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Juvenile defendants don’t have a constitutional right to a jury, the Georgia Supreme Court has ruled. That’s because when juveniles are ordered into restrictive custody it’s not for punishment, but for their own good, the court said. The case involves an unnamed juvenile defendant who challenged an order by Gwinnett County Juvenile Court Judge Stephen E. Franzen, placing him in restrictive custody for a year at a youth development center. Franzen found that the juvenile defendant had committed aggravated assault, a “designated felony” under O.C.G.A. Section 15-11-63. The juvenile’s lawyer, David L. Whitman of Lawrenceville, Ga., had argued that the section was unconstitutional because it deprives juveniles of the right to trial by jury. The statute, Whitman argued, “is designed to punish offenders and is substantially similar to a criminal proceeding.” Writing for the unanimous court in an opinion issued Monday, Justice Leah W. Sears disagreed with Whitman’s argument. The “central purpose” of the juvenile justice statutes “remains the rehabilitation and treatment of the child and not punishment,” Sears wrote. In Re: L.C., No. S01A0197 (Sup. Ct. Ga. dec’d June 11, 2001). FIVE-YEAR TERM The code section provides that when judges determine that a minor has committed one of a series of “designated felonies,” they must turn the child over to the Department of Juvenile Justice “for an initial period of five years.” Those five years must include confinement in a youth development center for “not less than 12 nor more than 60 months,” followed by 12 months of intensive supervision, according to the statute. Among the “designated felonies” are kidnapping, arson, racketeering and attempted murder. Sears relied on McKeiver v. Philadelphia, 403 U.S. 528 (91 SC 1976, 29 LE2d 647) (1970), and A.B.W. v. State, 231 Ga. 699 (203 SE2d 512) (1974), in formulating the court’s opinion. Those cases, the justice wrote, found that the juvenile justice system starts from a different set of premises than the adult justice system. The Georgia court’s ruling in A.B.W. v. State, wrote Sears, “emphasized that the goal of the juvenile system was rehabilitation and treatment and that an adjudication of delinquency was not considered a conviction of a crime.” In this case, the court recognized that juvenile criminal proceedings are in some respects punitive, but not sufficiently so to trigger the right to a jury trial. “Although O.C.G.A. 15-11-63 has some punitive aspects, one of its primary functions is the treatment and rehabilitation of the child and an adjudication under it is not a criminal conviction,” Sears wrote. “For these reasons we conclude that an order of restrictive custody under 15-11-63 is not sufficiently like a criminal adjudication to invoke a constitutional right to trial by jury.” Whitman did not return a phone message left at his office. PORTER: A FINE DISTINCTION Gwinnett District Attorney Daniel J. Porter, who argued for the state, says the court’s opinion may seem to make a fine distinction, but the juvenile system really is “aimed more at treatment than at punishment.” Says Porter, “There’s a whole array of differences.” Porter notes that many juvenile proceedings are closed, and many of the records sealed, to enable the system to assess the minor’s best interests out of the public spotlight. Setting up the right to a jury in cases involving designated felonies, he says, would jeopardize some of the protections juveniles enjoy. “I’m not sure they could keep it confidential at that point,” Porter says. He also says allowing juveniles to invoke a right to trial by jury would send court costs soaring. Porter says his circuit handles 4,000 to 5,000 juvenile cases annually. “The cost would be astronomical,” he says. Hall and Dawson County Juvenile Court Judge Cliff L. Jolliff, a former president of the Council of Juvenile Court Judges, agrees that the cost would be huge if the system allowed juveniles accused of felonies to demand a jury trial. While he appreciates the court’s rendering of what he calls the “subtle difference” between adult and juvenile proceedings, Jolliff says ordering a child into restrictive custody is certainly punitive in many ways. “In some respects it’s worse, because there’s no parole,” he says. When a judge finds a juvenile defendant “delinquent” and turns him over to the custody of the Department of Juvenile Justice, Jolliff says, that juvenile will spend the entire time in the detention center, with no possibility of parole. It doesn’t matter how well the child behaves while in custody, he says, or whether the child makes any progress. “This ain’t no picnic,” he says. “It’s not unlike, in some respects, adult incarceration.” Jolliff says that juvenile court judges really don’t have any more discretion than a jury would in making findings of fact and determining an appropriate sentence. Allowing the judge to make those decisions alone, he says, likely makes more efficient use of the judge’s training and knowledge of local resources. “Sometimes we wish we had a jury,” he says. “It is so difficult sometimes to determine who is telling the truth.”

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