When adults in the United States are arrested and charged with a crime, they have the right to be released on bail. The 8th amendment of the U.S. Constitution states that “excessive bail shall not be required, nor excessive fines imposed, or cruel and unusual punishments inflicted.” It is a right given to every adult offender no matter the age or nature of the offense. Furthermore, it preserves the presumption of innocence and prevents the infliction of punishment before conviction.
However, minors in juvenile court delinquency proceedings do not have the same constitutional rights as those given to adults—children were not guaranteed certain protections until 1960. In 1967, the Supreme Court formally recognized the constitutional rights of delinquent children in the landmark In re Gault case. Despite the 1967 ruling, state constitutions may legally deny juvenile offenders bail. The key reason is that they are on average tried in a civil court and are, therefore, not entitled to bail, which is only applicable to those charged with a criminal offense. Instead of being formally charged with a crime, juvenile offenders are accused of committing a delinquent act.
In the early 1700s, a focus on punishment, not rehabilitation, was the underlying philosophy in the justice system, as juveniles were often given harsh sentences and confined in adult institutions. Following appeals by religious groups in the 1800s, a parens patriae approach to juvenile justice focused on the welfare of the child by creating a benevolent and protective relationship between the state and the delinquent child. Parens patriae is a doctrine that grants judges of the state the inherent power and authority to protect persons who are legally unable to act on their own behalf.
In the case of Baker v Smith and State ex rel., parens patriae was interpreted such that a child’s detention may have the practical effect upon his freedom as does the confinement of an adult—the child’s confinement is for his own welfare. Baker v Smith and State ex rel. for juveniles was “the state merely exercising parental control.” Therefore, the state decides whether a juvenile will be granted bail, and the “right to bail” protected under the 8th Amendment does not apply.
In the Baker v Smith case, a 17-year old named J.W. Baker was brought before the juvenile court of Jefferson County Kentucky, on a petition charging that on September 7, 1971, he had committed a public offense consisting of malicious destruction of property. Baker was released under his parents’ care and control.
Baker was then re-arrested and charged with disorderly conduct on September 19, 1971. On his second arrest, Baker was placed in a detention center. Baker filed a motion for release on bail, but the juvenile court denied the motion based on its opinion that “release or granting of bail to the defendant at this time would not be in the best interest of the defendant.” After appealing the decision, it was determined that a child held in custody pending determination of proceedings in juvenile court is not a prisoner.
Several court cases have challenged the right to bail for youth offenders, but the courts have not been consistent in their rulings. The first and only court to recognize a state constitutional right to bail for juveniles was the Louisiana Supreme Court in State v. Franklin.
Those in favor of denying bail to juvenile offenders argue that money bail would not ensure the juvenile’s appearance at the adjudicatory hearing. They say that minors would have no interest in the money posted for their release, and there are no guarantees that they would not flee. The second argument in favor states that the right to be released would depend solely upon the economic status of the parents.
The same could be said, however, of adult offenders regarding bail. When an adult offender posts bail, there are no guarantees that the offender would appear at an adjudicatory hearing. The adult offender may not have any family ties or interest in the money. Also, the adult offender may flee from the jurisdiction of the court. In most cases, the adult offender’s ability to post bail may depend on the economic status of a family member.
The National Juvenile Defender Center, an organization working to change the juvenile bail system in the U.S., reports that only 19 states and U.S. territories have statutes or court rules that expressly allow for the use of bail with children in juvenile court. The states of New Jersey, Idaho, Indiana, Kentucky, and New Mexico prohibit the use of bail for juveniles. Additionally, 28 U.S. states neither prevent nor allow bail for juvenile offenders.
What is even more disturbing is that not all states have even specified a minimum age for criminal responsibility. This means that kids as young as six or seven could be arrested and held criminally responsible without the right to bail.
In the United Kingdom, the Right to Bail— under s. 4 of the Bail Act 1976—states that on each occasion that a person is brought before a court accused of an offense, or remanded after conviction for inquiries or a report, he must be granted bail without condition if none of the exceptions to bail apply. Unlike in the U.S., youth offenders in the UK are processed in a criminal court.
This means that juvenile offenders are guaranteed the right to bail. There are only three Youth Defendant tracks that may disqualify a juvenile offender a right to bail based on the Simple Bail Structure: Annex 4 – Indictable Only or Either Way Offence, Annex 5 – Summary Imprisonable Offence, and Annex 6 – non- imprisonable offense and remand provision.
When comparing the U.S. and UK, it is important to understand the main difference between the two countries’ juvenile court systems. The U.S. takes the approach of parens patriae, that is the protection of the child is in the best interest of the child. A juvenile offender’s criminal record is sealed, and, in some cases, the offender is released to their parent or guardian. The problem is when juveniles are not released, because, in doing so, it would cause harm to the “child.” In addition, juveniles may be held in detention centers for their protection or the protection of the state.
The UK, on the other hand, treats juvenile offenders with the same rights as an adult, and that includes the right to bail. The offender’s criminal record is not sealed and can be used against them in future proceedings.
In the U.S., legislators wrote laws to “protect the fetus” but cannot decide on whether a youth offender should be granted a right to bail. If the U.S. is to be considered a country that protects children and their fundamental rights, then it must apply the right to bail equally during juvenile proceedings.