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2. In re Winship[119]

Samuel Winship was a twelve-year-old boy who had stolen $112 from a woman's pocketbook.[120] The state petitioned the family court to have Samuel declared a juvenile delinquent[121] and sent to training *349 school. The family court adjudged the minor a delinquent, and was affirmed in a memorandum decision.[122] The New York Appeals Court reviewed the decision in light of the requirements of In re Gault. The court held that while a juvenile proceeding need not afford the procedural protections of a criminal trial, the juvenile must be afforded the essentials of due process and fair treatment.[123]
The New York Appeals Court sought to uphold the New York law by distinguishing Gault on substantive and procedural grounds. The procedural argument was twofold: first, delinquency proceedings in the Family Court are not criminal proceedings;[124] second, in contrast to Gault, which involved a proceeding with no procedural safeguards,[125] New York did afford minors reasonable procedural protections.[126] The substantive argument was based on a parens patriae approach to juvenile proceedings:
The Judge, acting as a mature and well-balanced parent, tries to find the answer to the child's trouble; and only if all else fails and there is no other recourse, does he commit the child to any institution, and even then he tries to find the one best suited to the child's needs and having the fewest punitive policies.[127]
The New York Appeals Court concluded that the paternalistic New York Family Court Act was distinguishable from the punitive and procedurally flawed Arizona law at issue in Gault,[128] and upheld the determination that Samuel Winship was a delinquent.[129]
The United States Supreme Court took the appeal to review the narrow question of whether the due process requirements announced in Gault mandated that the facts in a juvenile delinquency proceeding be proven beyond a reasonable doubt.[130] The Court's decision was predetermined by the question it sought to answer: Does Gault hold that it is *350 the fact of locking a person up, rather than the label on the detention, that is determinative of the necessary standard of proof?[131]
The Winship Court began its opinion with a lengthy discussion of the historical basis for the "beyond a reasonable doubt"' standard of proof in criminal prosecutions.[132] Besides the weight of history, the Court identified two other reasons for requiring the "beyond a reasonable doubt"' standard in criminal prosecutions. First, the Court noted the almost uniform acceptance of the standard in common law jurisdictions.[133] Although the Court stopped short of adopting jurisprudence by survey, it said that "such adherence does 'reflect a profound judgment about the way in which law should be enforced and justice administered."'[134] The Court's second basis for accepting the "beyond a reasonable doubt"' standard was a risk calculus previously articulated in Speiser v. Randall.[135]
There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value--as a criminal defendant his liberty--this margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first instance, and of persuading the fact finder at the conclusion of the trial of his guilt beyond a reasonable doubt.[136]
The core of the decision in Winship is the Court's acceptance of the Gault standard that regulatory confinements are constitutionally indistinguishable from punitive incarcerations. Referring to Gault, the Winship Court said:
We made clear in that decision that civil labels and good intentions do not in themselves obviate the need for criminal due process safeguards in juvenile courts, for "[a] proceeding where the issue is whether the child will be found to be 'delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.[137]
Having established the critical role of the "beyond a reasonable *351 doubt"' standard in criminal prosecutions,[138] the Winship Court's equation of juvenile proceedings with felony prosecutions mandates the application of the "beyond a reasonable doubt"' standard in juvenile proceedings.[139]
Ultimately, the bases for the majority's decision later provided the foundation for other courts to undermine Winship's holding. In particular, the Winship majority's reliance on jurisprudential majoritarianism[140] put the holding in a tenuous position. Although it is true that most, if not all, jurisdictions require the "beyond a reasonable doubt"' standard in criminal prosecutions, it is also true that most jurisdictions do not regard civil detentions as equivalent to criminal prosecutions.
In addition, the Court's assumption that liberty is a transcendent value, i.e., one that cannot be set off by the state's interest in a conviction, irreversibly shifts the balance of risk in favor of the defendant. Yet balancing risks is fundamental to the right of societal self-defense that underlies both traditional public health jurisprudence and the jurisprudence of prevention. Because balancing risks is so fundamental, the Court in subsequent prevention cases adopted the Winship formulation. Unlike the Winship Court, these courts did not find the defendant's liberty transcendent. By increasing the weight allocated to society's interest in preventing harm, these courts used a balancing of risks to justify not providing full criminal due process protections in the same circumstances where the Gault and Winship Courts would have mandated them. Thus, the decline of precedent established by the Gault and Winship decisions paved the way for the Court's jurisprudence of prevention.

[119] 397 U.S. 358 (1970).
[120] W. v. Family Court, 24 N.Y.2d 196, 247 N.E. 2d 253, 257 (1969).
[121] A minor could be found to be a juvenile delinquent if he or she committed an act which, if done by an adult, would constitute a crime. 247 N.E.2d at 255.
[122] In the Matter of Samuel W., 291 N.Y.S. 2d 1005 (1968) (mem.).
[123] W. v. Family Court, 247 N.E.2d at 255-56.
[124] Careful and fully explicit safeguards, however, are provided in the statute to insure that an adjudication of this kind is not a "conviction"' (s 781); that it affects no right or privilege, including the right to hold public office or to obtain a license (s 782); and a cloak of protective confidentiality is thrown around all the proceedings. (ss 783-84).
W. v. Family Court, 247 N.E.2d at 256.
[125] Gault, 387 U.S. at 5.
[126] W., 247 N.E.2d at 257.
[127] Id. at 254.
[128] "The decision in Gault, in which there was almost a total absence of due process, is not necessarily to be read as an interdiction of this standard of proof required by the New York statute."' Id. at 257.
[129] Id. at 258.
[130] "This case presents the single, narrow question whether proof beyond a reasonable doubt is among the 'essentials of due process and fair treatment' required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult."' Winship, 397 U.S. at 359.
[131] "In effect the Court of Appeals distinguished the proceedings in question here from a criminal prosecution by use of what Gault called the 'civil label-of-convenience which has been attached to juvenile proceedings."' Id. at 365 (citations omitted).
[132] Id. at 361-64.
[133] Id. at 362.
[134] Id. at 361-62 (citation omitted).
[135] 357 U.S. 513 (1958).
[136] Id. at 525-26.
[137] Winship, 397 U.S. at 365.
[138] "Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction, except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for which he is charged."' Id. at 364.
[139] "In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault."' Winship, 397 U.S. at 368.
[140] ]. See, e.g., Bowers v. Hardwick, 478 U.S. 186 (1986):
Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western Civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. . . . The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816 the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching. This is essentially not a question of personal "preferences"' but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.
Id. at 196-97 (Burger, C.J., concurring).

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