dissenting:
The dual responsibility of the Illinois courts to juveniles is not an accident of history. It is the result of a considered movement in this country to remove juveniles from the adult criminal system. Nowhere is the responsibility stated more clearly than in the Juvenile Court Act itself.
“This Act shall be administered in a spirit of humane concern, not only for the rights of the parties, but also for the fears and the limits of understanding of all who appear before the court.” Ill. Rev. Stat. 1977, ch. 37, par. 701 — 2(2).
The parens patriae concept embodied in the Juvenile Court Act authorizes wide discretion to the court in dealing with juvenile problems. Because the trial judge observes the witnesses and parties and is in a position to discern subtleties which are not found in a sterile record, the trial judge’s decisions on discretionary matters will only be stricken by appellate courts in cases of abuse. The judge in the proceedings below displayed a lack of understanding of the meaning of parens patriae and the policies and purposes of the Juvenile Court Act. Instead of a mindful consideration for the spirit of law, the trial court, as evidenced by his comments throughout, viewed the proceedings in much the same light as a criminal prosecution.
“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.” B. Cardozo, The Nature of the Judicial Process 141 (1921).
Since the first juvenile court was established in Chicago in 1899, the State of Illinois has made a conscious determination that juvenile proceedings shall not be geared towards striking fear into the hearts of our youth or toward punishing adolescents for behavior which is substantially less than ideal but rather the proceedings shall recognize that juvenile problems arise from an unsatisfactory environment and that if placed within a proper environment many undesirable characteristics and problems will be resolved to the benefit of the child, its family and society. (In re Carson (1973), 10 Ill. App. 3d 384, 295 N.E.2d 740.) Such benefit is long range. Punishment or “revenge” is counterproductive, and, at most, short range in benefit.
The Act is not blind to the fact that for some juveniles a physically restrictive environment is necessary, but it is manifestly clear that a detention disposition of a child adjudicated a delinquent should not be freely or frequently employed. It should be used only upon a mature and studied finding that other dispositional alternatives will not serve the best interests of the child and the public and a finding that the parents are unfit or unable to provide the proper environment for the child. Ill. Rev. Stat. 1977, ch. 37, par. 705 — 10(1).
At the admonition hearing, which was the respondent’s first appearance on this matter, the trial judge clearly indicated in the following comments that he was predisposed to place the respondent to the Department of Corrections.
“THE COURT: * * 6
Mr. [S], let me suggest to you, I don’t know what your previous experience has been in juvenile court, but you’re in front of a different judge now. I lock people up who violate the laws of The State of Illinois. * * * In the event however the State meets its burden of proving you guilty beyond a reasonable doubt of any of these charges, your behavior between now and November 2nd will be of major consideration by me. If you get into further trouble between now and November 2nd do you understand that?
MINOR RESPONDENT: Yes.
The Court: In the event you do, and in the event the State proves you guilty of this charge, when you come to court on November 2, bring your toothbrush, because I am going to lock you up. Do I make myself clear?” (Emphasis added.)
It is indeed difficult to characterize the trial judge’s comments at this early stage of the proceedings simply as warnings or threats, as does the majority. The trial judge unequivocably stated that he would “lock the respondent up” if the State proved him guilty of the charge, and if there was further trouble. Moreover, it is inconceivable that the majority could tolerate such a blatant predisposition by the trial judge. Such a personal sentencing policy by the trial judge as is evident here has been rejected by the supreme court because of its inconsistency with the concept of proper sentencing procedures. (People v. Bolyard (1975), 61 Ill. 2d 583, 338 N.E.2d 168.) Bolyard speaks to a criminal proceeding. This is a civil matter, and juvenile at that.
At the adjudicatory hearing on the third petition, the trial judge again manifested his predisposition by the following comments:
“THE COURT: 0 e *
I want you to understand you have the burden now of convincing me if I release you back on the streets there is not going to be this sort of thing occurring again. I don’t know how you are going to meet that, but you had better think about it. Because I think I owe it to the citizens of this community to have you locked up behind bars where you are simply removed from society, and the people in the schools can be protected from this kind of conduct. 6 * *” (Emphasis added.)
Again, the majority characterizes these comments as merely a lecture or warning to the respondent rather than any indication of a predisposition by the trial judge. Perhaps one such isolated comment at a hearing could be overlooked. However, these comments cannot be disregarded since the trial judge consistently stated in these two hearings that he would put the respondent behind bars.
Finally, at the dispositional hearing, the trial judge analogized the charges in the delinquency petition, which are equivalent to Class A misdemeanors, to Class 4 and Class 2 felonies.
“The Court: • • *
His total disregard for the concern and for the rights of others was best demonstrated by his action at the school, which as I have indicated, sounds on paper like a minor offense, but is in my judgment one of the most serious things that has come across this desk. It’s a far more serious offense than many of the thefts and burglaries and other things of this kind where someone has broken into some car and taken out a tape deck. It’s far more serious, not just because of what occurred, but because of where it occurred, e o * Or to put it another way, they will be free from molestation by thugs such as this minor respondent, 0 * *.
I don’t see any reason why I should have any sympathy for this minor respondent. And I frankly don’t. # e *” (Emphasis added.)
From this comment it is evident that the trial judge incorrectly viewed this proceeding as a criminal prosecution. Moreover, in considering the specific charges in the petitions, it is obvious that the charges can hardly be compared to the serious offenses of felonies mentioned.
The State in its brief argues that the respondent’s prior misconduct was properly considered and was such as to warrant the disposition imposed. The record does reflect that this juvenile has been before the juvenile court in Champaign County several times. In 1972, at age 11, he apparently took a toy truck from a residence and was required to return it. In 1973, at age 12, there was a “station adjustment.” The nature of the conduct is not disclosed. In 1974, in an action described as theft, it appears that the respondent took two packs of gum from an Eisner’s store. He was then 13 years old. The record is not exactly clear, but it appears that a 1977 petition alleging burglary from a motor vehicle was filed but was ultimately dismissed by the State. The other appearances relate to the conduct with which we are here concerned.
The ultimate error at the dispositional hearing was the trial judge’s gratuitous and hopefully meaningless comment that the respondent should remain in the Department of Corrections until age 21 — a period of over four years. Had the respondent been tried as an adult criminal and convicted, the maximum sentence that could have been imposed would have been one year. Should the trial judge’s recommendation be followed, this juvenile will be punished more severely than an adult convicted of the same offense.
As noted previously, it is not the purpose and policy of the Juvenile Court Act to threaten and intimidate respondents. Rather, the purpose is to administer the Act in a spirit of humane concern affording at least same procedural rights to juveniles as those afforded to adult offenders.
It is clear to me that the dispositional hearing was but an empty formality. The disposition had been determined.
Accordingly, I would vacate the disposition and remand this cause for a dispositional hearing before a different judge.