In re G.O.

JUSTICE HEIPLE, dissenting:

Someone once posed the following hypothetical question to Abraham Lincoln. “If you call a tail a leg, how many legs does a dog have?” Lincoln answered, “Four. Calling a tail a leg doesn’t make it one.” In a similar vein, calling delinquency proceedings at which a juvenile could be sentenced to multiple years in the Department of Corrections noncriminal doesn’t make it so.

In the case at hand, the State filed a petition to adjudicate G.O., a 13-year-old juvenile, delinquent based on charges of first degree murder, aggravated discharge of a firearm, aggravated battery and aggravated battery with a firearm. The trial court denied G.O.’s request for a jury trial and adjudicated G.O. delinquent on all charges. The trial court declared G.O. a ward of the court and, under the sentencing provision in the Juvenile Court Act for first degree murder, committed G.O. to the Department of Corrections, Juvenile Division, until his “21st birthday, without the possibility of parole, furlough, or non-emergency authorized absence for a period of 5 years.” See 705 ILCS 405/5 — 33(1.5) (West 1996).

The appellate court reversed, holding the failure to provide G.O. with a jury trial violated his right to equal protection because the General Assembly provides jury trials for juveniles charged as either violent or habitual juvenile offenders which carry similar mandatory minimum sentences. The majority reverses and holds that G.O. does not have a constitutional right to a jury trial because the mandatory minimum sentencing provision for first degree murder was declared unconstitutional in People v. Cervantes, 189 Ill. 2d 80 (1999) (holding Public Act 88 — 680, which contained the sentencing provision for first degree murder, violated the single subject clause of the Illinois Constitution). The majority concludes that Cervantes resolves G.O.’s constitutional challenge to the denial of his request for a jury trial. 191 Ill. 2d at 43. I disagree. G.O. has a right to a jury trial under article I, section 8, of the Illinois Constitution even if he is not subject to the mandatory minimum sentence in section 5 — 33(1.5) of the Juvenile Court Act. Therefore, I respectfully dissent.

Article I, section 8, of the Illinois Constitution of 1970 provides that “[i]n criminal prosecutions, the accused shall have the right to *** a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.” Ill. Const. 1970, art. I, § 8. Delinquency proceedings have all the hallmarks of a criminal prosecution. The basis of the charge of delinquency is the commission of a criminal offense, and, if found delinquent, a juvenile can be incarcerated in the Department of Corrections until he is 21 years old. 7 This is a classic case of crime and punishment.

In past decisions, this court has emphasized that delinquency proceedings are not criminal in nature because the overriding concern of these proceedings is rehabilitation, not punishment. See, e.g., In re Beasley, 66 Ill. 2d 385, 389 (1977); In re W.C., 167 Ill. 2d 307, 320 (1995). The prior analysis on this issue is flawed, however, because it relied on an outmoded characterization of the juvenile justice system. Much has changed in the last three decades since the United States Supreme Court refused to extend the right to a jury trial to juvenile delinquency proceedings on the grounds that the jury trial “will remake the juvenile proceeding into a fully adversary process and will put an effective end to what has been the idealistic prospect of an intimate, informal protective proceeding.” McKeiver v. Pennsylvania, 403 U.S. 528, 545 , 29 L. Ed. 2d 647, 661 , 91 S. Ct. 1976, 1986 (1970). Rehabilitation no longer occupies its once preeminent status in the juvenile justice system; punishment and public safety are now the juvenile justice system’s overriding concerns. The statement of purpose and policy in the Illinois Juvenile Court Act evinces this shift:

“It is the intent of the General Assembly to promote a juvenile justice system capable of dealing with the problem of juvenile delinquency, a system that will protect the community, impose accountability for violations of law and equip juvenile offenders with competencies to live responsibly and productively. To effectuate this intent, the General Assembly declares the following to be important purposes of this Article:

(a) To protect citizens from juvenile crime.

(b) To hold each juvenile offender directly accountable for his or her acts.

(c) To provide an individualized assessment of each alleged and adjudicated delinquent juvenile, in order to rehabilitate and to prevent further delinquent behavior through the development of competency in the juvenile offender.” 705 ILCS 405/5 — 101 (West 1998).

Rehabilitation remains an important aspect of the juvenile justice system, but the same is true of the adult criminal justice system. 8 However one chooses to characterize the purpose of the juvenile justice system, the fact remains that “the incarcerated juveniles’ liberty *** is restrained just as effectively as that of the adult inmates serving terms in State and Federal prisons.” In re Urbasek, 38 Ill. 2d 535, 541 (1967).

In addition to this shift in fundamental purpose, virtually all of the constitutional requirements of an adversary criminal trial have been imported into juvenile delinquency proceedings. These requirements include the right to adequate notice of charges, the right to counsel, the privilege against self-incrimination and the right to confront and cross-examine witnesses. In re W.C., 167 Ill. 2d at 320-21 . Moreover, the State must prove delinquency beyond a reasonable doubt. In re Urbasek, 38 Ill. 2d at 541-42 . In fact, juveniles have “all the procedural rights of adults in criminal proceedings” except the right to a jury trial. 705 ILCS 405/5 — 101(3) (West 1998); see also 705 ILCS 405/5 — 605(1) (West 1998) (“All delinquency proceedings shall be heard by the court except those proceedings under this Act where the right to trial by jury is specifically set forth”).

The majority rejects G.O.’s argument that juveniles have a constitutional right to a jury trial in delinquency proceedings under the Illinois Constitution, holding such an argument is foreclosed by this court’s decision in In re Fucini, 44 Ill. 2d 305 (1970). Fucini, however, is distinguishable because that case interpreted the jury trial provision under the 1870 Constitution, which has no bearing on the issue in this case. In Fucini, the juvenile challenged the General Assembly’s failure to provide a right to a jury trial in delinquency proceedings under the jury trial provision in the Illinois Constitution of 1870, which stated that “[t]he right of trial by jury as heretofore enjoyed, shall remain inviolate.” (Emphasis added.) Ill. Const. 1870, art. II, § 5. The Fucini court reasoned that the juvenile was not entitled to a jury trial because the common law, at the time of the adoption of the 1870 Constitution, did not provide for such a right. Fucini, 44 Ill. 2d at 310 , citing Lindsay v. Lindsay, 257 Ill. 328 (1913). The holding in Fucini has no bearing on G.O.’s argument in this case because the jury trial provision in the 1970 Constitution, unlike its analogue in the 1870 Constitution, does not require that the right to a jury trial exist at common law prior to 1870. 9

In Beasley, the court implied .that recognizing a juvenile delinquency proceeding as a criminal prosecution would lead to the abandonment of the intimate, informal protective proceeding of the juvenile justice system altogether. In re Beasley, 66 Ill. 2d at 390 . This fear was unwarranted when Beasley was decided in 1977, and it is even more so now. The incorporation of virtually every aspect of criminal procedure (except the jury trial) into juvenile proceedings has not undermined the justification for separate adult and juvenile justice systems. Moreover, the right to a jury trial has already been incorporated into the juvenile justice system for certain specific offenses. See 705 ILCS 405/5 — 815(d), 5 — 820(d) (West 1998) (providing right to jury trial for habitual and violent juvenile offenders). The failure to provide the right to a jury trial in delinquency proceedings should not be treated as a method of shielding the juvenile defendant from the adult criminal justice system. Rather, it should be recognized that most attributes of the adult criminal justice system are already permanent features of the juvenile justice system. A juvenile, no less than an adult, is entitled to the protection of a jury trial when faced with incarceration in the Illinois Department of Corrections. The failure to provide a jury trial should be seen for what it truly is: an anachronism and a denial of equal justice for all.

For the reason stated above, I respectfully dissent.

Since Public Act 88 — 680 was declared void ah initio in People v. Cervantes, 189 Ill. 2d 80 (1999), G.O. must be sentenced under section 5 — 33 of the Juvenile Court Act (705 ILCS 405/5 — 33 (West 1992)). Section 5 — 33 provided:

“(1) When any delinquent has been adjudged a ward of the court under this Act, the court may commit him to the Department of Corrections, Juvenile Division, if it finds that (a) his parents, guardian or legal custodian are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor, or are unwilling to do so, and the best interests of the minor and the public will not be served by placement under Section 5 — 29; or (b) it is necessary to ensure the protection of the public from the consequences of criminal activity of the delinquent.

(2) The commitment of a delinquent to the Department of Corrections shall be for an indeterminate term which shall automatically terminate upon the delinquent attaining the age of 21 years unless the delinquent is sooner discharged from parole or custodianship is otherwise terminated in accordance with this Act or as otherwise provided for by law.” 705 ILCS 405/5 — 33 (West 1992).

Section 5- — 33 was subsequently repealed by Public Act 90 — 590, effective January 1, 1999. Whether G.O. is subject to the mandatory minimum sentence for first degree murder (705 ILCS 405/5— 33(1.5) (West 1996)) reenacted by Public Act 90- — 590 is not properly before this court. 191 Ill. 2d at 43-44.

Notably, even the adult criminal justice system espouses rehabilitation as one of its primary goals. Article I, section 11, of the Illinois Constitution of 1970 states that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Emphasis added.) Ill. Const. 1970, art. I, § 11.

The Illinois Constitution of 1970 retained the jury trial provision in article II, section 5, of the Constitution of 1870. See Ill. Const. 1970, art. I, § 13. Section 13, however, now applies solely to the right to a jury trial in civil cases and merely supplements the right to the jury tried in criminal cases contained in article I, section 8. ILCS Ann., 1970 Const., art. I, § 8, Constitutional Commentary, at 3 (Smith-Hurd 1997).