed a motion for a jury trial which was denied prior to the hearing de novo in the circuit court and again at the hearing.

From orders denying the motion for jury trial and placing Johnson on probation for an indefinite period of time, this appeal was taken. ⁵²⁰ Maryland Constitution (1867), Declaration of Rights, Art. 5 provides: “That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth Day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity;* * *.” Art. 21 adds : “that in all criminal prosecutions, every man hath a right * * * to a speedy trial by an impartial jury * * *.” The Sixth Amendment to the Constitution of the United States (Art. VI, Bill of Rights) provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, * $1 % and the Fourteenth Amendment, § 1 adds: “* * * nor shall any State deprive any person of life, liberty, or property, without due pro- , cess of law; * * *.” Johnson’s court appointed counsel urged, with commendable earnestness in argument before us, and again in a brief which reflects his careful research, that the question which he raises has been foreshadowed by the decisions of the United States Supreme Court in Duncan v. Louisiana, 391 U. S. 145 , 88 S. Ct. 1444 , 20 L.Ed.2d 491 (1968) which overruled Palko v. Connecticut, 302 ⁵²¹ U. S. 319, 58 S. Ct. 149 , 82 L.Ed. 288 (1937) and held that the Sixth Amendment guaranty of trial by jury is binding on the states in serious offenses in the light of In re Gault, 387 U. S. 1 , 87 S. Ct. 1428 , 18 L.Ed.2d 527 (1967), holding that the Fourteenth Amendment requirement of due process is applicable to juvenile proceedings. The State argues with equal force that the Maryland Constitution offers no guaranty of a jury trial in juvenile cases, which by our statute are civil proceedings and not criminal prosecutions, and that acceptance of Johnson’s contention would call for an unwarranted extension of Duncan and Gault . The resolution of the issue is not without difficulty. Until the beginning of this century, Maryland made no distinction in regard to the manner in which criminal offenders, whether they be adults or minors, were tried.

All persons, regardless of age, had an absolute right to a jury trial for all but petty offenses. Maryland Constitution, Declaration of Rights, Art. 5, Art. 21; Danner v. State, 89 Md. 220 , 42 A. 965 (1889) ; In re Glenn, 54 Md. 572 (1880). “At common law, children were treated as persons. Children under the age of seven, it was held, were incapable of criminal intent and therefore could not be prosecuted for offenses. Children above that age were treated as adults.

They were given the same legal protections and the same punishments as adults. This system prevailed, with various modifications, in this country until the early part of the twentieth century. The constitutional guarantees were equally applicable to juvenile offenders and to adults. But then, a tidal wave of reform, put in motion by such persons as Judge Julian Mack and the leaders of the Jane Addams School, resulted in a national outcry against the resulting barbarism, as it appeared to them to be, of treating children and juveniles the same as ⁵²² adults.

So, in all the jurisdictions under the American flag, separate systems of courts and separate, sets of principles were devised for juveniles, usually including those up to eighteen years of age.” Fortas, Equal Rights — For Whom? 42 N.Y.U. L.Rev. 401 (1967) at 405-06. An early example of the “barbarism” to which Mr. Justice Fortas refers can be found in State v. Guild, 10 N.J.L. (5 Halst.) 163, 18 Am. Dec. 404 (S. Ct„ 1828) where the defendant, a 12 year old boy, was convicted of murder on his own uncorroborated confession and hanged.

The reform movement brought about the enactment of special statutory provisions for the handling of juvenile offenders. Illinois, which adopted its Juvenile Court Act in 1899, and was the first to embrace the reform, was followed by some 30 states within six years, and ultimately by all of the American states. The laws shared a common philosophy: 2 for the adversary system, there was substituted a sociologically oriented, completely informal proceeding, which had as its underlying concept the protection of the juvenile. Judges thought not in terms of guilt, but of the child’s need for protection or rehabilitation, under an extension of the doctrine of parens patriae, which had theretofore been invoked only in cases involving property rights or support.

No formal criminal charges were laid, rules of evidence were relaxed, psychiatric and psychological assistance was sought; many proceedings were not open to the public, and wide flexibility was allowed in the adoption of corrective measures. Such a system has developed in Maryland, commencing with the first tentative step toward reform taken by the passage of Ch. 611 of the Laws of 1902, which authorized the appointment in Baltimore City of a “Magistrate for Juvenile Causes” who “shall have exclusive jurisdiction ⁵²³ of all cases of trial, or commitment for trial, or of commitment to any reformatory or other institution, of all minors under sixteen years of age * * and provided for the appointment of unpaid probation officers. Under present law, original jurisdiction over all juveniles less than 18 years of age is vested in judges of the several circuit courts of the counties, sitting as juvenile courts, except in instances where juveniles commit an act punishable by death or life imprisonment, the Act, § 52 (e), Bean v. State, 234 Md. 432 , 199 A. 2d 773 (1964), on the one hand, or violate certain traffic laws, § 54, on the other. The Act, § 54, provides that the petition which initiates the proceeding must charge that the juvenile is a dependent child, a delinquent child, a neglected child, or a feeble-minded child. § 61 allows wide latitude in the adoption of corrective measures.

In its discretion, the juvenile court, under § 54, may waive jurisdiction if the child is charged with the commission of acts which would amount to a felony or misdemeanor if committed by an adult, so that the offender may be tried in the criminal courts. Superintendent of Md. State Reformatory for Males v. Calman, 203 Md. 414 , 101 A. 2d 207 (1953). Experience has shown that such a waiver is seldom prayed by the offender, but nearly always granted, if requested. By way of analogy, in Baltimore City, where the statute, § 242 Charter and Public Local Laws (Flack, 1949) gives the parent or guardian the right to elect a trial by jury, 3 the election is virtually never made. 4 The proceedings of a juvenile court are not criminal in nature and its dispositions are not punishment for crime. 5 § 61 (2) ; In re ⁵²⁴ Cromwell, 232 Md. 409 , 194 A. 2d 88 (1963).

While proceedings are informal, § 60, the rules of practice, of procedure, of evidence, and standards of fairness must be observed. In re Fletcher, 251 Md. 520 , 248 A. 2d 364 (1968) ; In re Cromwell, supra. In spite of the time, effort and money which have been expended on the development of mechanisms for the handling of juvenile causes, a wave of disenchantment has been developing for more than a decade — the result of public awareness that the increase in the number of juvenile offenses has been meteoric; 6 that the pattern of recidivism among juvenile offenders seems almost endemic, 7 and that there is substantial opinion that major revisions of the system are in order. 8 In 1966, in Kent v. United States, 383 U. S. 541 , 86 S. Ct. 1045 , 16 L.Ed.2d 84 , for the first time the Supreme Court took the opportunity to pass on the legality of juvenile court procedures. In Kent , the Court vacated an order of the District of Columbia Juvenile Court which had waived jurisdiction without granting a hearing or stating reasons.

See Paulsen, Kent v. United States: The Constitutional Context of Juvenile Cases, Supreme Court Rev. (1966) 147. It was against this background that In re Gault, supra, was decided. As we read the majority opinion in Gault , however, we realize that what was not decided is quite as significant as what was decided. What Gault did, in essence, was to hold that the Fourteenth Amendment standards of .due process are applicable to juvenile proceedings.

What the majority did not do was to say that all of the guarantees of the Bill of Rights need neces ⁵²⁵ sarily be applicable. Paulsen, Constitutional Domestication of the Juvenile Court, Supreme Court Rev. (1967) 233 at 246. Specific approval was given by the majority to the processing and treatment of juveniles separately from adults; to classifying a juvenile defender as a delinquent, rather than charging him as a criminal; to statutory provisions which stipulated that the adjudication of a child as a delinquent shall constitute neither a civil disability nor a disqualification for civil service appointment; to provisions intended to keep juvenile records confidential, and to the practice of conducting proceedings in an informal manner, all so long as the essentials of due process — fairness, impartiality and orderliness — are observed. Gault concludes: “In view of [the power of the juvenile court to commit] it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase ‘due process.’ Under our Constitution, the condition of being a boy does not justify a kangaroo court.

The traditional ideas of Juvenile Court procedure, indeed, contemplated that time would be available and care would be used to establish precisely what the juvenile did and why he did it — was it a prank of adolescence or a brutal act threatening serious consequences to himself or society unless corrected?” 387 U. S. at 27, 28 . In Gault , a 15 year old juvenile offender had been committed to custody for six years for an offense which, were he an adult, would have been punishable by a fine of from $5.00 to $50.00 or by imprisonment for not more than two months. The proceedings were tainted by a failure to notify the parents of the juvenile when he was taken into custody, to advise them of the charges, to inform the juvenile of his right to have counsel, of his privilege against self-incrimination, and of his right to be con ⁵²⁶ fronted by and to be accorded an opportunity to cross-examine the accusing witnesses, and the failure to provide counsel. It is quite unnecessary to point out that the situation in Gault was a far cry from that in the case at bar.

Only in the concurring opinion of Mr. Justice Black, do we find the proposition that the result in Gault should not have been grounded on a denial of due process alone, but rather on the broader base that the Bill of Rights’ safeguards, made applicable to the states by