A fracture has developed in the South Carolina Supreme Court’s once solid stance against juvenile jury trials.
In July, the court’s five justices held that underage defendants are not entitled to be tried by a jury in family court, despite language in the state’s 150-year-old constitution that says everyone has the right to a jury trial.
Less than a month after the court unanimously ruled on In the interest of Stephen W., two of its justices – Donald Beatty and Kaye Hearn – ruled on Aug. 6 in a virtually identical matter that juveniles should be allowed to transfer their cases from family court to general sessions, where adult defendants are tried in front of juries.
“Under the plain terms of our state constitution, a juvenile charged with a criminal offense has an absolute right to a jury trial,” Beatty wrote in the opinion In the Interest of Kevin R. “Although the General Assembly may prohibit a juvenile from exercising this right in juvenile adjudications, it cannot legislatively eliminate the right in its entirety.”
Justice John Kittredge had concluded in the Stephen opinion that the state’s more modern juvenile justice code trumps the constitution. The code prohibits jury trials for defendants who are younger than 17, unless they are charged with serious crimes, such as murder.
Before the code existed, juveniles were routinely tried in front of juries. But the adjudication process in today’s family court “is not of a like nature or similar to the manner in which juveniles were criminally charged at the time the Constitution was enacted,” Kittredge wrote.
Beatty suggested in the most recent opinion that giving juveniles the option to be tried as adults so they can have juries decide their guilt or innocence, rather than leave the decision up to family court judges, would reconcile the “apparent tension” between the constitution and the juvenile code.
But young defendants who opt to be tried as adults would be venturing down a risky path, leaving behind the protections of the family court for the benefit of having a jury. If convicted, they would be sent to an adult prison.
That’s not what appellate defender Susan Hackett had in mind when she argued for juvenile jury trials on behalf of Kevin and Stephen. She wanted it both ways – for juveniles to have jury trials in family court without being exposed to adult punishments.
“I don’t know that too many people are going to take this opportunity to waive up [to general sessions]. So I don’t know if anything has really changed,” said Hackett, who works for the South Carolina Commission on Indigent Defense in Columbia.
“I think we may still be at the status quo, where we were before.”
‘Would be guilty of malpractice’
Beatty and Hearn now stand on one side of the divide over juvenile jury trials. Chief Justice Jean Toal declined to join them in declaring that underage defendants have the option of being tried as adults, as did Justices John Kittredge and Costa Pleicones.
While Toal disagreed with Beatty’s position, Kittredge and Pleicones refused to reach the issue because they said it was not before the court. The majority only agreed that juveniles are not entitled to jury trials in family court, affirming the earlier decision in Stephen’s case.
“What survived is the echo of Stephen W.,” said John Nichols of Bluestein, Nichols, Thompson & Delgado in Columbia. He and two other lawyers filed an amicus brief in Kevin’s case on behalf of the South Carolina Association for Justice, South Carolina Association of Criminal Defense Lawyers and the Lawyers Committee for Children’s Rights. They argue that jury trials will promote more reliable fact finding in the state’s family courts.
Nichols added that the issue of letting juveniles decide whether they want to be tried as adults is “still very alive and well.”
“What’s left is to take that part of Justice Beatty’s opinion in Kevin R. and push the issue and get a ruling at trial,” he said. “Set the issue up appropriately and then have Beatty and Hearn, who we already know support the notion, and Pleicones and Kittredge address the issue on the merits.”
But how many young defendants will be willing to blaze that trail – and how many lawyers would allow a client to take such a gamble?
“Here’s what you’re buying: You get a jury trial, but you’re exposed to an adult sentence for many, many years,” said Jay Elliott of Columbia, who took the lead on the amicus brief. “As one colleague of mine said, ‘Anybody who did that would be guilty of malpractice.’ ”
‘That’s nuts’
The court’s opinion in Kevin’s appeal contains another significant difference from the ruling in Stephen’s case, one that could spur the legislature to change a law requiring juveniles to register as sex offenders for the rest of their lives.
Hackett and other likeminded lawyers and legal experts argue that juveniles should have the benefit of jury trials because the collateral consequences of being adjudicated as a delinquent can be severe and long lasting.
They say juvenile records can interfere with attempts to join the military, apply for college or qualify for housing. And youngsters who are found to have committed sexual crimes in South Carolina face lifetime sex offender registration.
“You have two 12-year-old kids playing doctor and one ends up having to register as a sexual offender for the rest of his or her life?” Elliott said. “That’s nuts.”
In a footnote in Kevin’s opinion, Beatty nudged legislators to change the law so the repercussions of adjudication in family court for a sex offense dissolve when an offender reaches the age of 21.
“Although the issue is not before the Court, we note the inconsistent positions of the General Assembly to limit the negative civil parameters of adjudication proceedings but permit the consequence of adjudication to continue for the lifetime of one who is adjudicated delinquent for a sex offense,” he wrote.
While Beatty’s footnote is dictum, Nichols predicted that his message would spur a constitutional challenge to the lifetime registration requirement. Elliott, meanwhile, said he was encouraged by what he perceived as a common thread woven through the Kevin and Stephen opinions.
“The recurring theme in both decisions is that the mission of the juvenile court is to be protective and rehabilitative,” he said. “It certainly hasn’t been like that for the last 20 years. Maybe now the trend will reverse.”
Digests of the 17-page opinion In re Kevin, Lawyers Weekly No. 010-090-14, and the six-page opinion In the interest of Stephen W., Lawyers Weekly No. 010-072-14, can be found at sclawyersweekly.com.
Follow Phillip Bantz on Twitter @SCLWBantz