Should children who commit crimes be processed as criminals? One might argue that Minnesota has formally answered this as no. The juvenile justice system operates with procedural rules that are distinct from adult criminal law. A criminal complaint does not begin a juvenile case; instead the case initiates with a petition. The title and procedures associated with a petition suggest that the purpose is not to enforce the power of the state or its people collectively, but to best seek the welfare of the child. Officially, youth cannot be convicted, only adjudicated as delinquent.
Yet behind the curtain, Minnesota’s answer to this question, unfortunately, has been yes. In significant ways, there is little distinction between the prosecution of juvenile crimes and the prosecution of adult crimes. The same elected county attorney is responsible, abstract notions such as victims’ rights and public safety considerations are given primacy, and guilt can lead to criminal offender registration requirements and are tabulated for criminal history scores.
The contradictory internal dynamics of juvenile justice are reflected in case law. For instance, juveniles accused of crimes have the constitutional right to a lawyer, as well as the same Fourth and Fifth Amendment constitutional protections as adults. However, juveniles have not been granted the right to a jury, much less a jury of one’s peers. One can claim that youth are not sent to prison in Minnesota. But one can only do so honestly if unfamiliar with the Red Wing placement facility for juveniles. Red Wing is identified in statute as a correctional facility and, as such, is operated by the Department of Corrections and supervised by a warden. Yet, so as to obscure its true nature, it presents its work as consisting of “treatment, education, and transition services.” In a nutshell, the Red Wing facility has a contradictory status as something that must self-identify as a treatment center while functioning semi-openly as a prison.
If not a prison, what can Red Wing tell us about its treatment, education, and transition services? What can other out-of-home placements, ones not run by the Department of Corrections, share about the accomplishments of their treatment, education, or transitional and supportive services? Those to which probation recommends, prosecution argues for, and the judge orders?
Community-oriented public defenders, such as at the Legal Rights Center (“LRC”), do not know the answers to these questions because, to date, juvenile courts have not allowed them to be seriously posed. Community-oriented public defenders have demanded that juvenile out-of- home placements carry the burden of providing some evidentiary basis that they serve the welfare of youth. Unfortunately, there is de facto disinterest within the juvenile system for examining the evidence-basis of its own chosen course. Instead, the default is that certain facilities and pro- grams are the exclusive tools provided by the state or county and are presumed to be beneficial when: (1) a victim has been, or could have been, substantially harmed; or (2) past responses in juvenile court have been in- effective in preventing new incidents.
For juveniles, as well as adults, Minnesota is a state that is relatively low on the national scale for the number of people behind bars, however, it is rather high on punitive sentencing that incorporates probation super- vision. The general rule is the same, even when out-of-home placement is not contemplated: probation has no burden of proving the evidentiary basis for its chosen course, which may be limited to a few options selected to be government funded for the purpose of such referrals. In addition, the default remains that the authoritarian aspect of court and the power of its sanctions, both imposed and threatened, is applied without evidence of particular value. This is true even for lesser offenses. In Hennepin County, such punishment is applied most often through forced labor, like picking up trash, in a program euphemistically named: Sentence to Serve.