THE SUPREME COURT AND JUVENILE JUSTICE by Christopher P. Manfredi.
Lawrence: University Press of Kansas, 1998. xv + 256 pp. Cloth $35.00. ISBN 0-7006-0851-6.

Reviewed by Stephen L. Wasby, University at Albany-SUNY, and University of Toronto. E-mail: Stephen Wasby <cis.bissell@utoronto.ca>
 

Christopher Manfredi, a thorough and effective story-teller, has provided a tale of important litigation which is a major substantive contribution for those interested in the juvenile courts. It is also a good teaching book which joins Cortner's A MOB INTENT ON DEATH as one of relatively few books tracing the course of criminal procedure litigation in which interest groups were involved.

Yet, frustratingly, this book fails to make a notable social science contribution. The reason is that, while Manfredi discusses well several important strands of literature --judicial capacity, interest group litigation, and Packer's models-- in his first chapter, he returns to them "too little, too late" in his last chapter. The interest group literature, for example, may have affected the choice of the story that is told, but the author does not make explicit analytical use of it during the story.

Once past preliminaries, Manfredi provides a thorough history, based on an even-handed appreciation of juvenile court proceedings, of the development of the juvenile court movement, from its early incarnation, through model legislation, to skepticism and second thoughts about the rehabilitative ideal and the effect of the post-World War II growth of juvenile crime, on to the verge of the transformation brought by the Supreme Court.

The book's core is three chapters, one on KENT v. UNITED STATES (1966) and two on IN RE GAULT (1967). Here Manfredi tells a fascinating story very well. He presents KENT as an "unexpected opportunity" for reformers to challenge an aspect of adjudications of juveniles. However, the case is not, as Manfredi first calls it, an "ordinary exercise in statutory interpretation" (p. 53), but is about due process within statutory interpretation. After looking at juvenile justice in the District of Columbia, Manfredi shows the relationship of the KENT case to the DURHAM "product" criminal responsibility test and law professor Richard Arens, who was attempting to study and implement DURHAM, when legal aid referred Kent to his project. We also see the case shift, only after Kent's conviction in adult court, "from an insanity-defense test case to a juvenile procedure challenge" (p. 63). (Interestingly, Justice Fortas, some of whose comments in KENT were precursors of his better-known observations in GAULT, did not focus on the insanity defense aspect he had as a lawyer argued to Judge David Bazelon.)

The GAULT narrative begins with juvenile justice in Arizona, followed by Gerald Gault's juvenile proceeding and subsequent court action. GAULT did not start as an "ACLU case," but ACLU involvement stemmed from a less experienced attorney's call to a more experienced lawyer engaged in ACLU work, who asked for the group's assistance. Of particular note in the ACLU's internal process are, first, the broadened argument by Gault's attorney in the Arizona Supreme Court; second, ACLU general counsel Melvin Wulf's pushing the appeal notice toward a privacy issue; and third, the ACLU's filing a jurisdictional statement even after being told that GAULT was not the best case for raising the issues of greatest concern to the ACLU. We also learn the specifics of brief-writing strategy and amicus participation, which the ACLU helped arrange and coordinate.

An additional chapter deals with IN RE WINSHIP (1970), the standard-of-proof case and the last one based on selective incorporation of constitutional rules into juvenile adjudication; McKEIVER (1971), which rejected jury trials in juvenile proceedings and marked the shift to a fundamental fairness approach; and the double jeopardy case of BREED v. JONES (1975). Also receiving very brief notice are FARE v. MICHAEL C. (1979) and SCHALL v. MARTIN (1984), defeats for the claims made on behalf of juveniles.

Manfredi turns from the narrative to a concise examination of their effects on the juvenile courtroom, reform movement, and state legislation. Viewing the Supreme Court as a catalyst for legislative change, he draws on impact studies to show low compliance with the GAULT requirements and discusses the variety of new standards developed for juvenile proceedings and the procedural change which was accompanied by increased punitiveness, not what justices or reformers might have expected or wished.

Manfredi attempts to cast his study as one of "institutional reform litigation," which he discusses initially with particular attention to Phillip Cooper's stages of litigation and to Donald Horowitz's COURTS AND SOCIAL POLICY. Yet the Cooper stages are never applied and the author returns to Horowitz's argument about judicial capacity only briefly. Attempting to view efforts to reform the juvenile courts as institutional reform litigation is problematic. While the juvenile court system is an institution in the broad sense, it is not the type of entity usually meant in "institutional reform litigation" --a mental hospital, set of state prisons, or large urban school district-- which judges are accused of micromanaging (and which they did not in Manfredi's story). To make litigation to reform juvenile court procedures into "institutional reform litigation" is to stretch the concept too far because it is not conceptually useful to treat any (and all) litigation affecting a social institution in those terms. That changes in juvenile court procedure came at the hands of legislature--which, in a democracy, one expects to be promulgator of policy change-- more than at the courts' hands makes the fit of juvenile court change with "institutional reform litigation" even more awkward.

The book's principal analytical deficit stems from the failure to return to relevant literature until the last chapter. This strategy has left Manfredi, like many other authors, with several problems in constructing that chapter. One is that analysis is compressed and underdeveloped by comparison with the treatment that should have been offered throughout the narrative. Discussion of interest group litigation, for example, is crammed into a little more than three pages (at pp. 181-185). Analysis, at a considerable distance from the story, is also separated from its foundation, leading both to failure to develop generalizations the narrative might support and to making assertions not matched with story elements.

Although it is not clear, Manfredi seems to use planned litigation campaigns as his measure of interest group litigation despite the reality that much interest group-related litigation is not part of such campaigns and the reality that juvenile justice litigation was part of broader reform efforts, not solely dependent on litigation. It should thus not be surprising that the ACLU and other organizations were not involved in KENT and GAULT "from the creation." Nor should it surprise that, as with much criminal justice litigation in which interest groups get involved, neither case began life as a test case, but like the many constitutional criminal procedure cases that became landmarks of which Jonathan Casper wrote in LAWYERS BEFORE THE WARREN COURT, started as defense attorneys' efforts to overturn their clients' convictions with whatever arguments they could muster. (Likewise, as Cooper showed in HARD JUDICIAL CHOICES, some major institutional reform cases did not start as such.)

KENT and GAULT also illustrate that the issues initially central to a case are often not central at its climax. But Manfredi neither discusses (nor even mentions) issue-transformation and issue-fluidity nor applies the analysis that flows from them, thus missing an opportunity. He does suggest the related point that the Supreme Court engages in "avoidance" by stating issues in narrow legal terms, but doesn't provide evidence to show that the Court intentionally did so in these cases, much less that they did it as a response to their own limited fact-finding capacity (p. 194).

A brief first-chapter mention of judicial decision-making literature is expanded to a broader, worthwhile discussion of vote patterns and the effects of judicial attitudes (at pp. 185-189). Those attitudes do make a difference in case outcome, but Manfredi claims but doesn't show their relevance for case-selection. Moreover, he provides no support for the assertion, "The Court ... tends to select cases not because they reflect the complexity of difficult policy issue but because they facilitate relatively easy choices" (p. 185).

Manfredi does not use Horowitz directly in his last chapter beyond noting that, counter to Horowitz's critique, the Supreme Court did draw on policy concerns (p. 191), but in pursuing his belief in the inadequacy of information the courts used (see pp. 192-193), Manfredi does rely on sources which have staked out a Horowitz-like position critical of courts' capabilities to absorb information.

My view is that, in failing to follow up Horowitz's argument, Manfredi has done his readers and himself a favor. Despite the frequency with which it continues to be cited --although now overtaken by Rosenberg's far better-grounded THE HOLLOW HOPE-- Horowitz' argument is replete with a priori overstatement and is supported by inadequate and unsystematic anecdote, and it is thus a weak read on which to rest. And Manfredi does seem to commit some Horowitz-type errors. For example, in his general critique of the courts, Manfredi seems to confuse inherent problems in adjudication with the effects of an imbalance of parties' resources, which, while empirically present, is not inherent in adjudication. Likewise, if judges' rulings on challenges to juvenile court procedure did not see the juvenile court as the "institutional centerpiece of a complex and integrated system" (p. 178), that was not a deficit in the judiciary's inherent decision-making patterns but resulted instead from the fact that those challenging its practices didn't buy into that notion. A similar misstep comes when Manfredi says that procedural victories led lawyers to focus on juvenile courts rather than on other institutions. Apart from the ease with which one can engage in such second-guessing, Manfredi does not consider that the ACLU, at the center of the challenge to juvenile court adjudication, is an organization primarily interested in procedure? What else would one expect it to attack?

When Manfredi notes that policy change came from legislatures, he makes no criticism of legislative decision making comparable to that made of the judiciary. This is part of the Horowitz-like tendency to criticize judges without blaming legislators and bureaucrats for also dealing with policy in less-than-optimal ways, for example, only dealing with parts of larger problems as constituents present those problems. If one responds, "But he was only writing about the judiciary," the reply is, "If something is bad, it is bad compared to what?"

Ironically and fortunately, because Manfredi does keep his limited explicit analysis to the last chapter, the problems just noted have no effect on the story that is told, and THE SUPREME COURT AND JUVENILE JUSTICE is well worth reading for that alone. The reader can learn something --indeed, much-- and can apply various theories to his or her heart's content.