Winburn, In Interest of

• Decision Date: 04 October 1966
• Citation: 32 Wis.2d 152,145 N.W.2d 178
• Parties: In the Interest of James Louis WINBURN, a child under 18 years of age. James Louis WINBURN, by Francis R. Croak, his Guardian ad Litem, Appellant, v. STATE of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 178

145 N.W.2d 178

32 Wis.2d 152

In the Interest of James Louis WINBURN, a child under 18

years of age.

James Louis WINBURN, by Francis R. Croak, his Guardian ad

Litem, Appellant, v. STATE of Wisconsin, Respondent.

Supreme Court of Wisconsin.

Oct. 4, 1966.

Francis R. Croak, Milwaukee, Grootemaat, Cook & Franke and David J. Hase, Milwaukee, of counsel, for appellant.

Bronson C. La Follette, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, Robert P. Russell, Corp. Counsel, and Hugh R. Braun, Asst. Corp. Counsel, Milwaukee, for respondent.

HEFFERNAN, Justice.

The fundamental question presented in this appeal is whether insanity constitutes a defense to an allegation of juvenile delinquency. We face the additional question in this case, of whether the mental inquiry initiated by the juvenile judge was a sufficient determination of insanity.

The state argues that a juvenile-delinquency procedure is not a criminal prosecution but is merely the state's exercise of its duties parens patriae over children--and that the duty of the state is not to prosecute but 'to bring them and their parents or guardians before an experienced and humane judge who shall inquire into the situation, not with the awe-inspiring and frigid methods of a criminal court, but informally and intimately, like a wise and gentle elder (Big?) brother, or like the good Samaritan of Holy Writ, and who shall, when fully advised do that which is best for the child's future, either by way of sending it to an institution or by providing for kind and tactful, but in no sense degrading, surveillance for a limited time at home.' State v. Scholl (1918), 167 Wis. 504, 509, 167 N.W. 830; and, accordingly, the armor of 'rights' that can be donned by a defendant in a criminal case is not available to the alleged delinquent. There is much to support this point of view. Our statutes clearly point out that the judicial determination of juvenile delinquency is not a criminal conviction. This court has frequently reiterated this point of view. State v. Scholl, supra, 167 Wis. 504, 167 N.W. 830; In re Fish (1945), 246 Wis. 474, 17 N.W.2d 558.

The entire philosophy of the children's code is avowedly the antithesis of criminal prosecution.

'For the delinquent child, the aim of the court is to correct, re-educate, re-direct, and rehabilitate, rather than to punish or to seek retribution for misdeeds.' Wisconsin Handbook for Juvenile Court Services, p. 2.

The juvenile law is not to be administered as a criminal statute, and the rules of criminal procedure are not to be engrafted upon the children's code. In re Alley (1921), 174 Wis. 85, 90, 182 N.W. 360; State v. Zirbel (1920), 171 Wis. 498, 499, 177 N.W. 601. State v. Scholl, supra, pointed out that a child had no right to a trial by jury though the effect of the proceeding was to send him to an institution. There are many indications in the statutes that the framers of the act did not consider it a criminal code:

'48.01(3) * * * The best interests of the child shall always be of paramount consideration * * *.'

'48.25(1) * * * The presence of the child in court may be waived by the court at any stage of the proceeding.' ¹

'48.25(3) * * * customary rules of evidence applied to issues of fact in civil trials shall be followed. The finding of fact shall rest on the preponderance of evidence * * *.'

'48.25(6) * * * If any child or his parents desire counsel but are unable to employ it, the court in its discretion may appoint counsel to represent them. * * *'

'48.38(1) No adjudication upon the status of any child in the jurisdiction of the juvenile court shall operate to impose any of the civil disabilities ordinarily imposed by conviction, nor shall any such child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction.'

The burden of the state's argument then is that, since this is not a criminal action, the child is not entitled to the usual safeguards of the criminal law. The validity of this position has long been questioned. While the avowed purpose of the children's code is that 'the test interests of the child shall always be of paramount consideration,' there is doubt that the strictly civil approach to the problem accomplishes that purpose This was recognized by the child welfare committee of the Wisconsin Legislative council, which in its 1955 report to the legislature said that 'There has been criticism that in certain areas, because the juvenile court does not follow traditional procedures, the rights of the child are diminished rather than increased.' P. 30. A recent commentary on our juvenile court system by Professor Joel F. Handler of the University of Wisconsin Law School reported criticism that our juvenile courts on a nationwide basis represented 'unfettered official discretion.' He pointed out that '* * * the system allows intervention by the government into the affairs of people without their consent and without standards and controls.' Handler, The Juvenile Court and the Adversary System, 1965 Wisconsin Law Review, p. 7.

The Supreme Court of the United States in Kent v. United States (1966), 383 U.S 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, recognized the parens patriae theory of juvenile rehabilitation, but went on to recognize the abuses that arise almost inherently from that philosophy:

'The state is parens patriae rather than prosecuting attorney and judge. But the admonition to function in a 'parental' relationship is not an invitation to procedural arbitrariness.

'2. Because the State is supposed to proceed in respect of the child proceeding as parens patriae and not as adversary, courts have relied on the premise that the proceedings are 'civil' in nature and not criminal, and have asserted that the child cannot complain of the deprivation of important rights available in criminal cases. It has been asserted that he can claim only the fundamental due process right to fair treatment. For example, it has been held that he is not entitled to bail; to indictment by grand jury; to a speedy and public trial; to trial by jury; to immunity against self-incrimination; to confrontation of his accusers; and in some jurisdictions (but not in the District of Columbia, see Shioutakon v. District of Columbia, 236 F.2d 666 (C.A.D.C.Cir.) (1956), and Black v. United States, supra) that he is not entitled to counsel.

'While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults. There is much evidence that some juvenile courts, including that of the District of Columbia, back the personnel, facilities and techniques to perform adequately as representatives of the State in a parens patriae capacity, at least with respect to children charged with law violation. There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.' (383 U.S. 554, 86 S.Ct. 1054)

The United States Supreme Court did not take upon itself the burden of dealing with each issue that it raised, but it did decide specifically in Kent that a child was entitled to counsel as a matter of right at the 'critically important' hearing on the waiver of the juvenile court's jurisdiction in favor of the United States District Court. In a broader sense, the Supreme Court, though concluding that the juvenile hearing in question need not conform with all of the requirements of a criminal trial or even of the usual administrative hearing, stated, '(W)e do hold that the hearing must measure up to the essentials of due process and fair treatment.' (Emphasis supplied.) (383 U.S. 562, 86 S.Ct. 1057)

The philosophy behind the juvenile act is rehabilitation and treatment, but what may appear to a juvenile worker or judge as treatment may look like punishment to the juvenile. Irrespective of what we call the juvenile procedure, and no matter how benign and well intended the judge who administers the system, the juvenile procedures, to some degree at least, smack of 'crime and punishment.' While the primary statutory goal is the best interest of the child, that interest is, as it should be, conditioned by the consideration of 'the interest of the public.' Sec. 48.01(3), Stats. The interest of the public is served not only by rehabilitating juveniles when that is possible, but the interest of the public is also served by removing some juveniles from environments where they are likely to harm their fellow citizens. Retribution, in practice, plays a role in the function of the juvenile court. The judgments of juvenile courts do serve as deterrents to the conduct of at least a segment of our juvenile society, not because those juveniles fear rehabilitation, but because they fear incarceration and punishment. Despite all protestations to the contrary, the adjudication of delinquency carries with it a social stigma. This court can take judicial notice that in common parlance 'juvenile deliquent' is a term of opprobrium and it is not society's accolade bestowed on the successfully rehabilitated. It is common knowledge also that juvenile records do not, in fact, have a confidential status. Peace officers' records may be communicated to school authorities and to other law enforcement agencies. The Federal Bureau of Investigation has no difficulty in ascertaining whether an individual has a juvenile record. A juvenile record may be a substantial handicap to one who seeks employment with the United States Government. The confidentiality of records, even if kept inviolate, is no real safeguard to the ex-delinquent for, if asked whether he was ever so...