Debacker v. Brainard/Dissent Black

Mr. Justice BLACK, dissenting.

For the reasons set forth herein and in the dissenting opinion of my Brother DOUGLAS, I dissent and would reverse the judgment below.

In February 1968 appellant, who was then 17 years old, was charged under the laws of Nebraska with being a 'delinquent child' because he had a forged bank check which he intended to use for his own purposes. At the hearing on this charge he asked for a jury trial, arguing that this was a right guaranteed him by the Sixth Amendment to the Constitution and that a statute prohibitng juries in 'delinquency' proceedings was therefore unconstitutional.

This Court in In re Gault, 384 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), held that juveniles charged with being 'delinquents' as a result of committing a criminal act were entitled to certain constitutional safeguards-namely, notice of the issues involved, benefit of counsel, protection against compulsory self-incrimination, and confrontation of the witnesses against them. I can see no basis whatsoever in the language of the Constitution for allowing persons like appellant the benefit of those rights and yet denying them a jury trial, a right which is surely one of the fundamental aspects of criminal justice in the English-speaking world.

The Court here decides that it would not be 'appropriate' to decide this issue in light of DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968). That case held that the Sixth Amendment right to a jury trial-made applicable to the States in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)-did not apply in state proceedings held prior to May 20, 1968. Mr. Justice Douglas and I dissented in that case as we have in every case holding that constitutional decisions would take effect only from the day they were announced. I think this doctrine of prospective-only application is nothing less than judicial amendment of the Constitution, since it results in the Constitution's meaning one thing the day prior to a particular decision and something entirely different the next day even though the language remains the same. Under our system of government such amendments cannot constitutionally be made by judges but only by the action of Congress and the people. Depriving defendants of jury trials prior to Duncan violated the Constitution just as much as would similar deprivations after that decision, yet this Court treats these equal deprivation with clearly unequal justice. I cannot agree to such refusals to apply what appear to me to be the clear commends of the Constitution.