JUVENILE COURT LAW AND PROCEDURE

IN COLORADO

By James H. Pershing, Denver

FOREWORD

In December of 1923 the Executive Committee of the Colorado Bar Association requested the writer to make a study of the laws in force in Colorado relating to our juvenile courts, giving special attention to the administration of such laws, the results to be embodied in a report to the annual association meeting in 1924.1

The form of this paper, i. e., the method of presentation, has been determined largely by the motives which are said to have prompted the Executive Committee of the Bar Association to request its preparation. It is undoubtedly true that members of the Colorado Bar, as a class, have been slow to approve the principles upon which our juvenile court legislation has developed, and have exhibited considerable hostility to the procedure adopted by our courts, particularly the Denver Juvenile Court, in the administration of these laws. The subject will be presented under the following arrangement:2

1. The character and trend of recent legislation and judicial decision with respect to dependent or delinquent children.

2. The attitude of indifference or hostility frequently

1 The main source of material for this study has been the court organized and presided over by Judge Lindsey in Denver. When Judge Lindsey was appealed to for assistance he most graciously placed at the writer's disposal not only his court records and similar material, but also the personnel of his entire organization. Day after day was spent with Judge Lindsey and his associates in the hearing of causes and in the execution of judgments; thus testing principles in their actual operation.

2 A more logical arrangement of the subject would be the following:

1. The jurisdiction of the court over (a) delinquent children, (b) neglected children, and (c) dependent children as wards of the court. These terms are defined by the laws of Colorado: S. L. 1923 Chapters 75 and 77.

2. The jurisdiction of the court over adults contributing to juvenile delinquency or dependency.

3. The procedure involved.

But the intricate relations of dependency and delinquency, and the development of the law dealing with the same, render it impracticable for the purposes of this paper, to deal with the subject in accordance with such an outline. The student, however, should constantly keep in mind the distinction between dependency and delinquency, both with reference to causes and to remedial procedure.

assumed by members of the Bar toward this trend and some of the reasons therefor.

3. Certain problems presented by our present-day social organization and some reasons which call for new instruments of social control.

4. Juvenile court legislation in Colorado: An analysis of twenty-one statutes.

5. The form of judicial or administrative procedure suggested by the problems of juvenile dependency and delinquency. 6. Subjects of remedial legislation.

Any serious discussion of the juvenile court laws of Colorado must have for its foundation at least some understanding of the principles underlying such legislation. These principles are not new; while in some instances they have been greatly extended, their source is in the common law and the juvenile court should be looked upon as a growth in legal theory and not as a departure therefrom.

In order to afford an approach to this study of Colorado law, two cases from other jurisdictions are cited in which the courts have taken pains to formulate the principles upon which juvenile court legislation and procedure have developed. The first of these is Commonwealth vs. Fisher (213 Pa. St. 48; 62 Atl. 198), arising under the Pennsylvania Juvenile Court Act of April 23, 1903 (P. L. 274), and decided in 1906, at a time when there was a considerable body of decision derived from cases in other jurisdictions. The case was exhaustively treated and the opinion has been extensively cited and quoted in the numerous subsequent cases throughout the country as an authoritative exposition of the constitutional position of courts of this nature.

In a proceeding conducted in the court of quarter sessions of the County of Philadelphia under an act entitled, "An Act defining the powers of the several courts of quarter sessions of the peace, within this commonwealth, with reference to the care, treatment and control of dependent, neglected, incorrigible and delinquent children, under the age of sixteen years, and providing for the means in which such power may be exercised," Frank Fisher was committed by that court to the House of Refuge. From the order of commitment an appeal was taken to the Superior Court, which affirmed the order (Commonwealth vs. Fisher, 27 Pa. Sup. Ct. 175). That judgment was reviewed by the Supreme Court of Pennsylvania, Mr. Justice Browne delivering the opinion of the court, from which the following is taken:

In pressing the objection that the appellant was not taken into custody by due process of law, the assumption, running through the entire argument of the appellant, is continued, that the proceedings of the act of 1903 are of a criminal nature for the punishment of offenders for crimes committed, and that the appellant was so punished. But he was not, and he could not have been without due process of law, for the constitutional guaranty is that no one charged with a criminal offense shall be deprived of life, liberty or property without due process of law. To save a child from becoming a criminal, or from continuing in a career of crime, to end in maturer years in public punishment and disgrace, the Legislature surely may provide for the salvation of such a child, if its parents or guardian be unable or unwilling to do so, by bringing it into one of the courts of the state without any process at all, for the purpose of subjecting it to the state's guardianship and protection. The natural parent needs no process to temporarily deprive his child of its liberty by confining it in his own home, to save it and to shield it from the consequences of persistence in a career of waywardness, nor is the state, when compelled as parens patriae, to take the place of the father for the same purpose, required to adopt any process as a means of placing its hands upon the child to lead it into one of its courts. When the child gets there and the court, with the power to save it, determines on its salvation, and not its punishment, it is immaterial how it got there. The act simply provides how children who ought to be saved may reach the court to be saved. If experience should show that there ought to be other ways for it to get there, the Legislature can, and undoubtedly will, adopt them, and they will never be regarded as undue processes for depriving a child of its liberty or property as a penalty for crime committed.

The last reason to be noticed why the act should be declared unconstitutional is that it denies the appellant a trial by jury. Here again is the fallacy, that he was tried by the court for any offense. "The right of trial by jury shall remain inviolate," are the words of the Bill of Rights, and no act of the Legislature can deny this right to any citizen, young or old, minor or adult, if he is to be tried for a crime against the commonwealth. But there was no trial for any crime here, and the act is operative only when there is to be no trial. * * The act is not for

the trial of a child charged with a crime, but is mercifully to save it from

such an ordeal, with the prison or penitentiary in its wake, if the child's own good and the best interests of the state justify such salvation. Whether the child deserves to be saved by the state is no more a question for a jury than whether the father, if able to save it, ought to save it. If the latter ought to save, but is powerless to do so, the former, by the act of 1903, undertakes the duty, and the Legislature, in directing how that duty is to be performed in a proper case, denies the child no right of a trial by a jury, for the simple reason that, by the act, it is not to be tried for anything. The court passes upon nothing but the propriety of an effort to save it; and if a worthy subject for an effort of salvation, that effort is made in the way directed by the act. The act is but an exercise by the state of its supreme power over the welfare of its children, a power under which it can take a child from its father, and let it go where it will, without committing it to any guardianship or any institution, if the welfare of the child, taking its age into consideration, can be thus best promoted.

The most recent case illustrating the character of the Juvenile Court development is Cinque vs. Boyd, decided by the Supreme Court of Errors of Connecticut on June 1, 1923, 121 Atl. 678. The case arose on an application for writ of habeas corpus by Louis Cinque against Edward S. Boyd, Superintendent of the Connecticut School for Boys at Meriden, Connecticut, the plaintiff alleging illegal detention of his son, Michael Cinque. The facts of that case pertinent to this discussion were as follows:

Michael Cinque, a minor of fourteen years of age, was arrested by the New Haven police and charged by them with having aided and abetted another boy or other boys in taking from the person of a man said to be under the influence of liquor a small sum of money, said to be about $2.50. Michael Cinque was then complained against by the City Attorney for the City of New Haven in a petition under which the boy was brought before the Juvenile Court for the City of New Haven, being a court established by virtue of and pursuant to Chapter 336 of the Public Acts of Connecticut of 1921. At the hearing on the petition, Judge Jacob Caplin of the Juvenile Court, adjudged the boy a delinquent as defined by the act establishing the Juvenile Court, and at the conclusion of the hearing the boy was committed to the Connecticut School for Boys at Meriden. From that judgment the father gave notice of appeal to the Court of Common Pleas and tendered bail for the appearance of his son before the appellate court. Bail was refused and thereupon the father undertook to secure the discharge of his son by writ of habeas corpus. For the

guidance of the court below, certain questions were reserved for the advice of the Supreme Court of Errors upon an agreed statement of facts fully set forth in the opinion of the court. The questions reserved for the consideration of the Supreme Court of Errors so far as pertinent to this discussion, were as follows:

Whether or not chapter 336 of the Public Acts of 1921, pursuant to which Michael Cinque was purported to have been committed and confined in the Connecticut School for Boys at Meriden, is constitutional and valid, with special reference to these particulars, to-wit:

(a) That it denies the right of bail.

(b) That it does not permit the accused to be confronted by the witnesses against him.

(c) That it denies the protection of the same rules of evidence that are followed in all other cases.

(d)

That it denies the right of a trial by jury.

(e) That it provides for the detention of a person committed in a penal institution, although there is no conviction against him for any crime.

(f) That it discriminates unjustly and unreasonably between localities in the same state, because juvenile courts are established in some jurisdictions and not in others.

(g) That it states in too broad and inclusive and unreasonable manner the definition of the term "delinquent."

And whether or not pending the disposition of the said appeal the said Michael Cinque can be held without bail.

And whether or not the said writ of habeas corpus shall be maintained or dismissed.

The opinion of the Supreme Court of Errors of Connecticut was delivered by Mr. Justice John E. Keeler. This paper sets forth an extensive quotation from the opinion because the act establishing juvenile courts in the State of Connecticut is one of the most complete of recent laws upon the subject and the opinion of the court construing the law is the latest and one of the most comprehensive declarations upon the subject. Mr. Justice Keeler, after stating the facts above, continues:

The contentions of the plaintiff in this case are concerned with the constitutionality or the validity otherwise of chapter 336 of the Public Acts of 1921, which is entitled "An Act concerning juvenile courts." The purpose of the act is to provide for the proper care, custody, education, and rearing of children under the age of 16, who are dependent, uncared for, neglected, defective, or delinquent. Dependent children are defined in the act as those having a suitable home, but who, because of the poverty of parents or other persons maintaining such home, are in need of care; uncared for children are defined as those who are homeless, or whose home is unsuitable for other reasons than poverty, and who may not support themselves except in occupations which are illegal, or which would subject them to conditions prejudicial to their normal development, physically, mentally, or morally; neglected children are defined as those who, unable lawfully to support themselves, have been abandoned, or