McKeiver v. Pennsylvania/Concurrence Harlan

Mr. Justice HARLAN, concurring in the judgments.

If I felt myself constrained to follow Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), which extended the Sixth Amendment right of jury trial to the States, I would have great difficulty, upon the premise seemingly accepted in my Brother BLACKMUN's opinion, in holding that the jury trial right does not extend to state juvenile proceedings. That premise is that juvenile delinquency proceedings have in practice actually become in many, if not all, respects criminal trials. But see my concurring and dissenting opinion in In re Gault, 387 U.S. 1, 65, 87 S.Ct. 1428, 1463, 18 L.Ed.2d 527 (1967). If that premise be correct, then I do not see why, given Duncan, juveniles as well as adults would not be constitutionally entitled to jury trials, so long as juvenile delinquency systems are not restructured to fit their original purpose. When that time comes I would have no difficulty in agreeing with by Brother BLACKMUN, and indeed with my Brother WHITE, the author of Duncan, that juvenile delinquency proceedings are beyond the pale of Duncan.

I concur in the judgments in these cases, however, on the ground that criminal jury trials are not constitutionally required of the States, either as a matter of Sixth Amendment law or due process. See my concurring and dissenting opinion in Duncan and my separate opinion in Williams v. Florida, 399 U.S. 78, 118-119, 90 S.Ct. 1893, 1915-1916, 26 L.Ed.2d 446 (1970).

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice MARSHALL concur, dissenting.