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Impact of high court decision on pretrial jailing of juveniles

The US Supreme Court's decision to allow states to jail a juvenile without bail pending trial - if a judge decides there is a risk that the accused may commit a crime if not in custody - could be a significant landmark in the administration of juvenile justice in the United States.

The high court's 6-to-3 decision in a New York case is considered a major setback by civil libertarians and children's rights advocates. They say the nation's court and criminal justice system should afford minors the same constitutional protections given to adults.

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In a landmark 1967 case, In Re Gault, the Supreme Court affirmed that ''neither the 14th Amendment nor the Bill of Rights is for adults alone.'' However, over the years, the US legal system has also held that juvenile criminals need special treatment as well as protections in order to help rehabilitate them. Emphasis, for the most part, has been on healing rather than punishment.

In Monday's decision, Associate Justice William H. Rehnquist, writing for the majority of the court, stressed that pretrial or preventive detention for juveniles, as practiced by New York (and in over 20 other states), is not intended as punishment.

The court's majority - in reinstating a New York law struck down by a lower tribunal - also said that the state has the power, in some instances, to act in place of a parent. In these instances, insists Justice Rehnquist, the state's aim is to ''promote the welfare and development of the child'' as well as to protect society.

This reasoning is challenged in a dissenting opinion by Associate Justice Thurgood Marshall, who said that ''pretrial detention of a juvenile . . . gives rise to injuries comparable to those associated with imprisonment of an adult. In both situations, the detainee suffers stigmatization and severe limitation of his freedom.''

Justice Marshall also rejected Justice Rehnquist's characterization of preventive detention as ''merely a transfer of custody (of a juvenile) from a parent or guardian to the state.'' He further argued that there is a risk that an innocent juvenile will be jailed by mistake.

The decision in the New York case raises the question of whether the US Supreme Court in the future may extend the concept of ''preventive detention'' to adults. Now only Nebraska and Washington, D.C., detain adult criminal defendants before trial on this basis - and they do so sparingly. The practice has been subjected to legal challenges in both jurisdictions.

However, the situation is vastly different for juveniles. Most states have statutes that allow courts to detain youths before a trial if the court sees a danger that a youthful defendant may commit a crime while awaiting trial. Traditional statutes that permit judges to set bail at an amount that assures a defendant will return to stand trial are often set aside.

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Supporting the New York juvenile law were attorneys-general from 24 states. They argued that youth crime is rampant and that the need for community protection outweighs some individual liberties denied to defendants. But the state law enforcement officers stressed, as did Justice Rehnquist in his majority decision, that they still considered due process and constitutional protections of juveniles paramount.

However, in friend-of-the-court briefs, children's rights groups, including the National Juvenile Law Center, the Youth Law Center, and the National Legal Aid and Defender Association, all warned of overuse of detention of minors before a trial. And most held that many state laws and standards pertaining to juveniles do not adequately protect individual rights.

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