Augustus E. Harvin v. United States

TAMM, Circuit Judge,

with whom Circuit Judges ROBB and WILKEY concur, and Circuit Judge J. SKELLY WRIGHT concurs in Parts I-IV, concurring in part and dissenting in part:

I concur in Judge MacKinnon’s conclusion that the appellant validly waived his right to a trial by jury. However, I cannot agree that either of the approaches suggested by Judge Fahy and Judge MacKinnon provides a statutory construction which will satisfactorily resolve appellant’s challenge to the practice of imposing sentence under the Federal Youth Corrections Act when the defendant was prosecuted by information rather than indictment. Moreover, even if I could be persuaded to accept one of these interpretations of the governing statutes, I do not believe that this case can be decided without undertaking a careful re-examination of the meaning of the phrase “infamous punishment” contained in the Fifth Amendment to the Constitution, when this standard is applied to Youth Corrections Act treatment.

I.

As I understand the positions taken by the other members of this panel, there is little doctrinal dispute concerning the content of the tests which the Supreme Court has traditionally applied in determining when the Fifth Amendment right to prosecution by indictment attaches. According to the cases cited in Judge Fahy’s opinion, the first principle guiding analysis of the present question is that the determination of whether a crime is infamous should be made by reference to the punishment which could be imposed under the relevant statutory provisions, rather than by reference to the penalty actually given in a particular case. Two aspects of the maximum possible punishment are significant in determining whether the crime is infamous within the meaning of the Fifth Amendment: (1) the nature of the punitive activity itself may be inherently infamous, as, for example, in the case of hard labor or corporal punishment; and (2) if the punishment is not by its nature infamous, then the duration and locus of confinement must be examined. Historically, the standard for infamous crimes applied pursuant to this latter inquiry has been whether the offense is punishable by confinement in a jail or penitentiary for more than a year. Finally, the cases make it clear that these principles are to be applied pragmatically rather than mechanically, with realistic appreciation of the manner in which a particular form of punishment is presently viewed by the community; as the Supreme Court stated in the leading case of Ex parte Wilson, 114 U.S. 417, 427 , 5 S.Ct. 935, 940 , 29 L.Ed. 89 (1885), “What punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another.”

II.

I have no doubt that the relevant sections of the Federal Youth Corrections *693 Act (FYCA) provide that a misdemean-ant can be confined for as long as six years, and that by their clear language these provisions, invest the Attorney General and the Director of the Bureau of Prisons with broad discretion to select the place of confinement — discretion which, on the face of the statute, does not exclude the possibility that a youth convicted of a misdemeanor and sentenced under the FYCA could be incarcerated in a penitentiary. By reference to some rather vague language in the legislative history and reliance on Congress’ generally benevolent purpose in enacting the Federal Youth Corrections Act, I cannot conclude that the provisions of the FYCA governing place of confinement and transfer are in fact conditional, and that, at least with respect to misdemean- or offenders prosecuted by information, they do not encompass the possibility of infamous incarceration.

I cannot agree that this result falls within the proper ambit of statutory construction. As will be developed more fully below, I believe that Congress’ emphasis on “treatment” rather than “punishment” in its consideration of the FYCA should serve as the starting point of our inquiry rather than the conclusion, and that it is a dangerous oversimplification to say that the legislative history merely demonstrates a Congressional purpose to provide “milder” or “less harsh” treatment for youthful offenders. Enactment of the FYCA was not motivated solely by a vague desire to be nice to wayward children; Congress was much more pragmatic than that. The primary theory behind the decision to treat young offenders differently was the belief that the behavior patterns of the young can be altered more easily, and that society should be protected by eradicating antisocial behavior before the offender’s personality hardens. This much is clear from the legislative history as a whole, as well as from the definition of treatment contained in 18 U.S.C. § 5006 (g) (1964).

In addition, there is a practical difficulty inherent in Judge Fahy’s interpretation of the Act which arises primarily from the vagueness implicit in the term “treatment.” From my reading of the majority opinion, it is not precisely clear to me what test is to be applied in determining what kind of FYCA confinement is mandated under the Fifth Amendment when the prosecution was initiated by information. At one point the opinion asserts that a sentence imposed under the FYCA must be carried out “in an institution where the confinement is consistent with the purpose of the Act to afford treatment and rehabilitation” and that the confinement must not be “of a character which constitutes infamous punishment.” Since it is common knowledge that many correctional facilities which are “designed” to rehabilitate actually do quite the opposite, I interpret this language to mean that the institution in which a youth sentenced under the FYCA is confined must not only be designed for treatment and rehabilitation, it must in fact provide these benefits. If this is the test which Judge Fahy intends to enunciate, I believe he should state it explicitly because the Act itself offers scant guidance in determining what types of confinement are permissible under its provisions. Section 5006(g) merely states that “ ‘treatment’ means corrective and preventive guidance and training designed to protect the public by correcting the antisocial tendencies of youth offenders,” This language, I believe, could just as easily be employed to describe the purpose of admittedly infamous punishment such as penitentiary confinement; after all, virtually every institution in our correctional system offers at least lip service to the rehabilitative ideal. In defining the perimeters of a constitutional right, we should be scrupulous to avoid uncritical and unexplicated reliance upon a nebulous word like “treatment” which can be used too easily to mask a lack of knowledge as to how particular varieties of human behavior can be changed or improved, or to obscure the fact that insufficient resources for our correctional in *694 stitutions often render the promise of therapy illusory.

This concern is of practical as well as theoretical significance because of earlier holdings which certainly suggest that youth offenders like appellant have a right to treatment and, presumably, a right to judicial relief if they are confined under conditions which are “infamous” or not sufficiently “rehabilitative.” Cf. In re Gault, 387 U.S. 1 , 22-23 n. 30, 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967); Creek v. Stone, 126 U.S.App. D.C. 329, 379 F.2d 106 (1967). If the legislative history of the Act provides a firm basis for distinguishing between FYCA treatment and the incidents of infamous punishment, then these factors ought to be set forth with precision and clarity; at least, I see no advantage in postponing consideration of this problem until future cases arise. Construing the FYCA in this fashion necessarily imposes on the courts the task of reviewing administrative decisions concerning the post-adjudicatory handling of youth offenders — an area in which the Supreme Court has been careful to avoid imposing restrictive rules in all of its cases concerning the rights of juvenile offenders, from Gault 1 through Winship 2 — and if this duty should be undertaken at all, it should be discharged in the manner which is least disruptive and burdensome for both the courts and the correctional officials.

III.

Judge MacKinnon’s approach seeks to avoid these difficulties by applying 18 U.S.C. § 4083 as an exception to the broad administrative discretion conferred by the FYCA. I do not believe that this interpretation comports with the purpose or design of the Federal Youth Corrections Act. Section 4083 is contained in Chapter 305 of Title 18 United States Code ( 18 U.S.C. §§ 4081-4086 (1964)), which deals generally with the commitment and transfer of federal prisoners, and which was in effect in substantially its present form at the time that the FYCA was promulgated. The close parallels between many provisions in Chapter 305 and the relevant sections in the FYCA, which are set forth in the margin, 3 strongly suggest that the Youth *695 Corrections Act was in large measure modeled upon Chapter 305, and that it was designed to constitute a parallel and independent system for the processing of youth offenders, supplanting the less refined provisions of Chapter 305. In addition, sections 5023 and 5026 of the FYCA contain indications that Congress *696 contemplated the possibility that the Act would supersede other, more general correctional and penal statutes, and incorporated saving clauses for those provisions which it desired to preserve unaffected. Thus, section 5023 of the Youth Corrections Act provides that “Nothing in this chapter shall be construed in any wise to amend, repeal, or affect the provisions of” the Federal Juvenile Delinquency Act, the Juvenile Court Act of the District of Columbia, or statutes relating to the court’s power to impose probation in lieu of prison sentences. Section 5026, which was also enacted with the main body of the FYCA and amended two years later, is of similar effect: “Nothing in this chapter shall be construed as repealing or modifying the duties, power, or authority of the Board of Parole * * with respect to the parole of United States prisoners * * * not held to be committed youth offenders or juvenile delinquents.” In light of these factors, I do not believe that we should create or rely upon any presumption that section 4083 is applicable to youth offenders; indeed, as I read the legislative history of the Federal Youth Corrections Act, there appears to be a strong argument that section 4083 would in some respects conflict with the purpose and design of that legislation.

The fundamental premise of the Youth Corrections Act is that young offenders are more amenable to change and rehabilitation than older criminals; as the House Report on the Act proclaimed, “ [i]t is believed that by [this] provision the problem of crime will be met at its focal point, namely, before the traits of the habitual criminal are allowed to develop.” H.R.Rep.No.2979, 81st Cong., 2d Sess. 1 (1950) U.S.Code Cong. Service, p. 3983. There were two primary reasons why the existing law made this goal difficult to attain. The first of these related to the irrelevance of the length of penalties imposed for various crimes to the treatment needs and prognosis of the particular youthful offender: many of the statutorily prescribed sentences were either so short that corrections officials lacked sufficient time to implement a realistic program of rehabilitation, or so long that the benefits of a treatment plan could be lost before the young offender regained his freedom. 4 Therefore, the drafters of the Act virtually eliminated reference to the specific crime as a determinant of the length of a youthful offender’s sentence; the only reliance upon statutory penalties as a determinant of the duration of FYCA confinement is contained in section 5010(c) of the Act, which provides that confinement may be continued for as long as the sentence imposed for the particular crime “[i]f the court shall find that the youth offender may not be able to derive maximum benefit from treatment * * * prior to the expiration of six years from the date of conviction.” The reasoning behind this rejection of distinctions based on the nature of the offense was summarized by Harrison *697 Tweed, then president of the American Law Institute:

The conclusion of the institute 6 or 8 years ago and its opinion today is that the criminal law and its administration fail adequately to protect society and particularly to prevent the development of habitual offenders because it has a false and unattainable purpose, namely, to impose punishment to fit the crime without reference to the personality of the offender or to the factors which caused his offense.

It concluded further that if the criminal law is to do a more effective job of protection, it must seek to rehabilitate and segregate indefinitely those who remain incorrigibly dangerous. This new purpose, I believe, will be accomplished through the instrumentality of the proposed legislation now before the Senate.

Hearings on a Correctional System for Youth Offenders Before a Subcomm. of the Senate Comm, on the Judiciary, 81st Cong., 1st Sess. 37 (1949); see also id. at 35-36 for a description of the substantial role played by the ALI in drafting the Act.

The passage quoted above also suggests the second major refinement which the Youth Corrections Act added to existing practice: the segregation of youth offenders on the basis of their potential for rehabilitation. The primary importance which Congress accorded segregation as a device for attaining the Act’s objectives is evidenced by the strong language which the House Report used to criticize the existing method of handling young offenders.

By herding youth with maturity, the novice with the sophisticate, the impressionable with the hardened, and by subjecting youth offenders to the evil influences of older criminals and their teaching of criminal techniques, without the inhibitions that come from normal contacts and counteracting prophylaxis, many of our penal institutions actively spread the infection of crime * * *.

H.R.Rep.No.2979, 81st Cong., 2d Sess. 2-3 (1950). Section 5011 of the Act implements this philosophy by providing that convicted youth offenders shall be confined in institutions with varying degrees of security measures, and that “[ijnsofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, * * * and classes of committed youth offenders shall be segregated according to their needs for treatment.” (Emphasis added.) Similarly, section 5015 invests the Director of the Bureau of Prisons with broad discretion to decide which facility is most appropriate for a youth offender, on the basis of his classification studies.

Accepting either the statutory construction urged by Judge Fahy, or the broader rule suggested by Judge Mac-Kinnon, 5 could conflict with this statutory scheme in several situations. For example, a misdemeanant sentenced under the FYCA may be so immune to rehabilitation that no “treatment” short of the traditional prison regimen will be helpful to him; to place such an offender in a more lenient therapeutic or vocational program would only harm other youth offenders who could still be helped. This possibility does not seem insubstantial when it is remembered that youth offenders can be as old as 22 years at the time of conviction, and that misdemean-ants who receive FYCA sentencing will probably have long criminal records, like the appellant in the present case. There may also be instances in which the most promising course of treatment is brief confinement in a penitentiary, followed *698 by an extended period of more relaxed custody. One witness related such an incident to Congress during the hearings on the Federal Youth Corrections Act:

Here was a case that appeared to be pretty hopeless and they sent him to San Quentin anticipating that they would have to hold him for the maximum time.

[W]hen the kid realized that they actually put him in San Quentin * * he was absolutely beaten. He took this for 2 or 3 months as if the world had fallen in on him. * * * The upshot of it was that he made such a good record that they transferred him to a forestry camp and in 2 years he was discharged.

* -X- -X- * * -X

Senator Kilgore. * * * You first have to convince them in their own minds that they have done wrong, x x x [T] hey usually will not admit it and you have to convince them that they cannot get away with it and the best thing for them to do is to behave themselves.

Hearings on a Correctional System for Youth Offenders, swpra, at 77-78.

These situations may well be statistically insignificant in relation to the administration of the Act as a whole, but I see no proper basis for determining or assuming this key fact in the context of the present case. If these concerns are valid, then adopting either of the approaches detailed in the other two opinions will create several unsatisfactory alternatives: misdemeanor offenders who fit within any of the above categories will either be returned to the streets, which will thwart the Act’s avowed purpose of protecting society, or they will be retained in useless treatment programs where they may actively hinder the rehabilitation of others, or they will be segregated within treatment facilities under conditions of confinement that are “infamous” in every respect save the name applied by this court. 6 Therefore, I cannot agree that either interpretation can be adopted without risking some violence to the design and operation of the Federal Youth Corrections Act, or engaging in judicial legislation which is based upon an insufficient factual input.

IV.

Even if I could be persuaded to accept either of the statutory constructions advanced by the other members of the panel, however, I would find it difficult to assume that all possible FYCA sentences in which the incidents of confinement are somewhat less harsh than jail or penitentiary are constitutionally less infamous than a year in a federal prison. 7 *699 As noted in part I of this opinion, Ex parte Wilson, 114 U.S. 417, 427 , 5 S.Ct. 935 , 29 L.Ed. 89 (1885), together with Mackin v. United States, 117 U.S. 348, 351 , 6 S.Ct. 777 , 29 L.Ed. 909 (1886), indicates that the question of what constitutes an infamous punishment is an issue which is particularly appropriate for de novo examination, and I do not think that this task can properly be avoided in this case.

For the young misdemeanor offender, probably the most important aspect of Youth Corrections Act treatment is the fact that it results in much longer confinement than the punishment prescribed for the underlying offense. The significance of this additional loss of liberty was clearly perceived by the appellant in this case, if not by the members of this court, and it seems likely that Harvin spoke for the vast majority of his contemporaries when he urged the court in his allocution not to impose Youth Correction Act treatment:

THE COURT: Mr. Harvin, you are back before the Court for sentencing, after having had a 60-day examination at the Federal Youth Correction Center. * * *

Do you have anything to say before the Court sentences you?

MR. HARVIN: * * * I just hope that the Court takes into consideration that the crime I [have] been accused of is a misdemeanor, and therefore, if I was to get a Youth Correctional action [sic] * * * it could be six years, and I might wind up having to go three or four years, when the Court of General Sessions has a maximum of a year on the charge that I am charged with. So, therefore, I’d like you to give me time from the Court of General Sessions * * * which is no more than a year, I believe.

At some point, surely, the duration of confinement for criminal activity should compel the conclusion that it is an infamous punishment, even though the incidents of that incarceration are less onerous than the traditional jail or penitentiary regimen; and I am not convinced that a six year sentence for a misdemeanor, even though it bears the palliative label “for treatment and rehabili-ation,” does not invoke the constitutional guaranty.

Secondly, I find it difficult to share the majority’s apparent assumption that, because the Federal Youth Corrections Act is premised upon the humanitarian goal of rehabilitation 8 and seeks to employ the techniques of modern behavioral science, FYCA treatment is therefore easily distinguishable, for purposes of the Fifth Amendment, from sentences imposed on adult offenders. This rationale seems prima facie suspect in the wake of the Supreme Court’s decision in Gault :

It is of no constitutional consequence— and of limited practical meaning — that the institution to which [the youthful offender] is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a “receiving home” or an “industrial school” for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes “a *700 building with whitewashed walls, regimented routine and institutional hours * * Instead of mother and father and sisters and brothers and friends and classmates, ’his world is peopled by guards, custodians, state employees, and “delinquents” confined with him for anything from waywardness to rape and homicide.

In view of this, it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase “due process.”

In re Gault, 387 U.S. 1, 27-28 , 87 S.Ct. 1428, 1443-1444 , 18 L.Ed.2d 527 (1967). The reasons for this suspicion of “treatment” programs are rooted in recent experience which has demonstrated our repeated failures in dealing with youthful offenders: now it is widely acknowledged that insufficient resources frequently force rehabilitative facilities to become mere custodial institutions; 9 that “[e]ven when we profess rehabilitation and correction as objectives, we probably know that to all of us some of the time * * * punishment and retribution are factors”; 10 and that change in the labels applied to the confinement often does little to mitigate the stigma which follows from it. 11 Moreover, even if the Act’s promise of therapy were fully realized, there would appear to be a substantial question as to whether six years of confinement for intensive psychotherapy, which was clearly contemplated in Harvin’s sentence, 12 is less of an incursion on personal freedom and dignity than a year in the penitentiary.

The Federal Youth Corrections Act is undeniably an enlightened piece of legislation, and a welcome aid in the difficult task of sentencing young offenders; however, the dangers of allowing the goal of rehabilitation to obscure the impact on the individual of the means used to attain it have been cogently summarized by a leading commentator in this area:

Measures which subject individuals to the substantial and involuntary deprivation of their liberty contain an inescapable punitive element, and this reality is not altered by the facts that the motivations that prompt incarceration *701 are to provide therapy or otherwise contribute to the person’s well-being or reform. As such, these measures must be closely scrutinized to insure that power is being applied consistently with those values of the community that justify interference with liberty for only the most clear and compelling reasons.

F. Allen, The Borderland of Criminal Justice 37 (1964). These were the kinds of considerations which led the court in United States v. Reef 13 to hold that it was a violation of the Fifth Amendment to impose sentence under the Youth Corrections Act when prosecution had not been initiated by indictment, and I think that we would do well to follow this teaching. I cannot believe that a benevolent purpose and social science rhetoric provide sufficient grounds for avoiding a constitutional mandate which acts as “a substantial safeguard against oppressive and arbitrary proceedings.” Smith v. United States, 360 U.S. 1, 9 , 79 S.Ct. 991, 997 , 3 L.Ed.2d 1041 (1959).

The scholarly phraseology of the majority opinion is impressive; it fails, however, to overcome my apprehension of its constitutional shortcomings. Thus, in order to avoid these potential constitutional infirmities, and to obviate the risk of complicating or frustrating administration of our correctional institutions, I would hold that sentence can be imposed under the Youth Corrections Act only when prosecution was initiated by indictment. If it appeared that such a decision would cause severe dislocation of prosecutorial, judicial, or rehabilita-five functions, retroactivity could be limited pursuant to our holding in Gaither v. United States, 134 U.S.App.D.C. 154 , 174-178, 413 F.2d 1061, 1081-1085 (1969). Accordingly, I would reverse.

. In re Gault, 387 U.S. 1 , 31 n. 48, 87 S.Ct. 1428, 1445 , 18 L.Ed.2d 527 (1967) : “The problems of pre-adjudication treatment of juveniles, and of post-adjudication disposition, are unique to the juvenile process; hence what we hold in this opinion with regard to the procedural requirements at the adjudicatory stage has no necessary applicability to other steps of the juvenile process.” Cf. Kent v. United States, 383 U.S. 541, 543 , 86 S.Ct. 1045, 1048 , 16 L.Ed.2d 84 (1966) : “Apart from raising questions as to the adequacy of custodial and treatment facilities and policies, some of which are not within judicial competence, the case presents important challenges to the procedure of the police and Juvenile Court officials upon apprehension of a juvenile suspected of serious offenses.”

. In re Winship, 397 U.S. 358, 366 , 90 S.Ct. 1068, 1074 , 25 L.Ed.2d 368 (1970) : “[T]he opportunity during the post-adjudicatory or dispositional hearing for a wide-ranging review of the child’s social history and for his individualized treatment will remain unimpaired [by adoption of the reasonable doubt standard].”

.

Chapter 305

§ 4081. Classification and treatment of prisoners.

The federal penal and correctional institutions shall be so planned * * * as to facilitate the development of an integrated system which will assure the proper classification and segregation of Federal prisoners according to the nature of the offenses committed, the character and mental condition of the prisoners, and such other factors as should be considered *695 in providing an individualized system of discipline, care, and treatment * * *.

§ 4082.

(a) A person convicted of an offense against tlie United States shall be committed, for such term of imprisonment as the court may direct, to the custody of the Attorney General of the United States, who shall designate the place of confinement * * ®.

(b) The Attorney General may designate as a place of confinement any available, suitable, and appropriate institution or facility * * * and may at any time transfer a person from one place of confinement to another.

* *

§ 4083.

Persons convicted of offenses against the United States * * * punishable by imprisonment for more than one year may be confined in any United States penitentiary.

A sentence for an offense punishable by imprisonment for one year or less shall not be served in a penitentiary without the consent of the defendant.

*694 FYCA

§ 5011. Treatment.

* * * The Director shall from time to time designate, set aside, and adopt agencies * * * for treatment. Insofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment.

*695 § 5014. Glassification studies and reports.

* * * Every committed youth offender shall first be sent to a classification center or agency. The classification center * * * shall make a complete study of each committed youth offender, including a mental and physical examination, to ascertain his personal traits, his capabilities, pertinent circumstances of lizs school, family life, any previous delinquency or criminal experience * * *.

§ 5010.

* * *

(b) If the court shall find that the convicted person is a youth offender, and the offense is punishable by imprisonment * * *, the court may * * * sentence the youth offender to the custody of the Attorney General for treatment and supervision. * * * § 5015.

(a) On receipt of the report * * * from the classification agency the Director may—

* * *

(2) * * * direct the transfer of the committed youth offender to an agency or institution for treatment; or

(3) order the committed youth offender confined and afforded treatment under such conditions as he believes best designed for the protection of the public.

(b) The Director may transfer at any time a committed youth offender from one agency or institution to any other agency or institution.

* *

[No precise analogue; § 5011, quoted in part above, is probably closest:]

Committed youth offenders not conditionally released shall undergo treatment in institutions of maximum security, medium security, or minimum security types, including training schools, * * * farms, forestry and other camps, and other agencies. * * * Insofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders * * * and classes of committed youth offenders shall be segregated according to their needs for treatment.

. See, e. g., Hearings on a Correctional System for Youth Offenders Before a Subcomm. of the Senate Comm, on the Judiciary, 81st Cong., 1st Sess. 27 (Testimony of James V. Bennett, Director, Bureau of Prisons) :

From the hundreds of cases of this type which have come across my desk I have formed the conclusion that in the task of correcting the offender the crucial element is that of time. Attitudes, habits, interests, standards cannot be changed overnight. Training in work habits and skills requires time. Once the individual has received the maximum benefit from the institutional program, however, it is just as important that his release to the community be effected promptly. In the case of each person confined there comes a period when he has his best prospects of making good in the community. His release should occur at that time. If he is released earlier he will not be ready for the task of establishing himself; if later, he may have become bitter, unsure of himself.

* * *

Rarely does a day go by in one of our institutions for younger offenders without a youth being received whose sentence is either far too long or far too short, if the institution is to carry out its objective of correctional treatment.

. Under Judge MacKinnon’s approach, the existence of an indictment is basically irrelevant: no misdemeanor offender could be confined in a federal penitentiary. However, under this rationale there would still appear to be a question as to wliat result should obtain when a misdemeanant is confined under the FYCA to an institution which is not avowedly a penitentiary, but which is claimed to possess the incidents of infamous confinement.

. Such segregated facilities could well be similar to the Joan Howard Pavilion at Saint Elizabeths Hospital, of which we recently said: “[Tjliere is reason to believe that confinement in John Howard * * * entails extraordinary deprivations of liberty and dignity which make it, in effect, more penitentiary than mental hospital, even if it also provides some treatment.” Covington v. Harris, 136 U.S.App.D.C. 35, 40-41 , 419 F.2d 617, 622-623 (1969).

. The continued vitality of the “one year in jail or penitentiary” test may also be subject to some doubt, since the most recent Supreme Court case on point was decided nearly half a century ago. United States v. Moreland, 258 U.S. 433 , 42 S.Ct. 368 , 66 L.Ed. 700 (1922). There the Supreme Court affirmed a decision of this court directing dismissal of a complaint where prosecution had been initiated by information, and the maximum penalty for the offense was fine and confinement at labor in the District of Columbia workhouse for twelve months. The dissenting justices described the regimen in the workhouse in the following lyrical terms:

It is an industrial farm of 1150 acres, bordering on the Occoquan River. On the farm, in healthful and attractive surroundings, are many small, well-equipped buildings, appropriate for the residence and occupation of the inmates. These are employed on the premises, partly in agricultural, partly in industrial, pursuits. * * * The work is such as is ordinarily performed under favorable conditions on farms, in factories, and in the mechanical trades ; and it is not harder. The eight-hour workday prevails. There is a school, a library, and a hospital. And there is no *699 wall, cell, lock, or bar to restrain the inmates. Nor are they subjected to a distinctive dress such as marks offenders. * * * The dominant purpose of Oeeoquan is not punishment, but rehabilitation. The compulsory labor is in a larger sense compulsory education.

258 U.S. at 444-445 , 42 S.Ct. at 372 .

. Ex parte Wilson, 114 U.S. 417, 426 , 5 S.Ct. 935, 939-940 , 29 L.Ed.2d 89 (1885), suggests that the Congressional purpose in enacting a particular law is largely irrelevant to the question of whether prosecution must be initiated by indictment:

The purpose of the amendment was to limit the powers of the legislature, as well as of the prosecuting officers, of the United States. * * * [T]he constitution protecting every one from being prosecuted, without the intervention of a grand jury, for any crime which is subject by law to an infamous punishment, no declaration of congress is needed to secure or competent to defeat the constitutional safeguard.

. See, e. g., Bazelon, Racism, Classism, and the Juvenile Process, 53 Judicature 373, 376 (1970):

Even the best counselors and treatment facilities fall short of helping every juvenile offender. * * * I can see little indication that the community is attempting even these first steps. * * * The report of the District of Columbia Crime Commission several years ago outlined in dismaying detail the lack of psychiatric and rehabilitative facilities for young offenders in the District, the gross overcrowding of existing facilities, and the unimaginative reliance of authorities upon restraint rather than treatment. Little, if anything, has been done to increase resources.

. Burger, “No Man Is an Island,” 56 A.B.A.J. 325, 326 (1970).

. See In re Gault, 387 U.S. 1, 22-24 , 87 S.Ct. 1428, 1441-1442 , 18 L.Ed.2d 527 (1967) :

[W]e are told that one of the important benefits of the special juvenile court procedures is that they avoid classifying the juvenile as a “criminal.” The juvenile offender is now classed as a “delinquent.” * * * It is disconcerting, however, that this term has come to involve only slightly less stigma than the term “criminal” applied to adults.

* * *

Beyond this, it is frequently said that juveniles are protected by the process from disclosure of their deviational behavior. * * * This claim of secrecy, however, is more rhetoric than reality.

See also In re Winship, 397 U.S. 358, 366 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 .

. At appellant’s sentencing, the trial court stated:

It is the opinion of the people in the Youth Correction Center * * * that the only hope for you is that you receive individual psychotherapy under the Youth Center’s controlled environment. It is the unanimous opinion, apparently, of the staff that the only alternative for you is to be sent to jail, which will not straighten out your problems; to send you to Lexington, which will only strengthen and not diminish your [narcotic] addiction problems[;] or youth correction.

. 268 F.Supp. 1015, 1017 (D.Colo.1967) :

Tlie delicate distinction between “imprisonment”, and “confinement in a prison for treatment and supervision” would probably not be appreciated by the youth offender who is behind bars. The cold fact is that the defendant is subject to imprisonment for a period exceeding one year, and “[a]pplying the euphemism ‘treatment’ to the discipline during confinement does not alter the arithmetic, and is immaterial for present purposes.” Pilkington v. United States, 315 F.2d 204, 208 (4th Cir. 1963).

Cf. Jones v. Cunningham, 371 U.S. 236, 242-243 , 83 S.Ct. 373, 377 , 9 L.Ed.2d 285 (1963) :

It is not relevant that conditions and restrictions [on parole] * * * may be desirable and important parts of the rehabilitative process ; what matters is that they significantly restrain petitioner’s liberty to do those tilings which in this country free men are entitled to do. Such restraints are enough to invoke the help of the Great AVrit.