Appendix — Schall v. Martin

82-1248

- o Supreme Court, U.S,

cae amtanees abe)

ahs JAN 24 1983

Supreme Court of the uted tan cu

October Term, 1982

ELLEN SCHALL, as Commissioner of the New York City

Department of Juvenile Justice,

Appellant,

and

ROBERT ABRAMS, as Attorney General of the State of New York,

Intervenor-A ppellant,

against

GREGORY MARTIN, LUIS ROSARIO, KENNETH

MORGAN, and all others similarly situated,

Appellees.

On Appeal from the United States Court of Appeals

for the Second Circuit

APPENDICES TO JURISDICTIONAL STATEMENTS

FOR APPELLANT AND INTERVENOR-APPELLANT

Freperick A. O. ScHWARzZ, JR. Rosert ABRAMS

Corporation Counsel of the Attorney General of the

City of New Yor! State of New York

Attorney for a * hema Intervenor-Appeilant, Pro Se

100 Church Street Two World Trade Center

New York, New York 10007 New York, New York 10047

(212) 566-7296, 4338 (212) 488-2462, 3385

LEONARD KOERNER Peter H. ScuiFF

Chief, Appeals Division Acting Attorney-in-Chief

Sossre ® Seenweens Appeals and Opinions Division

Of Counsel naneers A. Gorpon

d; ScHACK

Of Counsel

U

TABLE OF CONTENTS

PAGE

Appendix A—Opinions and Judgment of the Court of

Appeals la

Appendix B—June 1, 1981 District Court Judgment 30a

Appendix C—April 17, 1981 District Court Opinion 32a

Appendix D—April 3, 1978 District Court Opinion 89a

Appendix E—Notice of Appeal for Intervenor-Ap-

pellant 102a

Appendix F—Notice of Appeal for Appellant 104a

APPENDIX A

Opinions and Judgment of the Court of Appeals

UNITED STATES COURT OF APPEALS

For THE Seconp Ciecvit

Nos. 526, 706—Angust Term, 1981

(Argued January 12,1982 Decided September 20, 1982)

Docket Nos. 81-2175, 81-2193

——— ———

Grecory Martin, Luis Rosario, KennetH Morcan,

and all others similarly situated,

Petitioners-A ppellees,

—V,—

Pav. Srrassurc, as Commissioner of the New York City

Department of Juvenile Justice,

Respondent-Appellant,

Rosert Aprams, as Attorney General of the

State of New York,

Intervenor-A ppellant.[+]

ne a i

Before:

Oakes, NewMan and WInTER,

Circuit Judges.

{t] Text of opinion includes corrections made by the Court of

Appeals as of January 1, 1983.—Ed.

2a

Appendix A

Appeal from a judgment of the United States District

Court for the Southern District of New York (Carter,

Judge), declaring New York Family Court Act 4 739(a) (ii)

unconstitutional.

Affirmed.

Jupitn A. Gornox, Assistant Attorney General (Rob-

ert Abrams, Attorney General of the State of New

York, George D. Zucker :an, Assistant Solicitor

General, Florence E. Abrams, Assistant Attorney

General, New York, New York), for Intervenor-

Appellant.

Martix Guocexnem, New York, New York (Bruce J.

Ennis, American Civil Liberties Union, New York,

New York), for Petitioners-Appellees.

Lenore Gittis, New York, New York (Janet R. Fink,

Charles A. Hollander, The Legal Aid Society, New

York, New York), for Petitioners-Appellees.

Wrnster, Circuit Judge:

This appeal involves a constitutional challenge to a pro-

vision of the New York Family Court Act’ authorizing pre-

1. The New York Family Court Act has been codified at Book

29A, Part I, Judiciary—Court Acts (McKinney 1975 Supp. 1981).

References to the Family Court Act will be cited as “FCA § ——.”

The preventive detention statute challenged in this action is FCA

§ 739(a), which provides:

(footnote continued on next page)

3a

Appendia A

ventive detention of accused juvenile delinquents. It was

brought in the District Court as a habeas corpus class

action against the defendant Paul Strasburg, Commissioner

of the New York City Department of Juvenile Justice,

under 28 U.S.C. § 2254, Robert Abrams, Attorney General

of the State of New York, intervening as a defendant. Judge

Carter certified the class as ‘‘all juveniles who are now

being held or will be held before these proceedings are con-

cluded, in pretrial detention .. .,’’ under the challenged

statute. A trial resulted in a record of documentary and

testimonial evidence about the actual practice of the Family

Court in utilizing preventive detention, including expert

testimony by a Family Court Judge, statistical studies and

a collection of representative case studies.

Judge Carter held the statute unconstitutional. 513 F.

Supp. 691 (S.D.N.Y. 1981). He issued a judgment grant-

ing the writ to all juveniles detained under the challenged

provisions at any time before conclusion of this action.

Defendants appealed. We affirm on the grounds that the

statutory scheme and practice under it violate the Due

Process Clause of the Fourteenth Amendment in that the

period of pre-trial detention is utilized principally to impose

punishment before adjudication of the alleged criminal acts.

§ 739. Release or detention after filing of petition and prior to

order of disposition.

(a) After the filing of a petition under section seven hundred

thirty-one or seven hundred thirty-two, the court in its discretion

may release the respondent or direct his detention. In exercising

its discretion under this section, the court shall not direct deten-

tion unless it finds and states the facts and reasons for so finding

that unless the respondent is detained :

(i) there is a substantial probability that he will not appear in

court on the return date; or

(ii) there is a serious risk that he may before the return date do

an act which if committed by an adult would constitute a crime.

4a

Appendia A

THE STATUTORY SCHEME SUMMARIZED

Since our decision rests on a belief that the Family

Court Act does not accord procedural due process, it is im-

portant to understand the procedural structure of New

York delinquency adjudications. Although these juvenile

proceedings are somewhat different from adult criminal

proceedings in both ends and means, their major proce-

dural stages have analogues in the adult criminal justice

process. A juvenile proceeding is initiated by a petition

for delinquency,’ a step analogous to an indictment. The

case then goes to fact-finding before a Family Court Judge,

at which time the juvenile is either adjudicated a delin-

quent or the petition is dismissed.* The analogue in the

criminal law is, of course, the trial and verdict. The final

stage is a determination of the disposition by a Family

Court Judge,‘ analogous in the criminal law to adult sen-

tencing. We set out these analogues, not to argue that the

constitutional limitations on juvenile courts are identical

to those imposed on adult criminal tribunals, but solely

to facilitate an understanding of the result we reach.

2. FCA §731 prescribes the function and content of a delin-

quency petition:

1. A proceeding to adjudicate a person a juvenile delinquent is

originated by the filing of a petition, alleging:

(a) the respondent did any act which, if done by an adult, would

constitute a crime and specifying the act and the time and place of

its commission ;

(b) the respondent was a person under sixteen years of age at the

time of the alleged act; and

(c) the respondent requires supervision, treatment, or confine-

ment.

3. See FCA §§ 744, 752.

4. See FCA § 753.

5a

Appendia A

The statutory scheme can be summarized as follows. The

challenged provision is Section 739(a)(ii). It authorizes

detention of a juvenile after filing of a petition, but before

fact-finding, when a Family Court Judge determines ‘‘there

is a serious risk that [the juvenile] may before the return

date do an act which if committed by an adult would con-

stitute a crime.’? Juveniles detained under 739(a) (il)

are entitled to a probable cause hearing within three to

six days and an expedited fact-find'ng hearing.’ If delin-

quency is adjudicated at fact-finding, a probation investi-

gation and, in the case of ‘‘designated felony acts,’ a

5. FCA § 747 mandates that. if the respondent is in detention, a

fact-finding hearing shall commence. unless adjourned, not more than

three days after the filing of the petition against the respondent unless

the respondent is charged with an act which if committed by an adult

would constitute a Class A. B or C felony, in which case the fact-find-

ing hearing shall commence within fourteen days. FCA §739(b)

provides that the respondent may not be detained more than three

days, barring waiver or adjournment. unless the court finds probable

cause. However, under “special circumstances.” a juvenile may be

detained for as long as six days without a probable cause determina-

tion having been made.

6. A “decionated felony act” is defined in FCA §712(h) to in-

clude the following offenses:

(h) “Designated felony act”. An act which, if done by an adult,

would be a crime (i) defined in section 125.27 (murder in the

first degree); 125.25 (murder in the second degree) ; 135.25

(kidnapping in the first degree) ; or 150.20 (arson in the first

degree) ; 130.70 (aggravated sexual abuse) ; 135.20 (kidnanning

or fifteen years of age; (ii) defined in section 120.10 (assault in

the first degree); 125.20 (manslaughter in the first degree) ;

130.35 (rape in the first degree) ; 130.50 (sodomy in the first

degree) : 130.70 (aggravated sexual abuse) ; 135.20 (kidnapping

in the second degree), but only where the abduction involved the

use or threat of use of deadly physical force; 150.15 (arson in

the second degree); or 160.15 (robbery in the first degree) of

the penal law committed by a person thirteen, fourteen, or fif-

(footnote continued on next page)

6a

Appendia A

diagnostic assessment’ precede the dispositional hearing.

The Family Court Judge can choose among several alter-

native dispositions, including suspension of judgment,"

probation,’ placement at home or with other individuals,””

placement in a facility or school where treatment is avail-

able or restrictive placement (incarceration).* The

statutory criteria for determining the appropriate disposi-

tion emphasize the needs and best interests of the juvenile,

the information provided by the probation investigation

teen years of age; (iii) defined in the penal law as an attempt

to commit murder in the first or second degree or kidnapping

in the first decree committed by a person thirteen, fourteen or

fifteen years of age: (iv) defined in section 140.30 (burglary in

the first degree) ; subdivision one of section 140.25 (burglary in

the second degree) ; or subdivision two of section 160.10 (rob-

bery in the second degree) of the penal law committed by a

person fourteen or fifteen years of age; (v) defined in section

120.05 (assault in the second degree) or 160.10 (robbery in the

second degree) of the penal law committed by a person fourteen

or fifteen years of age but only where there has been a prior

finding by a court that such person has previously committed

an act which, if committed by an adult, would be the crime of

assatlt in the second degree. robbery in the second degree or any

designated felony act specified in clause (i), (ii) or (iii) of this

subdivision regardless of the age of such person at the time of

the commission of the prior act; or (vi) other than a misde-

meanor, committed by a person at least seven but less than six-

teen years of age, but only where there has [sic] been two prior

findings by the court that such person has committed a prior act

which, if committed by an adult would be a felony.

7. See FCA §750(3).

8. FCA §755.

9. FCA §757.

10. FCA §756(a) (i).

11. FCA §756(a) (ii), (iii).

12. FCA §753-a.

on

&

4,

ae ee

7a

Appendix A

and diagnostic assessment, the character of the offense and

the need for protection of the community."* Some alter-

natives, however, are foreclosed or available only on a

limited basis. The Family Court Judge has no option to

transfer the juvenile to an adult criminal tribunal. In addi-

tion, placement in a treatment facility turns upon the

availability of space and the consent of the particular

facility..* Even though a Family Court Judge may deter-

mine that placement for treatment is the appropriate dis-

position, therefore, the actual options in a particular case

may be limited to probation or incarceration.

The statutory scheme thus contains facial incongruities.

Preventive detention is authorized solely upon a finding

that a juvenile may do an act in the interim between the

petition and fact-finding which would be a crime if done by

an adult. The potential crimes are not limited to felonies

or violent crimes but include every act which constitutes a

crime under the New York Penal Law.’ The statute itself

13. See generally FCA §§ 711, 753-a(2).

(1981) See note 30, infra; Cf. P. Prescott, The Child Savers, 197

15. The term “crime” is defined in New York Penal Law

§ 10.00(6) as anv felony or mistemearor. This. offenses such as

playing three-card monte can. and, as the record reveals, sometimes

do trigger the sanction of 739(a)(ii). This is in contrast to the

District of Columbia pretrial detention statute, D.C. Code 1973,

§ 23-1322, upheld in United States v. Edwards, 430 A.2d 1321

D.C. App. 1981), under which a suspect may be detained for up to

days pending trial only if that suspect has been charged with the

commission of a “dangerous crime” (i.e., taking or attempting to take

property from another ly force or threat of force, unlawfully entering

or attempting to enter any premises adanted for overnight accommo-

ion of persons or for carrying on business with the intent to com-

(footnote continued on next page)

8a

Appendia A

offers no procedural safeguards and does not set out sub-

stantive criteria, other than the conclusory ‘‘serious risk’’

test, such as prior court contacts or lack of family super-

vision, to limit which accused juveniles may be detained."®

At disposition, on the other hand, elaborate statutory pro-

vision is made for collecting diagnostic and other informa-

tion, and specific criteria are established to guide the Fam-

ily Court Judge.”

THE STATUTORY SCHEME IN PRACTICE

The incongruities of the statutory scheme yield a para-

doxical result in practice. The parties have waged a battle

of statistics regarding the actual disposition of cases in-

volving juveniles detained under 739(a)(ii).% However,

mit an offense therein, arson or attempted arson of any premises

adantable for overnight accommodation of persons or for carrying on

business, forcible rape, or unlawful sale or distribution of narcotics)

or a “crime of violence” (i.e., murder, forcible rape, carnal knowl-

edge of a female under the age of 16, taking or attempting to take

immoral, improper or indecent liberties with a child under the age

of 16, mayhem, kidnapping, robbery, burglary, voluntary man-

slaughter, extortion or blackmail accompanied by threats of violence,

arson, assault with intent to commit any offense, assault with a dan-

gerous weapon, or an attempt or conspiracy to commit any of the

foregoing offenses as defined by any Act of Congress or any State

law, if the offense is punishable by imprisonment for more than one

year). Moreover, the judicial officer ordering preventive detention

must find a substantial probability that the suspect committed that

offense nrior to the imposition of pre-trial detention. Jd. § 23-1322

(b)(2)(C).

16. The case histories in the record reveal instances of detention

under 739(a) (ii) of first offenders.

17. See note 7, supra.

18. The record contains statistical compilations utilized by the

parties to dispute the number of 739(a) (ii) detainees released at or

(footnote continued on next page)

Ya

Appendia A

one critical fact has been established—the vast majority of

juveniles detained under 739(a)(ii) either have their peti-

tions dismissed before an adjudication of delinquency or

are released after adjudication. Of the representative case

studies submitted as evidence, for example, the defendants’

version of events indicates that well over two-thirds of the

before disposition. These include a monograph prepared by the Vera

Institute of Justice and Court Administration Reports for the years

1977 and 1979. None of the data, apart from the representative case

histories, allow a precise comparison of detained juveniles restrictively

Reg and released at disposition. The Vera Study, based on New

ork City juveniles, lumps detentions under 739(a) (ii) with deten-

tions under 739(a)(i), while the Court Administration Reports,

based on statewide data, sufler from that same imprecision but also do

not indicate how many restrictively placed juveniles were ever de-

tained. The Vera Study, relied upon by petitioners, indicates that of

the detained juveniles, 49% have their cases dismissed before trial,

21% are dismissed or released after trial, and only 30% are restric-

tively placed. The Vera Study also demonstrates that, although one-

third of the delinquency petitions filed results in pre-trial detention,

only 11% of all petitions results in restrictive placements. Since the

detainees include those held under (i) as well as (ii), it is not con-

clusive for our purposes. The defendants, on the other hand, apply

a factor derived from the Vera Study’s sample of placed juveniles

who were not detainees to data reflecting total restrictive placements

contained in the Court Administration Reports. From that, they esti-

mate that slightly less than 50% of the juveniles detained under

739(a)(ii) are not placed at disposition. Neither position can be

relied upon for total accuracy. The defendants’ position, however,

is the least reliable. It not only suffers from the overinclusiveness of

both studies but also attempts to combine selected data from a study

based on New York City with selected data from statewide statistics.

We find that the case studies and the Vera Study established that

the great majority of detainees under 739(a) (ii) are released before

or at disposition. Although the defendants have superior access to

generalized statistics and at least an equal opportunity to present a

countersample of case studies, they choose to rely solely upon the

most vulnerable data in the record. Even that data, however, indi-

cates that close to half of all (ii) detainees are quickly released.

10a

Appendiz A

juveniles held under 739(a) (ii) were released at or before

the dispositional hearing.’”

The result in practice is that the vast majority of juve-

niles considered sufficiently dangerous by the Family Court

to justify pre-trial incarceration under 739(a)(ii) are in

fact released by prosecutors or by the Family Court within

days or weeks. Defendants attribute this peculiar result

to the statutory incongruities desuribed above. Detention

decisions under 739(a)(ii) emphasize crime prevention

and are made on the basis of limited information presented

in summary fashion. Dispositional determinctions, on the

other hand, take the juvenile’s welfare and potential for

treatment into account and are based on more detailed and

extensive information.

The defendants offered expert testimony by a Family

Court Judge concerning the actual practice under the

statutory scheme.” He testified that the detention hearing

under 739(a)(ii) usually involves only the Family Court

Judge, a prosecutor, a Court Liaison Officer, the juvenile,

19. The representatives of the thirty-four case histories in the

record is not challenged by the defendants. Adopting the defendants’

version of these histories, final dispositions are known for thirty-two

of the juveniles. The petition of delinquency and results of fact-find-

ing of one juvenile were not offered for admission into evidence and

the record of another juvenile reflects only that he was paroled

pending receipt of certain investigation materials. The vast majority

of that sample, twenty-three of the juveniles, or 70%, were released

at or before disposition stage. Twelve of these cases resulted either

in a dismissal, withdrawal or adjournment in contemplation of dis-

missal before fact-finding; the remaining eleven resulted in either

probation or a suspended sentence.

20. Testimony of Judge Cesar Quinones, Transcript of Trial

Proceedings, pp. 435-513; Joint App. at 521-99.

lla

Appendix A

his or her attorney, and the parents or their representa-

tive." It takes place soon after the arrest and a steno-

graphic record is kept. In the typical case, the evidence

before the Judge is limited to: (a) the petition for delin-

quency and an affidavit by a witness stating the petition is

accurate; (b) a recommendation by the Court Liaison Offi-

cer to detain or release the juvenile based on inquiries and

recommendations made by a probation officer who is usually

not present; (c) siatements by the juvenile or his or her

attorney and by the parents or other persons accompany-

ing the juvenile.”

The Family Court Judge testified that the criteria

utilized in practice under 739(a)(ii) emphasize matters

going solely to the protection of the community. These

include prior record, recent court contacts, seriousness of

the charge, and adequacy of supervisicn.*% He emphasized

that the criteria do not include the interests of the child

and often result in confinement under circumstances harm-

ful to the juvenile.** The same witness testified that the

21. Id. at 477; Joint App. at 533.

22. Id. at 463; Joint App. at 549.

23. Id. at 465-68; Joint App. at 551-54.

24. Judge Quinones testified about the purpose of 739(a) (ii)

detention and emphasized thet such detention may be harmful to the

juvenile :

Q. [by Ms. Gordon] Judge, what is your opinion of the purpose

of the dention that ion 739(a)(2) (sie) authorizes?

ss * *

A. [by Judge Quinones] I believe that the purpose of 739(a)

is really the protection of the community. t baleve that’s the

basic purpose for that provision.

Q. If that statute serves the interest of the child at all, in what

sense does it serve the child’s interest, if you have an opinion?

A. If it serves the child's interest at all, it would be the minimal

benefit that while he is in detention, he is not committing another

(footnote continued on next page)

12a

Appendia A

factors taken into account at the dispositional hearing

differ substantially from those utilized at the 739(a) (ii)

hearing. At disposition, the best interests of the child are

the principal concern and further detention is regarded as

a ‘‘harsh solution.’ Moreover, considerably more infor-

crime; if that can be called a benefit to the youngster, but I don’t

believe that detention is actually for the benefit of the youngster,

not under this statute.

I certainly would not remand anybody for benefit. Perhaps you

might find a rare case where somebody might be so favorably

or so shockingly effected by a short stay in juvenile center that

that might turn him around, but I don’t believe that is the pur-

pose he is put there, no. You put them in for their own good,

I’m sorry.

Q. Are there any disadvantages or bad effects from the detcn-

tion or the pre-trial detention of a juvenile in your opinion?

A. Yes.

Q. What are they?

A. In my opinion, all defenses [sic: detentions], juvenile or

adult, can have bad effects. For one thing, we are talking about

youngsters of tender age. You are taking them away from their

family. I mean, that’s bound to have a psychological . . . detri-

mertal effect on them.

Id. at 479-80; Joint App. at 565-66.

25. Judge Quinones testified about the standards in dispensing

punishment at disposition, as follows:

Q. [by Mr. Guggenheim] How can you account, Judge, for the

fact in a case where the initial reaction of the court is to detain a

child based on a prediction that he will commit another crime or

crimes if not detained with an ultimate disposition in the case of

probation ?

A. [by Judge Quinones] Probation indicates that there has been

a finding in the case. You have to have a fact-finding otherwise

probation wouldn't be discussed.

Now, when it comes to the dispositional hearing, the main pur-

pose of the dispositional hearing or the main thrust ee be

the best interest of the child. In a dispositional hearing you are

supposed to keep the child’s best interest at heart I think

(footnote continued on next page)

13a

Appendiz A

mation about the child is before the Family Court Judge

at the dispositional hearing than is available at the

739(a)(ii) hearing. Not only is the information more

complete and up-to-date, but psychological assessments

are also provided.”

Two other facts influence the'lenient disposition of

adjudicated delinquents. First, as the evidence of the

defendants demonstrated” and as they emphasized at oral

argument,?* the time served, including the preventive

detention period, is frequently considered sufficient pun-

ishment by the Family Court. Juveniles detained under

739(a)(ii) may be held in a secure facility and exposed to

that—well, speaking for myself, I think that any kind of deten-

tion at a dispositional hearing is a very harsh solution to the

roblem and you will look for the least harmful or to the most

neficial disposition at dispositional hearing keeping the best

interest of the child in mind and many times that is probation.

Id. at 505-06; Joint App. at 591-92.

26. Id. at 506-07; Joint App. at 592-93.

27. On redirect examination, judge Quinones added:

Q. [by Ms. Gordon] At the dispositional hearing, Judge Qui-

nones, do you take account of the fact that a child who has been

previously remanded has already spent some time in a restrictive

environment in coming to your disposition?

= [by Judge Quinones] Yes, that is taken into consideration

so.

Id. at 507; Joint App. at 593.

28. At oral argument before this Court on January 12, 1982,

counsel for the defendants argued:

One of those decisions commonly made by a judge is that if a

rson has been detained, even in lieu of bail, that the person

done sufficient jail time, to use that term loosely. Accord-

ingly, to say that a Family Court Judge who issues a disposition

three months, six months later to a child who has been detained,

may simply be a statement that the child has already done enough

time.

Verbatim Transcript of Oral Argument, January 12, 1982, p. 21.

l4a

Appendiz A

assault and criminal subcultures.” Family Court Judges

who consider detention ‘‘harsh’’ in the first place and not

in the juvenile’s interests, will understandably give great

weight to prior confinement.

Second, as already noted, placement in a treatment

facility, an intermediate disposition between probation

and incarceration, is feasible only when a treatment facility

has space and agrees to accept the child. In some cases,

therefore, the Family Court Judge may face a choice

between a disposition regarded as too lenient and another

regarded as too harsh. The former may then be chosen as

more likely to further the best interests of the child. The

practical inability to provide placement in a treatment

facility for criminally inclined juveniles has led to public

expressions of frustration by Family Court Judges in

response to criticisms of lenient dispositions.”

29. Judge Quinones noted in his discussion of the harmful effects

of pre-trial detention the detriment accompanying detention in a secure

facility :

A. [by Judge Quinones] Then again, juvenile center, as much

as we might try, is not the most pleasant place in the world. If

you put them in detention, you are liable to be exposing these

youngsters to all sorts of things. They are liable to be exposed

to assault, they are liable to be exposed to sexual assaults. You

are taking the risk of putting them together with a youngster

that might be much worse than thev possibly might be and it

might have a bad effect in that respect.

Transcript of Trial Proceedings at 480- Joint App. at 566.

30. Judge Edward J. McLaughlin, the Chairman of the Associ-

ation of New York State Family Court Judges, stated recently :

In adjudicating issues involving alleged delinquents, the Legisla-

ture provided that there be two trials. The first, known as a

fact-finding hearing, would be conducted essentially under the

due process rules of a criminal proceeding. If the facts were

proven beyond a reasonable doubt, the court was obliged to con-

duct a second trial to determine whether the delinquent was in

need of treatment and, further, whether treatment was available.

(footnote continued on next page)

15a

Appendix A

Prosecutors take into account judicial attitudes in the

juvenile analogue to plea bargaining, and the dismissal

rate is accelerated in the anticipation that particular juve-

niles will be released even if adjudicated delinquent. The

record indicates that a large percentage of juveniles de-

tained under 739(a) (ii) in fact have their petition dismissed

before fact-finding. Of the case studies, the defendants’

version indicates that over one-third were released under

such circumstances.”

The net result of this combination of statutory language

and conscious judicial practice thus is that by far the

greater number of juveniles incarcerated under 739(a) (ii)

will never be confined as a consequence of a disposition

imposed after an adjudication of delinquency, the usual

course of events being either a dismissal before adjudi-

cation or release upon a post-adjudication dispositional

hearing.”

It is the requirement regarding the availability of treatment that

exposes the court to its greatest public criticism. The Legislature

did not permit the judge to punish the delinquent. Neither is

the judge allowed to compel any institution to accept the delin-

quent for treatment: the treatment facility determines whether

help is available.

This mandate led to the most glaring dissatisfaction with the

court, since it is the delinquent most in need of help-—the sickest,

if you will—who is the least likely to be found eligible for treat-

ment by any existing facility. The situation thus created re-

sembles the case of a terminally ill patient who is not accepted

into a hospital, not because he doesn’t need treatment but because

no treatment is available.

N.Y. Times, March 15, 1982, p. A16, col. 3.

31. See note 20, supra.

32. Part of the detention period for some of these juveniles is

between fact-finding and disposition and thus occurs after an a/judi-

cation of the alleged criminal acts. The testimony was that in the

usual course of events, those juveniles detained under 739(a) (ii)

will continue to be held once adjudicated while those not held in the

pre-trial period will continue to be free pending disposition.

l6a

Appendiz A

DISCUSSION

The presumption of innocence and the requirement

that guilt be proven beyond a reasonable doubt are im-

portant elements of Due Process itself, Jn re Winship, 397

U.S. 358 (1970), which would be gravely diminished in the

protection they afford if individuals can be routinely

incarcerated pending trial. Even the most persuasive

demonstration of innocence cannot prevent the deprivation

of liberty if incarceration precedes, rather than follows,

the adjudication of criminal liability.

The only exceptions presently recognized to this general

rule appear to be brief detentions pending bail hearings,

detention for failure to post bail subject to the Eighth

Amendment’s prohibition on ‘‘excessive’’ bail, or in lim-

ited classes of cases, denial or revocation of bail. See

generally C. Whitebread, Criminal Procedure §§17.01-

17.03 (1980).

The extent to which exceptions other than those relat-

ing to bail may be carved out is not ciear. We believe all

would agree, however, that any exception to the general

rule that incarceration follow, rather than precede, adjudi-

cations of guilt can be justified, if at all, by a compelling

governmental interest. Cf. Gerstein v. Pugh, 420 U.S. 103

(1975). The defendants argue, in the case of 739(a) (ii),

that crime prevention is such an interest. That statute

ostensibly responds to calls for preventive detention to

protect the community from criminally inclined individuals.

As conceived by its proponents, preventive detention is a

method of confining inherently dangerous individuals

accused of crimes pending trial and sentence of confine-

17a

Appendia A

ment. See Note, Preventive Detention Before Trial, 79

Harv. L. Rev. 1489, 1496-98 (1966). The underlying theory

is not that propensity alone justifies confinement but that

the expectation of an adjudication of guilt and subsequent

sentence of confinement, along with a finding of propensity,

justifies protecting the community from the individual in

the interim period. Hruska, Preventive Detention: The

Constitution and the Congress, 3 Creighton L. Rev. 36, 46

(1969). Such a scheme raises serious constitutional ques-

tions which the parties have asked us to address. We

decline, however, to reach those issues because 739(a) (ii)

is utilized principally, not for preventive purposes, but to

impose punishment for unadjudicated criminal acts.

Crime prevention simply does not provide a justifica-

tion for the detention of the vast majority of juveniles

actually held under 739(a)(ii). Family Court Judges, we

are told, release large numbers of detainees at disposition

because much more information pertaining to the particu-

lar juvenile is available there than at the detention stage

and because the Judges tend to find that the time already

served is punishment enough. While the record is silent as

to explanations for the similarly large number of prosecu-

torial dismissals before adjudication, it can be inferred

that such cases as a class involve facts even less compel-

ling as to guilt or appropriateness of further incarcera-

tion.

Accepting the defendants’ view, the vast majority, in all

likelihood over two-thirds, of the 739(a)(ii) detainees fall

into one or more of the following categories: (1) those

against whom the evidence of guilt is weak or insufficient;

(2) those who are not so dangerous that they cannot be

18a

Appendix A

released after a short period of detention; and (3) those

who are regarded as having served enough time in con-

finement. Crime prevention is not a sufficiently compel-

ling governmental interest as to any of these detainees to

justify shortcutting the fundamenta] procedural require-

ment that imprisonment follow, rather than precede,

adjudication. Category (1) involves detainees ultimately

released by prosecutorial dismissal or on a judicial find-

ing of insufficient evidence. As to them, incarceration is

imposed but guilt is never adjudicated. Category (2)

involves detainees about whom a mistaken judgment was

made in the course of the summary hearing held under

739(a)(ii). As to them, no constitutional purpose justifies

their detention. Category (3) involves adjudicated delin-

quents considered to have been punished enough by the

time served. No compelling governmental interest justifies

the imposition of sanctions on members of this group

before, rather than after, adjudication. As to them, deten-

tion serves the purpose of punishment rather than crime

prevention, since early release—within days or at most a

few weeks—by a Family Court Judge contradicts any

asserted need for pre-trial confinement to protect the

community.”

In practice, therefore, the vast majority of the pre-trial

detentions involve either mistakes in judgment fostered

by 739(a)(ii)’s procedurally and substantively unlimited

terms or the imposition of incarceration solely as punish-

33. The state defendants have not contended, and the record

contains no evidence, that the period between arrest and disposition

entails a greater risk of criminal acts by juveniles than the post-

disposition period.

19a

Appendix A

ment for unadjudicated crimes. To the degree that the

goal of crime prevention is implicated at all in the actual

operation of 729(a) (ii), it is only as to the minority, per-

haps less than one-third, of the juveniles actually detained

under its provisions. As to this group, moreover, only the

risk that some might commit crimes is eliminated.

In re Winship, supra, directly ruled that an adjudica-

tion of delinquency which entails the possibility of institu-

tional confinement must rest on proof beyond a reason-

able doubt, because such confinement is constitutionally

analogous to punishment for criminal acts. The provision

invalidated in Winship under the Due Process Clause was

in fact a provision of the New York Family Court Act

which applied a preponderance of the evidence test in

delinquency adjudications. The practice under 739(a) (ii)

is, if anything, more offensive since confinement is im-

posed initially only upon a verified petition and later at

best upon a finding of probable cause.” The Family

Court Judge ordering detention is well aware that most

detainees will either not go to fact-finding or, if they do,

will be released on probation. Section 739(a) (ii) thus

incarcerates—punishes—large numbers of persons upon a

standard of proof which is constitutionally invalid and

which cannot be justified in the name of crime prevention.

Section 739(a)(ii) thus has an unconstitutional impact

as to the vast majority of the juveniles detained under it.

We must now determine whether the statute is invalid as

34, Although in practice the Family Court requires a verified

ition in 739(a) (ii) proceedings, the statute itself does not make

likelihood of guilt a condition precedent to detention. A probable

cause hearing, analogous in all relevant respects to an arraignment, is

held within three to six days after a decision to detain.

20a

Appendia A

to all juveniles or whether individual detainees must liti-

gate the particular circumstances of their confinement.

We hold 739(a) (ii) unconstitutional as to all juveniles.

The pre, or’erant number of persons affected by its terms

suffer punishment without adjudication of guilt beyond a

reasonable doubt and absent a compelling governmental

interest. Individual litigation, however, is a practical

impossibility because the periods of detention are so short

that the litigation is mooted before the merits are deter-

mined. Moreover, the record clearly demonstrates that the

unconstitutional impact of the statute results directly from

its substantively and procedurally unlimited terms which

cause Family Court Judges to incarcerate juveniles they

know will be released before or at disposition. Whether we

view the statutory scheme as commanding the results it

in fact attains or as simply failing ‘‘to provide sufficiently

clear guidance for police, prosecutors and the courts to

enforce [it] in a manner... consistent with [the Due

Process Clanse],’’ United States ex rel. Newsome v. Mal-

colm, 492 F.2d 1166 (2d Cir. 1974) aff’d sub nom. Lefkowitz

v. Newsome, 420 U.S. 283 (1975), matters not, for under

either view it violates constitutional guarantees.”

35. Our view cenficts with that of New York's Court of Anneals,

which has upheld 739(a) (ii) against constitutional attack. Pendle

ex rel. Wavburn v. Schutt. 39 N.Y.2d 682. 385 N.Y.S.2d 518 (1976).

Althouch the burden of the Court's opinion was directed to a claim

that differential treatment of juveniles and adu'ts violated the Equal

Protectior Clause, it recognized that preventive detention under

739(a) (ii) is imposed unon large numbers of juveniles who are in

fact relensed after the dispositional hearing. This was attributed to

the superior information availab'e at that stage to inform the Family

Court Judge as to the proper disnosition. The Court held this con-

stitutionally insignificant. We disagree for the reasons stated.

2la

Appendia A

Our decision is strictly limited to the precise issue

before us. We hold only that pre-trial detention may not

be imposed for anti-crime purposes pursuant to a substan-

tively procedurally unlimited statutory authority when, in

all likelihood, most detainees will either not be adjudicated

guilty or will not be sentenced to confinement after an

adjudication of guilt. In such circumstances, the detention

period serves as punishment imposed without proof of

guilt established according to the requisite constitutional

standard. We intimate no view as to the constitutionality

of preventive detention in other circumstances.

The sole remaining issue is the scope of the relief

granted. Judge Carter allowed this habeas corpus action

to proceed as a class action, certifying the class as ‘‘all

juveniles who are now being held or will be held before

these proceedings are concluded, in pretrial detention

under §4739(a)(ii) ....’’ Appellants do not challenge

this certification. His order, entered on June 1, 1981,

provided that the writ be granted as to all members of

that class, i.¢., those detained under 739(a) (ii) at any time

before this action is concluded. Appellants challange the

order on the grounds that it grants in futuro release to

individuals whose incarceration begins only after entry of

judgment in the District Court. Class actions are permis-

sible in habeas corpus proceedings, United States ex rel.

Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974), cert. denied

421 U.S. 921 (1975), and the writ is available to attack

future confinement, Peyton v. Rowe, 391 U.S. 54 (1968).

It is also clear, however, that the remedy of habeas cornus

is directed to the unlawful custody of individuals, while

22a

Appendix A

prospective relief against enforcement of an invalid stat-

ute must be obtained in an action for an injunetion under

42 U.S.C. $1983. Sce Preiser v. Rodriguez, 411 U.S. 475

(1973). The prospective effect of Judge Carter's order

affects only those detained in custody while this action

continues, not those who may be detained thereafter. We

believe that the ‘in eustody”’ language of 28 U.S.C. § 2254

does not require institution of repeated individual actions

for each new detainee while an appeal from a judgment in

a class action is being actively considered. The fact of

potential custody is clearly present during the period of

litigation, and the defendants are always free to seek a

stay of any such order from the appellate court. The order

below thus does not significantly expand use of the writ."

Affirmed.

Newman, Circuit Judge, concurring:

I concur in afirming the judgment holding unconstitu-

tional New York's preventive detention law for accused

juvenile delinquents, N.Y. Family Court Act § 739(a) (ii)

(McKinney 1975), but my reasoning differs from that set

forth in Judge Winter's thoughtful opinion for the Court.

All members of the panel are in agreement that, even if

36. This issue is apparently contested only because the state de-

fendants believe that however unconstitutional 739(a) (ii) may be,

injunctive relief is unavailable because the only feasible defendants

are Family Court Judges who are immune from suit under § 1983,

Brief of Intervenor-Appellant, p, 85, note, p. 86, note. Relief from

739(a) (ii) is, in their view, available only through successive indi-

vidual habeas corpus actions. However, we fail to see why a custodial

official holding a juvenile under the authority of 739(a) (ii) is not

subject to a Section 1983 action.

23a

Appendia A

the Constitution permits preventive detention of those not

yet found to have violated adult penal statutes or juvenile

delinquency laws, this New York provision fails to com-

port with the requirements of the Due Process Clause of

the Fourteenth Amendment. The majority concludes that

section 739(a)(ii) denies liberty without due process be-

cause in the ‘‘vast majority’’ of instances where detention

has been ordered cither ‘‘mistakes in judgment’’ have

been made concerning the finding of serious risk that the

accused may commit a crime or the detention has been

imposed ‘‘solely as punishment for unadjudicated crimes,’"

Slip op. ——, supra. The ‘‘mistakes in judgment”’’ are

said to be fostered by the statute’s ‘‘procedurally and

substantively unlimited terms,’’ that is, the statute’s grant

of limitless discretion to Family Court judges making the

detention decision has in fact led to an unacceptable number

of mistaken decisions. These instances of detention im-

posed for the purpose of punishment are found to conflict

directly with the constitutional requirement that punish-

ment be imposed only after adjudication of guilt. See In

re Winship, 397 U.S. 358 (1970). I am less certain than

the majority that the record supports a conclusion of a

significant number of instances where detention was im-

1, It is arguable that, with respect to those accused of crime,

pretrial detention imposed solely for the purpose of preventing the

commission of future crimes prior to trial is punishment. With re-

spect to those convicted of crime, the imposition of added confinement,

beyond the penalties for the specific offense, is nonetheless punishment

despite the prospective purpose of preventing future harm. Specht v.

Patterson, U.S, 605, 608-09 (1967). The extension of that prin-

ciple to those accused of crimes raises the broad issue of whether

pretrial detention to prevent future crime is ever permissible, an issue

that need not be faced in deciding this case. For purposes of this

appeal, I am willing to assume that pretrial detention ordered for the

purpose of preventing future crime serves a regulatory purpose.

240

Appendia A

posed either mistakenly or for purposes of punishment.

Nevertheless, under traditional analysis of the require-

ments of the Due Process Clause, I am persuaded that

New York’s statute is unconstitutional because it permits

liberty to be denied, prior to adjudication of guilt, in the

exercise of unfettered discretion as to an issue of consid-

erable uncertainty—likelihood of future criminal beha-

vior. In short, the statute denies due process, in my

judgment, not because it has been shown to yield an

unacceptable number of mistaken or impermissible results,

but simply because it needlessly creates an unacceptable

risk of such results.

Traditional due process analysis requires consideration

of three factors in determining the constitutional adequacy

of procedures by which a governmental interest is advanced

at the expense of an individual interest: (1) ‘‘the private

interest that will be affected by the official action,’’ (2)

‘the risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if

any, of additional or substitute procedural safeguards,’’

and (3) ‘‘the Government’s interest, including the function

involved and the fiscal and administrative burdens that the

additional or substitute procedural requirement would

entail.’’ Mathews v. Eldridae, 424 U.S, 319, 335 (1976).

The private interest impaired by § 739(a) (ii) is personal

liberty, obviously of fundamental importance. The power

of arrest, subject to Fourth Amendment limitations, per-

mits that interest to be impaired in advance of an adjudi-

cation of guilt, but not under procedures that fail to

provide ‘‘sufficiently clear guidance for police, prosecu-

25a v

Appendia A

tors, and the courts’’ so that the Fourth Amendment is

observed. United States ex rel. Newsome v. Malcolm, 492

F.2d 1166, 1174 (2d Cir. 1974). The precise private interest

at issue in this case is personal liberty after arrest and

before trial under circumstances where a court has already

determined that there does not exist a substantial proba-

bility of flight.’

The governmental interest is the prevention of future

crimes, obviously of great significance in general, but of

high value in a particular case only to the extent that the

pretrial detention of a person will prevent the commission

of a crime that he would have committed if not detained,

or will at least significantly reduce the risk of his commit-

ting such a crime. Of course, while detained the person

will not commit an ordinary street crime against members

of the public; the uncertainty in determining whether his

pre-trial detention advances a governmental interest arises

from the difficulty of predicting whether he would have

committed a crime if not detained, or assessing at least

the probability of his doing so. That difficulty requires

consideration of the third due process factor, the risk of

an erroneous deprivation and the probable value of safe-

guards,

The hazards of predicting human behavior are well

known. They are not diminished when the issue is whether

a person arrested for one crime will, in the interval prior to

his trial, commit another crime. Presumably, the legislative

judgment reflected in New York’s statute rests primarily on

2. The juvenile may be detained if “there is a substantial prob-

ability that he will not appear in court on the return date.” N.Y.

Family Court Act § 739(a)(i) (McKinney 1975),

26a

Appendix A

the traditional rationale for preventive detention: a person

who has committed a crime may have a propensity for

committing crimes, and the likelihood that an arrested

person has in fact committed a crime may be a sufficient

basis for including him in the class of those who are likely

to commit other crimes. Perhaps, in addition, the legisla-

ture believed that some persons accused of crime may

expect that they will be convicted and may estimate that

they are unlikely to receive enhanced punishment for a

crime committed prior to sentencing on the initial charge.

Under the stress of apprehending punishment, they may

mistakenly think they can with impunity commit a ‘‘free’’

crime.®

The spirited debate over preventive detention has

focused primarily on whether the ‘‘propensity’’ rationale

has sufficient validity to justify the risk of detaining some

individuals after arrest who in fact would not have com-

mitted a crime if not detained prior to trial.* It is not

necessary in this case to assess the ultimate issue whether

3. Since the challenged statute authorizes detention only on the

basis of a prediction of commission of a future crime, it does not pur-

port to rest on other rationales advanced in support of some juvenile

detention statutes that concern protecting the juvenile from dangerous

home conditions or assuring his availability for study or treatment.

See Comment, A Due Process Dilemma: Pretrial Detention in Juve-

nile Delinquency, 11 John Marshall J. Prac. & Proc. 513 (1978);

Note, The Right to Bail and the Pre-Trial” Detention of Juveniles

Accused of “Crime,” 18 Vand. L. Rev. 2096 (1965).

4. Compare iIruska, Preventive Detention: The Constitution

and the Congress, 3 Creighton L. Rev. 36 (1969), and Mitchell, Bail

Reform and the Constitutionality of Pretrial Detention, 55 Va. L. Rev.

1223 (1969), with Tribe, An Ounce of Detention: Preventive Justice

in the World of John Mitchell, 56 Va. L. Rev. 371 (1970), and

ag Preventive Detention and the Crime of Being Dangerous, 58

Geo. L.J. 287 (1969).

27a

Appendix A

the Constitution prohibits pretrial detention on the basis

of uncertain predictions of future criminal behavior. See

Sellers v. United States, 89 8, Ct. 36, 38 (1968) (Cham-

bers’ opinion of Black, J., questioning whether danger-

ousness is ‘‘ever’’ a justifiable ground for denying bail).

The far narrower issue here is whether the risk of an

erroneous prediction about future crime i» high and

whether safeguards not included in section 739(a) (ii)

would be of value. To state the issue is to answer it. The

proponents of preventive detention doubtless assess the

risk of erroneous determinations somewhat lower than do

the opponents, but on the present state of knowledge con-

cerning predictions of criminal behavior, only the foolhardy

would deny that even with carefully circumscribed decision-

making, a significant risk of erroneous perdiction remains.

New York’s statute does not include readily available

limitations that would reduce the risk of error. First, the

statute places no limits on the crimes for which the person

subject to detention has been arrested. Even the most

ardent advocates of preventive detention do not claim

that commission of any crime, no matter how minor, pro-

vides an adequate basis for predicting commission of a

future crime. Second, the judge ordering detention is

not required to make any evaluation of the degree of

likelihood that the person committed the crime of which

he is accused. The statute authorizes pretrial detention

without a finding of probable cause.’ Third, the judge is

5. See Gerstein v. Pugh, 420 U.S. 103, 114 (1975) (“[T]he

Fourth Amendment requires a judicial determination of probable

cause as a — to extended restraint of liberty following

arrest.”). Even if some standard of proof less than probable cause

would suffice to justify detention for the three to six days prior to the

le cause regs | mandated for all pretrial detainees, see N.Y.

amily Court Act §739(b) (McKinney 1975), New York's pre-

ventive detention statute contains no standard at all.

28a

Appendia A

not required to assess the individual’s background; a

juvenile with solid family support, no prior criminal record,

and attending school or working is subject to preventive

detention in the unfettered discretion of the Family Court

judge, even when arrested for non-violent crimes. Fourth,

the statute places no limits on the type of crimes that the

judge believes the detained juvenile might commit if

released. Though u legislature has broad power to pro-

scribe a variety of conduct as criminal, it does not neces-

sarily have equivalent power to authorize pretrial detention

because of the risk that the detained person might commit

any of the acts, no matter how minor, for which criminal

penalties have been establis :d. Fifth, the statute does

not specify any standard of proof by which the judge must

be persuaded of a serious risk of future crime.’ In marke

contrast to the limitations in the well-known District of

Columbia preventive detention statute upheld in United

States v. Edwards, 430 A.2d 1321 (D.C. App. 1981), the

New York provision permits the judge to order detention

of any juvenile accused of any crime whenever he deter-

mines that there is a ‘‘serious risk’’ of any future crime.’

6. Cf. Addington v. Texas, 441 U.S. 418 (1979) (requiring stand-

ard of “clear and convincing” proof to justify civil commitment to a

mental hospital) ; Speiser v. Randall, 357 U.S. 513, 525-26 (1958)

(emphasizing importance of burden of proof when liberty of criminal

defendant is at stake).

7. Even the Nebraska constitutional provision mandating pre-

ventive detention, which was declared unconstitutional by the Eighth

Circuit for lack of individualized decision-making applied only to those

accused of three serious crimes, treason, murder, and aggravated sex-

ual offenses, and then only “where the proof is evident or the pre-

sumption great.” Neb. Const. art. I, §9; Hunt v. Roth, 648 P24

1982s Cir. 1981), vacated as moot per curiam, 102 S. Ct. 1181

29a

Appendix A

In my judgment, the Due Process Clause forbids the

exercise of such unbridled discretion to inflict a deprivation

as serious as loss of liberty in advance of trial on the basis

of a highly uncertain prediction of future criminal beha-

vior.*

For these reasons I concur in the affirmance of the

judgment of the District Court.[t]

8. The appellees’ claim of a denial of liberty without procedural

due process does not assert that the New Yors statute lacks such

traditional procedural requirements as notice and hearing. Of the

five deficiencies I have noted, only the absence of a specified burden

of proof concerns the type of procedural device normally comprehended

within the requirements of procedural due process. Yet all of the

deficiencies are procedural in the sense that they augment the risk of

erroneous fact-finding, which is the risk sought to be reduced by the

ural component of due — Cf. Carlson v. Landon, 342

S. 524, 543 (1952) (upholding the Attorney General’s authority

to deny bail to a narrowly described class of aliens, prior to deporta-

tion hearings, because “the Attorney General is not left with untram-

meled discretion as to bail” and must “justify his refusal of bail by

reference to the legislative scheme”).

[t] Filed September 20, 1982.—Ed.

30a

APPENDIX B

June 1, 1981 District Court Judgment

UNITED STATES DISTRICT COURT

Sournern District or New York

77 Civ. 6176 (RLC)

tl OE

Unrtrep Srates or America ex rel. Grecory Martiy, Luts

Rosario, Kenneto Moraay, et al.,

Petitioners,

against

Paut Srrassvrc, as Commissioner, New York City

Department of Juvenile Justice,

Respondent.

This action for habeas corpus and declaratory relief

came on for trial before the Court, Honorable Robert L.

Carter, District Judge, presiding, and the issues having

been duly tried and a decision having been duly rendered,

it is Ordered and Adjudged:

1. The New York Family Court Act Section 739 (a) (ii),

is unconstitutional, both on its face and as applied, in that

it contravenes the rights of petitioners and the class they

represent to due process of law as guaranteed by the 14th

Amendment to the Constitution of the United States.

3la

Appendix B

2. The application for writs of habeus corpus for mem-

bers of the petitioner class in the custody of respondent is

granted and all class members in custody pursuant to

Family Court Act Section 739 (a)(ii) shall be released

forthwith.

/8/ Rosert L. Carrer

Rosvert L. Canter, U.S.D.J.

Dated: New York, New York

May 29, 1981

JupGMEeNt Enrerep 6/1/81

/8/ Raymonp F. Burouarpr

Clerk

32a

APPENDIX C

April 17, 1981 District Court Opinion

UNITED STATES DISTRICT COURT

SovrHern District or New York

77 Civ. 6176 (RLC)

—

Unirep Srates or America ex rel. Grecory Martry,

Luis Rosario, Kenneta Morcan, et al.,

Petitioners,

against

Pav Srrassurc, as Commissioner, New York City

Department of Juvenile Justice,

Respondent.

[APPEARANCES OMITTED IN Printrno.]

Carter, District Judge

OPINION

I

Statement of the Case

This habeas corpus class action proceeding is being

brought on behalf of a class of all juveniles who are being

held or who will be held before these proceedings are con-

33a

Appendix C

cluded in pretrial detention under N.Y. Family Court Act

§739(a)(ii) (McKinney) (‘‘the Act’’). Petitioners seek

a declaratory judgment that §739(a)(ii) violates the due

process and equal protection clauses of the 14th Amend-

ment. The case was certified as a class action in an unpub-

lished opinion dated April 3, 1978.

In New York persons between the ages of 7 and 16

accused of various acts which would be a crime if com-

mitted by an adult are subject to the exclusive jurisdiction

of the family court to be prosecuted as juvenile delinquents.’

In the exercise of its exclusive jurisdiction over juvenile

delinquents, the family court is authorized under the Act to

subject an alleged delinquent to pretrial detention prior to

a probable cause or fact finding determination if it deter-

mines that ‘‘there is a serious risk that he may before the

return date do an act which if committed by an adult would

constitute acrime.’’ 4 739(ii) [sic]. The youth may also be

detained because of the substantial probability that he will

not appear on the return date 739 (a)(i), but this pro-

vision is not involved or challenged in this litigation.’

1. For most serious crimes such as murder and arson, members

of this group 13 years old and older may be prosecuted as juvenile

offenders in the criminal court. N.Y. Penal Law $10.00(18) (Me-

Kinney). This subclass, however, does not concern us.

2. N.Y. Family Court Act § 739 (McKinney) provides:

(a) After the filing of a petition under section seven hundred

thirty-one or seven hundred thirty-two, the court in its discretion

may release the respondent or direct his detention. In exercising

its discretion under this section, the court shall not direct de-

tention unless it finds [sic: phrase omitted] that unless the re-

spondent is detained :

(i) there is a substantial probability that he will not appear

in court on the return date; or

(footnote continued on next page)

34a

Appendia C

A trial on the merits occurred in March, 1980. Edward

Rodriguez, a 16 year old, Juan Santiago, a 15 year old, and

Jerome Basnight, a 17 year old, representatives of the class,

testified in person. In addition, the files of their proceed-

ings in the family court along with the § 739 case histories

of 33 other purported members of the class were introduced

in evidence. One of the case histories concerns a Vincent

Harris who was not detained and accordingly is not prop-

erly a member of the class. The Attorney General contends

that Victor Melendez is not properly a member of the class

since he was detained pursuant to §739(a)(i). A reading

of the files does not support that contention, however. At

the § 739 hearing of Melendez, the judge paraphrased the

language of both §739(a)(i) and §739(a)(ii) as grounds

for Melendez’ detention. Accordingly, we will count him

as properly included in the class. However, Daryl] Larkin,

whose case history is included in the class was detained

because, in the judge’s view, there was ‘‘a grave chance”’

that he would not return to court. (Exhibit 9A). That is

the basis for detention under § 739(a)(i). In his brief the

attorney general states that Larkin was detained under

both §739(a)(i) and (ii), but I read the transcript differ-

(ii) there is a serious risk that he may before the return

date do an act which if committed by an adult would constitute

a crime.

(b) Unless the respondent waives a determination that prob-

able cause exists to believe that he is a juvenile delinquent or a

person in need of supervision, no detention under this section

may last more than three days (i) unless the court finds, pursuant

to the evidentiary standards applicable to a hearing on a felony

complaint in a criminal court, that such probable cause exists, or

(ii) unless special circumstances exist, in which cases such de-

tention may be extended not more than an additional three days

exclusive of Saturdays, Sundays and public holidays.

35a

Appendia C

ently. Larkin, therefore, will not be considered a member

of the class. Thus, the case histories which will be studied

are those of 3 named petitioners and 31 other members of

the class.

In addition there was testimony concerning the family

court process by Steven Hiltz, an attorney for 9 years in

the juvenile rights division of the Legal Aid Society, and

attorney-in-charge of its Manhattan office from 1976-1979,

Hubert Benjamin, supe:visor of probation in Bronx Family

Court since 1968 and a probation officer for 30 years, and

Judge Cesar Quinones, of the Family Court of the City of

New York since 1970, who testified concerning § 739 hear-

ings from a judge’s perspective.

Michael Bigley, director of detention services of the New

York State Division for Youth and Ralph E. Kelly, deputy

commissioner of operations of New York City Department

of Juvenile Justice, testified concerning secure and non-

secure facilities and the functions of the state and city

agencies in the housing of juveniles remanded after a § 739

hearing. Professor Leslie Wilkins, professor of criminal

justice at the State University of New York at Albany, and

Dr. Lynwood David Zinn, Director of Child Psychology at

Michael Reese Hospital in Chicago, Illinois, and clinical

assistant professor at the University of Chicago, testified

as experts for petitioners concerning the harmful effects

pretrial detention inflicts on the young and the arbitrari-

ness and untrustworthiness of predictions that a juvenile

will commit a crime in the future. Dr. Wilkins questioned

whether any reasoned predictive determination to that

effect could be made by a family court judge on the basis

36a

Appendia C

of an intake interview and stated that the judge’s subjec-

tive prognosis founded on such data would be roughly only

4% better than pure chance, Finally, Judge Margaret

Driscoll of the Supreme Court of Connecticut and with 18

years on the bench testified about national juvenile stand-

ards and Connecticut procedures in respect of the pretrial

detention of juveniles.

II

The § 739 Case Histories of the Named Plaintiffs and 31

Other Members of the Class

Edwin Rodriguez was arrested on December 12, 1977,

and charged with arson and reckless endangerment (that

he with other youths attempted to start a fire in a subway

station). Rodriguez was 14 at the time and had no prior

arrest record. He had a 6739 hearing on December 13,

1977, before Judge Ferrara. Probation recommended de-

tention. He was detained on the grounds that he was

charged with a serious act that occurred at 12:30 A.M., and

he was not going to school. <A fact finding hearing* was

scheduled for December 15, but was adjourned to Decem-

ber 16. At the December 16 hearing, Rodriguez entered a

plea to reckless endangerment and was released. He had

been detained for a total of 3 days. At the dispositional

3. N.Y. Family Court Act § 742 (McKinney ) defines “fact find-

ing hearing” in a case of alleged juvenile delinquency as one “to

determine whether the respondent did the act or acts alleged in the

ition which, if done by an adult, would constitute a crime.” N.Y,

amily Court Act § 744 ( McKinney) requires evidence to be limited

to the competent, material and relevant and a finding that “respond-

ent did the acts or acts alleged must be based on a preponderance of

37a

Appendia C

hearing* on June 23, 1978, Rodriguez was given 2 years

probation and family counselling. There have been no

subsequent court contacts. Rodriguez, as indicated, testi-

fied in person at the trial, and his § 739 case history is set

out in Exhibit 12.

Juan Santiago, 12 years old with no prior court con-

tact, was arrested on April 11, 1978, and charged with

first degree assault on a 71 year old woman, The offense

was alleged to have occurred at 6:00 P.M. on the street

and to have resulted in injury to the woman, He was taken

to Spofford (a secure facility)’ where he was held until his

§739 hearing on April 12, before Judge Matthews. The

court ordered him detained because of the seriousness of

the offense and the condition of the alleged victim, A prob-

able cause hearing was set for April 17, He had been de-

tained for 6 days at the time of the probable cause hearing.

Probable cause was found and the boy was detained at

Spofford until his fact finding hearing on April 24, 1978.

As a result of that hearing, he was adjudicated a delinquent

4. N.Y. Family Court Act §743 (McKinney) defines a dis-

positional hearing in cases of alleged juvenile delinquency as one “to

determine whether the respondent requires supervision, treatment or

confinement.”

5. There are two types of detention facilities—secure and non-

secure. A secure facility is defined as one “characterized by physically

restricting construction, hardware and procedures.” vy Family

Court Act §712(d) (McKinney). <A non-secure facility is “char-

acterized by the absence of My eu restricting construction, hard-

ware and procedures.” N.Y. Family Court Act §712(e) (McKin-

ney). The secure facility has a more authoritarian atmosphere. The

juveniles are subjected to strip-searches, wear institutional clothing

and follow institutional regimen. At Spofford, which is a secure

facility, some juveniles who have had dispositional determinations

and were awaiting placement (long term care) comingle with those

in pretrial detention (short term care).

38a

Appendia C

and was ordered detained further at Spofford for psycho-

logical testing and investigation. At his dispositional hear-

ing on May 19, 1978, he was released to the custody of his

mother on 2 years probation. Since his release, he has had

no further contact with the court. (Exhibit 13)

Jerome Basnight, 14 years old, was arrested on October

14, 1977, and charged with first degree robbery and crim-

inal possession of a weapon. He is alleged to have acted

with 2 others to steal a pocketbook at gunpoint. He was

released to the custody of his mother by the police. A

§ 739 hearing was held on October 20, 1977, before Judge

Ferrara, 6 days after the event. The boy was ascertained

to be registered in school, to be a resident of Staten Island

and to have no prior criminal record. The judge detained

him hecause the matter was ‘‘quite serious,’’ and the boy

seemed involved in bad company. A probable cause hear-

ing was held on October 24. He had been detained 4 days

at the time of the probable cause hearing. Probable cause

was found, and he remained in custody until a fact finding

hearing on November 1. He was adjudicated a delinquent

at that hearing on the robbery charge, and disposition was

reserved. At the dispositional hearing on November 29,

1977, Basnight was-placed on probation for one year under

the supervision of the County of Richmond. (Exhibit 10)

Basnight testified at trial that he was registered in McKee

Vocational High School in Staten Island, and that hecause

of the time spent in detention, he lacked the necessary

points to qualify for auto shop training because he could

not make up the deficiency.

Gregory Martin, 14 years old, was arrested on Decem-

ber 13, 1977, charged with robbery and assault with crim-

39a

Appendiz C

inal possession of a weapon for striking another youngster

with a loaded revolver and stealing his jacket and sneakers.

A §739 hearing was held on December 14, before Judge

Ferrara. Martin had no prior record. Citing the lateness

of the hour when the crime occurred, that the boy had given

the police a false address and the loaded weapon, the judge

ordered Martin detained. At the December 19 probable

cause hearing, probable cause was established. He had

been detained 6 days before this hearing. The fact finding

hearing held December 27-29, adjudicated Martin a delin-

quent and guilty on all counts. At the February 14, 1978

dispositional hearing, he was given 2 years probation.

(Exhibit 11)

Luis Rosario, 14 years old, together with 4 others, was

charged with an attempt on March 2, 1979, to rob two men.

It was alleged that a gun was used and that Luis and his

companions beat the two men about the head with sticks.

Luis was released. A § 739 hearing was held before Judge

Roache on March 15. At that time Luis had another de-

linquency petition pending for knifing a student, and two

prior petitions had been adjusted. The court ordered him

detained, noting his prior court appearances. Probable

cause was found on March 21. On April 11, the boy was

released to his father, and the case was terminated on Sep-

tember 25, 1979, without adjustment. (Exhibit 2)

Kenneth Morgan, 14 years old, was arrested on March

25, 1978, and charged with attempted robbery and threat-

ening a 14 year old girl and her brother. A $739 hearing

was held on March 27, before Judge Moskoff. Kenneth was

then on release status on another robbery charge. He was

ordered detained. A probable cause hearing was appar-

-

4a

Appendix C

ently set for March 30, but continued until April 4, where

it seems to have been combined with a fact finding hearing.

He was found guilty of harassment and petty larceny.

Morgan was detained 10 days before the April 4 probable

cause continued hearing, and 8 days subsequent to the § 739

determination. On July 5, at a dispositional hearing, he

was ordered placed with the Department of Social Services

for 18 months. (Exhibit 3)

Phil Hanna, 13, and Calvin Jenkins, 15, were arrested

and charged with robbery and criminal trespass on August

23, 1977, for breaking into a store and damaging equipment.

A $739 hearing was held before Judge Rigler on August

24. Hanna had had prior court contacts and Jenkins, with

2 delinquency petitions pending, was on probation. Both

were ordered detained. At the August 29 probable cause

hearing, Jenkins and Hanna were paroled. On October 21,

1977, their cases were dismissed for lack of prosecution.

They were held in pretrial detention for 6 days before the

probable cause determination. (Exhibit 4)

James Price, 13 years old, was arrested on September

11, 1978, for attempting to pull a necklace from a man’s

neck and was charged with robbery, assault and grand lar-

ceny. A $7359 hearing was held before Judge Ferrara on

September 12. Price had had prior court contacts, but the

previous charges had not been pressed. He was ordered

detained, the court citing his recent court contacts. A prob-

able cause hearing was set for September 15, and at that

hearing Price admitted to grand larceny and was placed in

a non-secure facility. He absconded on September 27. At

the time of the probable cause hearing Price had been de-

tained for 3 days. (Exhibit 5)

4la

Appendix C

‘Johnny McArthur, age 15, was arrested on October 12,

1977, for pointing a loaded, cocked automatic at a 13 year

old, He was charged with criminal possession of a dan-

gerous weapon and menacing and released by the police to

the custody of his mother. A §739 hearing was held on

November 28, 1977, six weeks after his arrest, before Judge

Heller. He was ordered detained, the judge stating it was

his policy to remand those caught with loaded .45 caliber

revolvers. The probable cause hearing was scheduled for

November 30, 1977, but was adjourned, and he was released

to the custody of his mother. As of November 30, he had

been detained for 2 days. On January 10, 1978, the matter

was dismissed without prejudice. (Exhibit 6)

Christopher Cox, 13, Glen Maloney, 13 and Wade Forde,

13, were arrested on October 13, 1976, along with Clarence

Smith, 13, and Alex Michael, 15, and charged with grabbing

and threatening people with a weapon in an attempt to

take their bus passes. They were released to the custody

of their parents. A §739 hearing was held on November

12, before Judge Roache. Smith, who had retained private

counsel, was paroled as was Michael. The court ordered

Cox, Maloney and Forde detained despite the intake pro-

bation officer’s recommendation of parole and the fact that

the three had had no prior court contact. Forde was

paroled to his parent’s custody on November 15, and at the

November 23 fact finding hearing he was adjudicated a

delinquent. Forde was placed on probation for 2 years.

Cox was placed on probation on January 13, 1977, but it

was subsequently revoked. Forde appears to have been

held in custody for 3 days before being paroled to his

42a

Appendiz C

mother’s care. The case history does not contain any fur-

ther information. (Exhibit 7).

Francisco Ramos, 15, was arrested on March 4 for break-

ing into a store and stealing goods and charged with bur-

glary, petty larceny, criminal mischief and criminal posses-

sion of stolen goods. He was released to the custody of his

parents. A §739 hearing was held on March 17, 1978, be-

fore Judge Roache. He had a record of 9 prior arrests but

all had resulted in adjustments and dismissals. Probation

recommended release, but Judge Roache ordered him de-

tained on the ground that prior arrests showed a likelihood

that Ramos would commit a crime before the return date.

A probable cause hearing was set for March 21, 1978, but

the matter was continued. The final disposition of the pro-

ceeding was a discontinuance. Ramos was apparently in

custody by order of the court for some 4 days until the

matter was discontinued. (Exhibit 8)

Jose Cruz, 14, was charged with attempted murder and

assault based on a March 7, 1977 incident in which Cruz

allegedly pushed a 77 year old man down the stairs, beat

him about the head and threatened him. At a § 739 hearing

on March 25, before Judge Rigler, he was ordered detained

in view of the severity of the charge. Probable cause was

found on March 28, at which time he had been detained 3

days. The attempted murder charge was dismissed, and

he was paroled in his mother’s custody on April 1. On

May 25, the assault charges were reduced, and the case was

adjourned in contemplation of dismissal. (Exhibit 11)

Edwin Ascencio, 14, was arrested on December 12, 1977,

with Edwin Rodriguez, and charged with arson and reck-

less endangerment for allegedly starting a fire in a subway.

43a

Appendix C

A §739 hearing was held on December 13, 1977, before

Judge Ferrara. Ascencio had a petition pending and had

not been attending school. The judge ordered detention,

citing the seriousness of the allegations as a basis. A prob-

able cause hearing was held on December 16, 1977. Ascencio

admitted to committing the offense and was released to his

family. He had been held in custody for 4 days, 3 of them

under order of the court at the time of the probable cause

hearing. At the dispositional hearing on January 26, 1978,

he was placed on 2 years probation. (Exhibit 12)

James Peebles, 15 years old, was arrested and charged

with arson for allegedly setting fire on July 4, 1978, outside

the door of the complainant’s apartment while the com-

plainant and his family were inside. A § 739 hearing was

held on July 5, before Judge Quinones. The boy was

ordered detained, the judge citing the seriousness of the

crime as the basis for his action. At the July 10 probable

cause hearing Peebles admitted to reckless endangerment.

At that time he had been in custody for 6 days. Detention

was continued for psychological evaluation. On July 20,

1978, he was released to his mother. Parole status was

revoked in December, 1978, and at the dispositional hearing

he was placed with the Division for Youth. (Exhibit 14)

Jeffrey McCain, 15, was arrested on May 23, 1978. A

§739 hearing was held on May 24, 1978, before Judge

Doran. The boy had been arrested on robbery charges on

3 prior occasions that same month, and petitions for these

offenses were pending. He was ordered detained. A prob-

able cause hearing was set for May 28, 1978, but was post-

poned. The matter was eventually dismissed because of

lack of proof beyond a reasonable doubt to support the

dha

Appendix C

charges. McCain was held in custody for at least 4 days

before the scheduled May 28 probable cause hearing. The

record does not disclose the date of the boy’s release.

(Exhibit 15)

Carl Harris, 15, and Michael Taylor, 14, were arrested

on March 5, 1977, for posession of stolen property and

released. A § 739 hearing was held 12 days later on March

17, before Judge Rigler. In view of prior court contacts,

the court ordered both detained. On March 21, 1977, both

were adjudicated delinquent. By that time they had each

spent 4 days in detention. At the dispositional hearing on

May 16, 1977, Carl was placed on probation and Michael

with the Commissioner of Social Services. (Exhibit 16)

Victor Melendez, 15, was arrested on July 11, 1977, for

breaking and entering a school building at night and caus-

ing $1,500 in damages. A §739 hearing was held on July

13, 1977, before Judge Gartenstein. This was Melendez’s

fourth arrest since March, 1977. He was ordered detained.

A probable cause hearing was set for July 19, but was ad-

journed and was finally held on August 12, 1977, at which

time Melendez was adjudicated a delinquent. On Decem-

ber 16, 1977, he was placed on one year’s probation. It is

unclear from the record what part of the period from July

11 to August 12, Melendez spent in detention.* (Exhibit 17)

Tyrone Parson, 15, was arrested on November 6, 1976,

for promoting gambling and for possession of a gambling

device and released. At a § 739 hearing held on December

6. If he was in fact held in custody from July 13 to August 12

before the probable cause hearing, the statutory time constraints ap-

pear to have been breached. See N.Y. Family Court Act § 739(b)

(McKinney ).

45a

Appendix C

1, he was ordered detained. Seven prior court petitions

were then pending. At the probable cause hearing on De-

cember 6, the petition was dismissed because the offense

alleged did not come within the provisions of the penal law.

He had been detained for 5 days between his §739 and

probable cause hearings. (Exhibit 18)

Geraldo Delgado, 15, was arrested on March 4, 1976, for

stabbing and killing another boy. A § 739 hearing was held

on March 5, 1976, before Judge Matthews. He ordered the

boy detained because of the seriousness of the crime. Prob-

able cause was found on March 10. Delgado had been de-

tained for 5 days between his 4739 hearing and probable

cause determination. Delgado was adjudicated a delin-

quent on April 4, 1976, and psychological tests were or-

dered. On July 7, 1976, he was released to his mother’s

custody and placed on one year’s probation subject to

treatment at Lincoln Hospital Adolescent Treatment Cen-

ter. (Exhibit 19)

Tony Gomez, 15, was arrested on October 26, 1978, for

allegedly assaulting and robbing a 77 year old woman and

charged with grand larceny, robbery, assault and possession

of stolen property. A §739 hearing was held on October

27, 1977, before Judge Ferrara. He was ordered detained.

Three prior petitions for robbery and attempted rape had

been terminated without adjustment. A probable cause

hearing was scheduled for October 31, but was adjourned.

Gomez was released on a writ of habeas corpus on No-

vember 10, 1977. At the time he had been held in custody

without a probable cause adjudication for 15 days, 14

of those days were pursuant to the court’s order under

§ 739(a)(ii). On December 7, 1977, he was adjudicated a

46a

Appendix C

delinquent and given a one year suspended sentence.

(Exhibit 20)

Maurice Dunaway, 13, was arrested on July 22, 1976,

for theft of subway bus transfers from a Transit Authority

transfer box. A §739 hearing on July 23, 1976, was held

before Judge Roache. The boy was ordered detained due

to alleged threats against the complainant, disobedience

at home and prior court contact. Another petition for a

similar offense was outstanding. A probable cause hear-

ing was set for July 27, but was adjourned to August 3.

On the latter date Dunaway was adjudicated a delinquent.

He had been detained for 11 days under court order at the

time of his probable cause hearing on August 3. There-

after he remained in custody until October 12, 1976, and

then was released to his mother while placement was ex-

plored. On April 20, 1977, he was placed with the Division

for Youth for 18 months. (Exhibit 21)

Daniel Nelson, 15 was arrested on April 19, 1979,

charged with petit larceny for allegedly stealing a radio

valued at $85, and released to the custody of his parents.

A §739 hearing was held on May 3, 1979, before Judge

Roache. At the time, Nelson was on probation on a prior

charge and was ordered detained. The probable cause

hearing was held on May 6, and he was adjudicated a de-

linquent. At the time of his probable cause hearing he had

been detained for 3 days. On December 12, he was placed

with the Commissioner of the Department of Social Serv-

ices for 18 months. (Exhibit 22)

Daniel Gregoire, 15, was arrested on August 23, 1977, on

charges of burglary and criminal possession of stolen prop-

erty. A §739 hearing was held on September 20, 1977,

47a

Appendix C

before Judge Roache. Six prior delinquency petitions

against this juvenile had been dismissed. His father told

the judge that he could not control the boy and did not want

him home. He was ordered detained and remained in cus-

tody until September 23, 1977, when he was paroled to his

brother. Probable cause was found on September 29, and

at the dispositional hearing he was placed in St. Vincent’s

for 18 months. Gregoire had spent a total of 3 days under

court ordered detention. (Exhibit 23)

Carlos Lopez, 13, was arrested on August 30, 1977, for

breaking and entering a store at 4:00 A.M., and was charged

with burglary, petit larceny and criminal mischief. A

§ 739 hearing was held on August 31, 1977, before Judge

Rigler. He was ordered detained because of family prob-

lems and five pending petitions. A probable cause hearing

was set for September 6, 1977. On September 9, he ab-

sconded, was returned and absconded again on September

22, 1977, and again was returned. On November 10, 1977,

the case was adjusted in contemplation of dismissal. It is

difficult to ascertain the precise number of days this ju-

venile was detained, but it seems to have been at least 7

days before the probable cause hearing. (Exhibit 24)

Kevin West, 14, was arrested on May 31, 1971, and

charged with grand larceny, jostling and resisting arrest,

for taking property from a 71 year old woman and striking

the arresting officer. The § 739 hearing was held on June

1, 1979, before Judge Matthews. Several outstanding pe-

titions were then pending. West was ordered detained. On

June 5, he was adjudicated a delinquent and placed with

the Division for Youth for 12 months. His time in deten-

tion under court order before his probable cause hearing

was 4 days. (Exhibit 25)

48a

Appendix C

Carlos Fargas, 14, was arrested on April 24, 1979, for

threatening to strike the complaining witness with a broom-

stick. He was charged with robbery, grand larceny, unlaw-

ful imprisonment and possession of stolen property. He

was released pending a §739 hearing which was held on

June 6, before Judge Pollard. The failure of his parents

to accompany him to court meant a lack of supervision to

the judge and created a likelihood of further delinquent

acts. For these articulated reasons he was detained. On

June 11, he was paroled to the custody of his parents. He

had been in pretrial detention under court order for 5 days.

(Exhibit 26)

Jody Allen, 12, was arrested on May 25, 1979, for beat-

ing an elderly woman who had to be hospitalized. There

had been seven previous court contacts but no findings.

He was charged with assault and attempted robbery and

released. The §739 hearing was held on June 1, before

Judge Pitaro. He was ordered remanded. The complain-

ing witness did not prosecute the matter. Allen was re-

leased to the custody of his grandmother on June 4. He

had been detained under court order for 3 days before

being released. The petition was withdrawn on June 25.

(Exhibit 27)

Emmett Jacobs, 14, was arrested for stealing a watch

on May 30, 1979, and charged with robbery and grand lar-

ceny. A §739 hearing was held on May 31, before Judge

Leddy. Three prior petitions had been filed, but no find-

ings had resulted. Noting his prior court contacts, the

court ordered Jacobs detained. At the probable cause

heaving on June 4, Jacobs admitted to petit larceny. At

fine disposition he was placed with the Division for Youth

49a

Appendia C

for 12 months. He had been detained 4 days before his

probable cause adjudication. (Exhibit 28)

James Ancrum, 15, was arrested on August 16, 1979,

for attempting to take a necklace off a man’s neck. The

man was allegedly beaten and thrown down a flight of

stairs. A §739 hearing was held on August 21, before

Judge Ferrara after an order was issued removing the case

from criminal court. Probation recommended release, but

Ancrum was ordered detained, in view of the lateness of

the hour when the act was allegedly committed. On August

24, probable cause was found. He was released to his

mother’s custody, and the petition was withdrawn. He

was detained for 3 days under court order before the prob-

able cause hearing. (Exhibit 35)

Douglas McLaughlin, 14 years old, was arrested on

June 29, 1978, for burglarizing an apartment. Apparently

he was on parole between the incident and the 4 739 hearing

on July 7. He had been arrested once previously, though

no petition had been filed. The 4739 hearing was held

before Judge Quinones, who ordered the boy remanded due

to a statement by the boy’s mother that he was beyond her

control. A fact finding hearing was set for July 11, then

adjourned until July 13, at which time McLanghlin was re-

leased to the custody of his mother. He was detained

under court order for 6 days before the probable cause

hearing. The petition was ordered dismissed on January

12, 1979, (Exhibit 43)

Appendix C

Juvenile Delinquency Proceedings

The threshold step in the court process in juvenile de-

linquency proceedings occurs at probation intake in family

court. The juvenile may be brought to the intake part from

temporary detention or in police custody, in which case he

comes to the court in handcuffs and under police escort.

The juvenile may have been released to the custody of his

parent or guardian, with instructions to appear in court

at an appointed time. N.Y. Family Court Act § 741 (Me-

Kinney). In these cases the juvenile appears on his own

at probation intake, usually accompanied by a parent or

relative. If the complainant appears, and it is the court’s

understanding that, more often than not, the complainant

is a police officer, the case is assigned to a probation intake

officer. If no complainant appears, a new date is set, and

if after several continuances the complainant still does not

put in an appearance, the non-felony proceedings are ter-

minated. If a felony, the case is referred to the district

attorney.

The intake probation officer must hold either a master’s

degree in social work or in sociology and related fields or

such a bachelor’s degree, plus two years of paid-for ex-

perience in social work and related fields. Many of the

probation officers currently on duty in probation intake

possess only the lower academic credentials augmented by

relevant work experience.

The probation officer to whom the case is assigned in-

terviews the police officer, the juvenile and parent or guard-

Sla

Appendix C

ian, if present. Typically, the civilian complainant signs

a statement at the police station and does not appear at

probation intake. The juvenile is not represented by

counsel. The purpose served by these interviews is to

enable the probation officer to ascertain the nature of the

offense charged, to obtain the juvenile and the police ver-

sion of what took place, to assess the juvenile’s role and

personal involvement in the offense and to secure some

background facts on the child. The juvenile is not sub-

jected to any professional psychiatric or psychological ex-

amination unless mental health problems are patently evi-

dent. The entire interview process takes between 10 and

40 minutes. After the interviews are concluded, the officer

checks to ascertain whether the juvenile has a history of

prior involvement with the court. He then decides whether

the case should be adjusted, that is, disposed of without

court intervention. He may adjust the case, leaving it open

to see whether the juvenile lives up to the conditions im-

posed with a view to having the case ultimately dismissed.

Whether the case is adjusted or referred to court intake for

further proceedings is determined based on criteria set

forth in Family Court rules and the regulations in the

New York State Department of Probation. N.Y. Family

Court Act §734(a) (McKinney); Family Court Rules,

§§ 2507.3-2507.6.

If the officer decides that the case must be processed

through court, the case is sent to court intake for a petition

to be drawn and prosecution by the district attorney or

corporation counsel. N.Y. Family Court Act §731(i)

(McKinney). When the probation officer decides to refer

the matter to court intake for the drafting of a petition and

Appendix C

further proceedings, he must accompany the reference with

@ recommendation that the juvenile either be remanded or

paroled. This recommendation is based on the nature of

the case, whether there is a prior record, the attitude of

the juvenile and of the parent.’ There do not appear to be

any governing criteria which must be followed by the pro-

bation officer in choosing between proposing detention and

parole, nor do psychological or psychiatric factors appear

to be considerations involved in the probation officer’s

recommendations.

Although the court was advised at trial that the corpo-

ration counsel is increasingly demanding that petitions be

based on the statement of a complainant with personal

knowledge of what took place, we were nonetheless advised

that petitions based solely on information and belief are

still being processed.

If in custody, the juvenile must be brought before a

judge for a 4739 hearing within 24 hours. The judge may

order him held for an additional 24 hours before holding

the 4739 hearing. If the hearing results in pretrial deten-

tion, a fact finding hearing, which is equivalent to a trial

on the merits, must occur within 3 to 6 days thereafter.

N.Y. Family Court Act § 747 (McKinney). In some cases

fact finding may be put off for good cause as long as 14

days after the § 739 proceeding, but if such a postponement

occurs, there must be a probable cause hearing within 72

hours of the 4739 determination. N.Y. Family Court Act

§ 748 (McKinney)

7. In certain designated felony cases, the officer makes no recom-

mendation about release or parole but merely summarizes the record

in the case. (Tr. 72).

.

53a

Appendiz C

The § 739 hearing takes place at court intake and is sim-

ilar to an arraignment in an adult case. The juvenile is

brought before the judge and assigned counsel. The charges

are read, and the juvenile is advised of his rights. N.Y.

Family Court Act {739 (McKinney). In addition to the

juvenile and assigned counsel, the prosecutor, court liaison

officer and probably a parent or guardian are also present.

The court liaison officer is the probation officer on duty at

court intake. He is not the probation intake officer who

interviewed the juvenile and whose recommendation to re-

mand or parole the judge will act upon. There is an official

stenographic transcript of this proceeding, but no inquiry

is made into the non-hearsay allegations of the truth of the

charges, and no testimony is taken under oath. After the

charges are read and the juvenile is advised of his rights,

the judge asks for the recommendation from probation in-

take. This is read to him by the court liaison officer. The

judge may make a few inquiries of defense counsel, prose-

cution and court liaison officer. Then he announces his

decision whether to order detention or parole the juvenile.

He.-usually gives some indication on the record of his rea-

sons for ordering pretrial detention.

Each judge follows his own individual approach to this

determination. Judge Cesar Quinones, the only judge of

family court to testify, stated that his determinations are

based on the petition, prior record and the probation offi-

cer’s recommendation. He also considers whatever facts

are brought out by defense counsel, but appointed counsel

(the usual case) is assigned at court intake when the case

is called and has very little opportunity to learn much per-

54a

Appendia C

tinent information about the juvenile. Background on the

child is not available at the court intake unless there has

been prior court contact, and if the latter, this is a negative

factor. Often there is no one present with personal knowl-

edge of what happened.

Judge Quinones stated that he considers allegations of

violence against persons more serious than property infrac-

tions; that he looks to the seriousness of the charges, wheth-

er anyone was hurt, whether the acts occurred in early

morning which would be indicative of lack of parental

supervision. He testified that a 4739 determination to

detain the juvenile is not intended to benefit the child, but

to protect society. At court intake, Judge Quinones testi-

fied, approximately 30 cases are processed in a typical 9-5

day, thus each proceeding is of 5-15 minutes in duration.

The great majority of juveniles ordered detained are blacks

and Puerto Rican. No uniform court or judicial criteria,

yardstick or guidelines govern a 4739 disposition. In de-

ciding whether the juveniles should be detained, each judge

must rely on his own subjective judgment, based on the

limited information available to him at court intake and

whatever personal standards he himself has developed in

exercising his discreticnary authority under the statute.

(Tr. 435-513).

At the fact finding hearing, a determination is made

whether the juvenile is to be adjudged delinquent because

he is found to have committed the offenses charged, or, as

in the typical case, a lesser offense than that originally

charged. Where a probable cause hearing precedes fact

finding, there must be a sufficient prosecutorial presenta-

tion to warrant a finding of probable cause that the juvenile

55a

Appendix C

committed the offense charged, and, as the case files show,

these probable cause and fact finding proceedings often

result in an admission by the juvenile that he committed a

lesser offense. If the fact finding hearing results in an

adjudication of delinquency, the juvenile has a dispositional

hearing, at which time the judge determines what form of

punishment or discipline is warranted. The dispositional

hearing determines whether the juvenile is to be sent toa

state facility, secure or unsecure, or released on probation.

N.Y. Family Court Act §753 (McKinney). Probation

prepares a report for the judge at disposition which is

compiled after a full investigation of the juvenile in school,

community and home and a study of relevant intake records.

In 1979, 58.2% of the juveniles held in pretrial deten-

tion* were accused of crimes against property and other

8. There was considerable testimony concerning the type of fa-

cility to which a juvenile is remanded for detention prior to disposi-

tional hearing. Michael Bigley. director of detention services section,

New York State Division for Youth. testified that detention is shért

term care which may last through dispositional stage pending final

placement. Long term care commences at placement pursuant to a

dispos'tional determiration. He testified that in 1978. in New York

City there were 7,362 initial admissions (of both juvenile delinquents

and juvenile offenders) to secure facilities and 50% of the juvenile

delinquents admitted to those facilities were there for 3 days or less

(Tr. 206-07). In 1979, there were 1.216 admissions of juvenile

delinquents to non-secure facilities (Tr. 211-12). In 1979, a total of

8.557 juveniles were admitted to secure facilities ; 2,428 whites, 4,501

blacks and 1,386 hispanics. (Tr. 222).

The testimony aprears to be at odds with the fina! figures set out

in the Report of Chief Administrator (Tables 79, 80, gt, 82 ) for the

calendar year 1979, see text pp. 55a-56a. If we include all of those

detained adding those detained before petition to the figures given

for those detained after petition, and include placement with the

Commissioner of Social Services, Title 2 and Title 3 placements with

the Division for Youth as placement in secure facilities, the total

goa does not coincide with 8,557, the figure given by Mr. Bigley

at le

56a

Appendia C

non-violent crimes; 47.1% were accused of crimes against

persons and other violent crimes. In 1977, 18,447 juvenile

delinquency petitions were disposed of. Pretrial detention

was ordered in 3,546 instances.® At final disposition 47

juveniles were subjected to some form of restricted place-

ment and 594 were placed in Division for Youth under Title

2, and 667 were placed with the Division under Title 3.”°

The latest published statistics are for the year 1979. There

were 17,880 juvenile delinquency petitions filed in the

state." Pretrial detention was ordered in 4,290 cases.”

Of the petitions filed, 932 were dismissed at fact finding ;’*

9. Table 81 and Table 82, pp. 162-165, 1977 Annual Report for

1977 of the Administrative Board of the Judicial Conference and Office

of Court Administration of the State of New York (1978), show that

347 juveniles were detained before the filing of the petition, and 3,546

were detained between the filing of the petition and disposition. If

the latter figure does not include the former, as the text assumes, the

number of juveniles subject to pretrial detention would be 3,793.

10. Tables 83 and &4, pp. 166-169. N.Y. Executive Law § 502 et

seq. (McKinney), authorizes the Division for Youth to establish

youth centers—camps, residences or other buildings for the care,

treatment, education, rehabilitation and guidance of youth between

15 and 18 years of age. The program may include training and service

in conservation, civil defense, disaster relief, etc. Youths assigned

there may be there only part time. It is to such centers that Title 2

placement refers.

Title 3 placement is provided for in N.Y. Executive Law § 510 et

seq. (McKinney), and these are training schools operated by the

Division for Youth for juvenile delinquents under the age of 16 at

the time the delinquent act is committed and under 17 at the time of

placement. These schools are authorized to offer general rehabilitation

programs.

11. Tables 79 and 80, pp. 86-87, Report of the Chief Adminis-

1980 of the Courts for the Calendar Year 1979, State of New York

).

12. Ibid.

13. Tables 81 and 82, pp. 88-89, Report of Chief Administrator

of the Courts, of. cit. supra note 11.

57a

Appendix C

23 were dismissed for other reasons and 292 at the dis-

positional hearing;'* 731 were dismissed for failure to

prosecute ;* 846 were dismissed without prejudice ;'* 4,882

were dismissed in furtherance of justice,’ and 1,617 were

dismissed for other reasons;'* 1,456 petitions were with-

drawn ;** 19 were discharged with warnings ;*° in 725 cases

judgment was suspended ;* 3,511 were placed on probation

without placement;** 17 were placed on probation and

placed in private homes;** 760 were placed with the Com-

missioner of Social Services ;** 412 were placed with the

Division for Youth under Title 2;*° 594 were placed with

the Division under Title 3;°° 2 were placed in restrictive

placement for 5 years, 2 for 3 years and 70 in other forms

of restricted placement.”

IV

The Parties’ Contentions

Petitioners contend that the statute is unconstitutional

on its face and as applied in that it offends the due process

14. [bid.

15. Ibid.

16. Ibid.

17. Ibid.

18. Ibid.

19

20

21

22

. Ibid.

. Ibid.

. Ibid.

. Lbid.

23. Ibid.

24. Ibid.

25. Ibid.

26. Ibid.

27. Ibid.

58a

Appendia C

and equal protection guaranties of the 14th Amendment.

Petitioners argue that the subjective prediction or prog-

nosis of the imminence of future misconduct which § 739

(a) (ii) authorizes as the basis for the pretrial detention

of juveniles is a vague, arbitrary and capricious standard

and that no rationally based prediction or reasoned deter-

mination is possible under the statutory scheme. They

insist that the statute is overbroad and violates equal pro-

tection constraints in authorizing pretrial detention of

juvcuiles, since they are thereby treated differently from

adults, and there is neither a rational basis pertinent to

the differentiation between the two groups, nor any com-

pelling state justification to warrant imposition of the

restrictions imposed on juveniles under the statutory

scheme. Petitioners also argue that the burden the statu-

tory scheme imposes falls more heavily on non-white

minorities and the poor than on whites and the more

affluent, but they stop short of making a specific claim of

a denial of equal protection on that basis.

The attorney general argues pro se that the statutory

scheme is constitutionally and legislatively permissible;

that all judicial and administrative decision making in the

criminal] justice system has the same potential for inac-

curacy in predicting future acts, as does the statute involved

here, but nonetheless the judge’s subjective determinations

as to bail, parole, and length of sentence have been accepted

as appropriate exercises of judicial discretion free of con-

stitutional infirmities; that the statute does not result in

random detention; that pretrial detention does not con-

stitute punishment without trial and does not deny juveniles

any due process or equal protection rights, and in any event,

59a

Appendix C

the compelling interest of the state in reducing the risk of

pretrial crimes by juveniles justifies the difference in the

treatment of juveniles and adults and validates the statute.

V

Determination

A

The issues raised in this litigation are difficult and com-

plex. Petitioners contend that the statutory scheme is at

war with the guarantee of equal protection since juveniles

are subjected to pretrial detention while adults are not.

Both parties argue that the appropriate test to measure the

constitutional validity of § 739(a) (ii) under the equal pro-

tection clause is whether the state has demonstrated a com-

pelling, overriding state interest justifying the legislation,

and no feasible, less drastic measures are appropriate to

accomplish the state’s objective.

In People ex rel. Wayburn v. Schupf, 39 N.Y.2d 682, 385

N.Y.S.2d 518 (1976), the New York Court of Appeals unheld

the Act against an equal protection challenge on the ground

that the statute served a compelling state interest. That

interest as articulated by the court was the juveniles’ emo-

tional and intellectual immaturity, necessitating that they

not be held to the more onerous adult standards of respon-

sibility for their conduct. Moreover, the court reasoned

that immaturity and lack of comprehension caused juveniles

to view criminal conduct less seriously than adults. Ac-

cordingly, procedures designed to prevent further criminal

60a

Appendia C

acts by juveniles accused of delinquency were held to be

justified to protect the public.

If the parties are, and the state court was, correct that

compelling justification and unavailability of any feasible

less drastic alternatives are the criteria to measure the

statute’s validity under the equal protection clause, my task

would be considerably eased. §739 clearly cannot with-

stand a constitutional challenge when the equal protection

test of strict scrutiny is applied.

The record made at trial reveals that roughly 3,546

juvenile delinquents were subjected to pretrial detention

in 1977. The figures on final disposition of all juvenile

delinquencies show that 667 were placed in training schools

of the Division for Youth and 47 others were accorded some

other form of restricted placement. Assuming that the

above 714 juveniles were all among those subjected to pre-

trial detention (an assumption not necessarily correct), the

remaining 2,832 cases resulted in probation to the custody

of the parent, guardian or placement in a foster home, or

placement in a youth camp.

The 1979 figures paint the same picture. Some 17,880

juvenile delinquency petitions were filed. 4,290 juveniles

were held in pretrial detention; 670 were placed with the

Commissioner of Social Services, 412 with the Division for

Youth under Title 2; 594 with the Division for Youth under

Title 3, and 77 were accorded some form of restricted place-

ment. (See ante, pp. 55a-56a). Assuming again that all of

these 1,753 were subjected to pretrial detention, the result

is that more than half such cases resulted in some form of

dismissal or probation. Under any yardstick when at final

6la

Appendiz C

disposition the overwhelming majority of juveniles are

paroled and sent home, the claim that there is a compelling

need to subject them to pretrial detention becomes hard to

credit.”

Sixteen juveniles in the case file histories which make

up the record in this case were on parole from 5 to over 30

days between the time of the commission of the offense and

their 4 739 hearing, with no evidence that in the interim any

further crimes had been committed. Yet they were re-

manded. In some cases there had been no prior court con-

tact, and parole was recommended. Nonetheless, detention

was ordered. These instances show a clear lack of any

compelling justification in the application of the statute.

If a juvenile has been on parole a month, two weeks or 5

days without committing another crime, unless family

courts are assumed to be sorcerers who can foretell future

events, it is difficult to understand the rationale for de-

priving him of his freedom because of the likelihood that

he will commit a crime within 3 to 6 days. Such decisions,

under any circumstances would seem to constitute abuse

of discretion.

It is, of course, clear that neither the 14th Amendment

nor the Bill of Rights’ strictures protect only adults. In

re Gault, 387 U.S. 1 (1967). Moreover, the mere recitation

of benign, compensatory purposes is not an automatic

shield which protects against inquiry into the actual impact

of a statutory scheme, Weinberger v. Wiesenfeld, 420 U.S.

28. I admire the candor of Michael Bigley, who, on being asked

whether he would consider pretrial detention probably unwise if the

ultimate disposition was parole to the youth’s own home or to a foster

home, replied that he would not say it was probably unwise but that

it was possibly unwise. (Tr. 261).

62a

Appendiz C

636, 648 (1975), and in its application demonstrated on this

record, there has been no articulation of the parens patriae

thesis as justification for exercise of the court’s authority

under § 739(a) (ii).

Remand has been deemed warranted in this case because

of the seriousness of the crime, because of prior court con-

tact, because the court always orders detention in certain

cases, because such is warranted to punish the juvenile or,

as Judge Quinones testified, to protect the public. Yet

restraints of minors which might be considered imper-

missible if applied to adults have been justified as further-

ing an appropriate state interest, see e.g. Planned Parent-

hood of Central Missouri v. Danforth, 428 U.S. 52, 102-103

(1976) (Stevens, J., dissenting), and parens patriae, while

not an unlimited justification, Kent v. United States, 383

U.S. 541, 555 (1966), has been the underlying validating

basis for a state’s special treatment of the young. The

high minded purposes of the juenile justice system and

the designation of proceedings involving juveniles as civil,

rather than criminal, serves a benign social function, but

‘*serious questions [arise] as to whether the actual per-

formance measures well enough against theoretical purpose

to make tolerable the immunity of the process from the

reach of constitutional guarantees applicable to adults.’’

Kent v. United States, supra at 555.

Yet, in no case has the United States Supreme Court

subjected a juvenile classification to the strict scrutiny for

classifications based on race, Loving v. Virginia, 388 U.S.

1, 11 (1967); McLaughlin v. Florida, 379 U.S. 184, 191-2

(1964), alienage, Oyama v. California, 332 U.S. 633, 664-66

(1948) ; Korematsu v. United States, 323 U.S. 214 (1944);

63a

Appendix C

Hirabayashi v. United States, 320 U.S. 81 (1943), or where

the right or interest interfered with is characterized as

fundamental, Zablocki v. Redhail, 434 U.S. 374, 383 (1978),

or struck down the differentiation between the treatment

of juveniles and adults because the criteria applicable to

the above classification were not met.

This provision seems to lack the high minded purpose of

protecting the juvenile which is the objective generally

cited to justify deviations from adult standards in the ju-

venile justice system. Rather, the purpose seems to be to

protect society from the juvenile. No articulated rationale

has been set forth on this record which would warrant dis-

advantaging the young on this ground. Nonetheless, I

regard the equal protection challenge to the statute as

insubstantial.

The right of a state to differentiate between adults and

minors is too ingrained in the fabrie of the law for such

classifications at this late date to be held to the test of

strict scrutiny. Even though a pretrial detention interferes

with the juveniles’ personal liberty, that alone would not

seem to warrant application of the strict scrutiny test. See

e.g. Bell v. Wolfish, 441 U.S. 520 (1979). The more ap-

propriate inquiry is whether §739(a)(ii) can be justified

on grounds of rationality, see Weinburger v. Salfi, 422 U.S.

749 (1975), and under this less rigorous yardstick, the

statutory scheme would qualify as meeting the constitu-

tional requirements of equal protection. Equal protection

guarantees deal with invidiously discriminatory classifica-

tions and differentiations. This statute does differentiate

between youth and adults but to paraphrase Justice Powell,

concurring in Zablocki v. Redhail, 434 U.S. 374, 399 (1978),

64a

Appendiz C

to subject § 739 to a compelling state purpose inquiry would

cast doubt on the network of laws that the states have de-

vised to deal with problems of the young—delinquency,

neglect and care. Accordingly, I turn to wuat I regard as

a more substantial challenge to the statute.

B

The statutory scheme curtails the freedom of one pre-

sumptively innocent, albeit a juvenile, on the prediction or

hunch of a judge that unless held in custody he will commit

another crime within 3 to 6 days. The more fundamental

consideration, therefore, is whether on its face or as ap-

plied, § 739(a) (ii) meets due process standards. There is

little doubt that due process is a requisite to the constitu-

tional validity of proceedings which may result in the cur-

tailment of a juvenile’s freedom, since all ‘‘individuals

possess a liberty interest in being free from physical re-

straint.’’ Greenholtz v. Inmates of Nebraska Penal & Cor-

rectional Complex, 442 U.S. 1, 33 (1979) (Marshall, J. dis-

senting). While the limits of the liberty interest protected

from deprivation without due process have never been pre-

cisely defined, it has ‘‘always been thought to encompass

freedom from bodily harm and punishment. See Rochin

v. California, 342 U.S. 165 (1952). It is fundamental that

a state cannot hold and physically punish an individual

except in accordance with due process of law.’’ Ingraham

v. Wright, 430 U.S. 651, 673-74 (1977).

Juvenile proceedings which may result in confinement

to state institutions because of alleged misconduct must

have the essential ingredients of fair treatment. In re Win

65a

Appendix C

ship, 397 U.S. 358, 359 (1970); In re Gault, 387 U.S. 1, 18,

19 (1967) ; In the Matter of W & 8,19 N.Y.2d 55, 277 N.Y.S.

2d 675 (1966). Application of due process standards may

not be defeated because of the labels attached by the state

to the pertinent proceedings, Jn re Gault, supra, 387 U.S.

at 50-51; In re Winship, supra, 307 U.S. at 366, and a ‘‘claim

that the traditional requirements of due process are appli-

cable in the context of pretrial detention’’ has not been

foreclosed. Gerstein v. Pugh, 420 U.S. 103, 127 (1975)

(Stewart, J. concurring).

The predictive § 739 determination is made before any

proceeding, either adversarial or neutral, has found prob-

able cause or rendered a determination on the merits that

the juvenile committed the delinquent act charged. The Act

violates due process requirements because: (1) it gives the

judge a license to act arbitrarily and capriciously in a § 739

prediction of the likelihood of future criminal conduct which

cannot result from a reasoned determination, (2) pretrial

detention without a prior adjudication of probable cause

is, itself, a per se violation of due process, and (3) in addi-

tion, constitutes punishment that is constitutionally imper-

missible under the due process clause.

1. The first defeat is perhaps the most pernicious. The

judge is empowered to make a prediction about the prob-

ability of au individual committing a crime if released. No

guidelines for making that determination are set out in the

statute, and none has been adopted by the court. The

judge’s determination is moored to no concrete or reason-

ably determinable yardsticks. We were advised at trial

that each judge utilizes his own personal standards. Ae-

66a

Appendix C

cordingly, there can be no uniform application of § 739,

since each judge’s subjective views and biases must neces-

sarily govern. The whole process is riddled with subjec-

tivity and caprice and confers upon the judge ‘‘a license

for arbitrary procedure.’’ Kent v. United States, supra at

553.

A judge is not an expert criminologist and even these

professionals who have studied more about an individual’s

criminal propensities than the rest of us confess, as we shall

see later, an inability to perform the task 4 739 imposes on

the judge. Thus, ‘‘[a] serious question of procedural due

process is raised by this feature of standardless discretion,

particularly in light of the hazards of prediction .. .’’

Zablocki v. Redhail, 434 U.S. 374, 402 n.4 (1978) (Powell, J.

concurring). Moreover, the judge is accorded total and un-

bridled discretion since effective review is not possible,

see New York ex rel. Wayburn v. Schupf, supra.”

Although the probation intake officers are required to

follow established criteria in determining whether to ad-

just a case or pursue it through the courts, they make their

recommendations whether to release or remand the juvenile

based on ‘‘whether they feel a child may be a calculated

risk if returned to the community.’’ (Tr. 161). Thus, as

the study undertaken by Professor Wilkins referred to in

29. The short span of pretrial detention makes effective review

impossible. Detention is over before the appellate review can be

obtained. In New York ex rel. Wayburn v. Schupf, and, in this case,

motions to dismiss on grounds of mootness were denied because to

hold otherwise would have meant insulating § 739 from constitutional

challenge. Nonetheless, in reality no juvenile ordered inco pretrial

detention can test the validity of that adjudication while he is being

held in custody pursuant thereto,

67a

Appendix C

his trial testimony demonstrated, juveniles under such cir-

cumstances may have their liberty curtailed because they

possess ‘‘characteristics that annoy’’ the parole officer or

judge, or because they may be viewed as ‘‘uncooperative.”’

(Tr. 317). It is clear that the judge decides on pretrial de-

tention for a variety of reasons—as a means of protecting

the community, as the policy of the judge to remand (Ex-

hibit 6a, p.3), as an express punitive device (Exhibit 42,

p. 11), or because of the serious nature of the charge. (Tr.

465, Exhibit 13a, p.3), among others.

Probation intake cannot undertake a thorough investi-

gation of the youth. The probation officer learns what delin-

quency is charged. This may be only marginally helpful

because as a general rule the original charge is considerably

reduced or modified after a probable cause or fact finding

hearing.” He evaluates the case on the facts presented by

the police officer and the juvenile. He ascertains whether

the juvenile has had any prior court contacts and the nature

of those contacts. He is not equipped to make any sophisti-

cated or in depth evaluation of the charges or the child,

particularly in light of time constraints. If the family

court guidelines require him to process the case through the

court, he must recommend, on the limited information pro-

vided, whether the juvenile should be detained or paroled.

30. Justice Stevens dissenting in Baker v. McCollan, 443 U.S.

137, 154 n.13 and accompanying test (1979), pointed to a study of

the District of Columbia, Brosi, A Cross-City Comparison of Felony

Processing (1979) which showed that 49% of those arrested are

never tried at all, with all charges being dropped before trial, and

another study, Kamisar, LaFave and Israel, Modern Criminal Pro-

cedure (1974) which states that nationally 40% of all adults arrested

are released without charges being filed.

68a

Appendix C

While the time of probation intake is limited, there is

considerably more time available than the judge may allo-

cate. The judge has no opportunity to interview the juve-

nile. Whatever he hears in opposing remand comes from

counsel for the juvenile. If counsel is court appointed, and

this is the typical case, he takes on responsibility for the

proceedings only moments before convincing reasons must

be presented to the court for not ordering pretrial deten-

tion. The judge has roughly 5 to 15 minutes to determine

whether there is the likelihood that the juvenile would

commit another crime before the return date if released.

At trial, plaintiff's expert, Professor Leslie Wilkins,

stated that he would be surprised if recommendations based

on intake interviews were better than chance and assessed

the judge’s subjective prognosis about the probability of

future crime as only 4% better than chance—virtually

wholly unpredictable. He testified that no method had yet

been devised which could predict with any acceptable degree

of accuracy that a juvenile shall commit a crime, particu-

larly the commission of an offense in a short space of time,

as the judge must do in making his 4 739 decision.

A review of the literature supports Professor Wilkins’

observations and shows that no diagnostic tools have as

yet been devised which enable even the most highly trained

criminologists to predict reliably which juveniles will en-

gage in violent crime.

As one of the leading scholars on the issue has put it:

[t]he ability to predict which juveniles will engage in

violent crime, either as adolescents or as adults, is

very poor.

6Ya

Appendix C

The conclusion .. . that ‘‘there has been no successful

attempt to identify, within... offender groups, a

subclass whose members have a greater than even

chance of engaging again in an assaultive act’’ is as

true for juveniles as it is for adults. It holds regard-

less of how well trained the person making the pre-

diction is—or how well programmed the computer—

and how much information on the individual is pro-

vided.

J. Monahan, The Prediction of Violent Behavior in Juve-

niles, 10-11 (paper presented at National Symposium on

the Serious Juvenile Offender in Minneapolis, Sept. 19-20,

1977) (emphasis deleted), quoted in Feld, Reference of

Juvenile Offenders for Adult Prosecution: The Legislative

Alternative to Asking Unanswerable Questions, 62 Minn.

L.Rev. 515, 541-42 (1978).

Moreover, not only does it appear that one cannot pre-

dict dangerousness with an acceptable degree of accuracy,

but, to the extent that dangerousness can be predicted at

all, there is a substantial problem of overprediction, that

is, to identify persons potentially dangerous who, if sub-

sequently released, would engage in no further violent or

even criminal behavior. If a true positive is a person, who

is predicted to and in fact engages in such behavior, then

a false positive would be someone predicted to be danger-

ous but who would not engage in violent or criminal be-

havior. Thus, overprediction can be expressed in terms of

the ratio of false positives to true positives.

Monahan also found that

violence is vastly overpredicted whether simple he-

havioral indicators are used or sophisticated muiti-

70a

Appendix C

variate analyses are employed, and whether psycho-

logical tests are administered or thorough psychiatric

examinations are performed.

J. Monahan, supra, quoted in Schlesinger, The Prediction

of Dangerousness in Juveniles: A Replication, 24 Crime &

Delinquency 40, 47 (1978).

The literature on the prediction of dangerousness, dis-

tinguishes two methods for anticipating future behavior:

clinical prediction,*' on the one hand, and statistical or

actuarial prediction, on the other.

31. CLInicaL PREDICTION

In the face of the literature about clinical predictions, it would be

impossible to be sanguine about relying on clinical methods. Feld,

supra at 543, asserts that, “In view of the uncertainties and incon-

sistencies typically associated with social science research, the clear-

cut superiority of actuarial methods over clinical methods is startling.”

Other researchers, Hermann Mannheim and Leslie Wilkins reported

that their use of statistical prediction techniques proved to be twice

as accurate as clinician's “intuitive” judgment. See Koerin, supra

at 53, and see Tr. 314, and Wilkins, passim, Tr. 314-384. In light of

the universal pessimism concerning the prospects of making accurate

and discrete predictions of future criminal behavior using statistical

methods, and the latter’s recognized “clear-cut” superiority over clini-

cal methods, the clinician must be disheartened.

Schlesinger, supra, noted the disparity between the general claim that

prediction of violence was futile, on the one hand, and the claims of 9

studies, on the other, purporting to make such predictions of violent

behavior in children. Employing 30 factors identified amongst the 9

studies, Schlesinger attempted to predict violent behavior in 122

children, based on their presentence evaluations from family court in

California. He found a very low incidence of violent behavior among

the juveniles—only 5.7% ; no significant relationship among the pre-

dictor variables, clinician’s recommendations and criterion behaviors ;

and no significant relationship between predictions of dangerousness

and subsequent violent behavior.

Cocozza & Steadman, The Failure of Psychiatric Predictions of Dan-

gerousness: Clear and Convincing Evidence, 29 Rutgers L. Rev.

(footnote continued on next page)

32. Footnote appears at page 73a.—Ed.

7la

Appendiz C

(footnote 31 continued )

1084, 1094-1101 (1976), reported on their study which followed up

criminal defendants who had been found incompetent to stand trial

in New York City. These defendants had been evaluated by psy-

chiatrists to determine the defendant's dangerousness, although no

definition of that term was provided. The difference in assaultive

behavior between those diagnosed as dangerous and those not so diag-

nosed was found not to be statistically significant. The authors con-

cluded that the study presented clear and convincing evidence of the

clinicians’ inability to predict assaultive behavior. /d. at 1098-99.

See also Dix, Clinical Evaluation of the Dangerousness of “Normal”

Criminal Defendants, 66 Va. L. Rev. 523, 542-44 (1980) (reviewing

Cocozza and Steadman study). Examination of leading studies is

said to confirm the inadequacy of evidence of the accuracy of clinical

assessments. Jd. at 544,

Those studies that indicate that it may be possible to develop reliable

clinical methods of prediction also indicate how unlikely it would be

for the family court judge’s evaluations to be reliable. In The Clinical

Prediction of Dangerousness, 24 Crime And Delinquency 28 (1978),

Cohen, Groth and Siegel reviewed the literature criticizing clinical

predictions and discussed two newer studies (Kozol, Boucher and

Garofalo studying male sexual offenders over a ten-year period, and

Hodges stulying dangerous offenders over a three-year period) and

concluded that these studies show “considerable improvement over

the statistical studies... The two studies demonstrate, we believe,

that a conclusion about our capability of predicting dangerousness is

premature.” Jd. at 35.

In The Diagnosis and Treatment of Dangerousness, 18 Crime &

Delinquency 371 (1972), Kozol, Boucher and Garofalo reported on a

ten-year study of almost 600 convicted male offenders, most of whom

had committed a sex crime, compounded in some cases by extreme

violence. On the basis of the initial diagnosis, the authors concluded

that more than half of the subject offenders were not dangerous. Of

these, 8.6% of those who were released subsequently committed “seri-

ous assaultive crimes.” After receiving treatment for an average

period of 43 months, 82 additional patients were recommended for

release. Of these, 6.1% subsequently committed serious assaultive

crimes. Another 18 patients were released against the clinicians’

advice after treatment for an average period of 30 months with a

recidivism rate of 27.8%.

The Hodges study, recorted in Cohen, et al, at 35, followed up on

447 dangerous offenders for three years, and found that of those

recommended by the clinical staff for incarceration who were not in-

carcerated by the court, 81% subsequently committed another offense

(footnote continued on next page)

72a

Appendix C

(footnote 31 continued)

(not necessarily a violent crime). Of those committed to the treat-

ment center but later released against staff recommendations, 71%

committed a new crime, but of those committed and later released on

the staff's recommendations, only 37% were later arrested for a new

crime.

These newer studies do not show that a family court judge could

make reliable predictions. Rather, by highlighting what is required

for a reliable clinical prediction to be made, they show why the judge

could not be expected to make reliable ev aluations along clinical lines.

As a preliminary matter, each of these newer studies ranged over a

population that was in some respect selected before the clinicians be-

gan their work. The offenders studied were a small portion of the

total inmate population. Thus, it is unclear how well these results

could be generalized to the situation of the family court. In particular,

since, on actuarial grounds, the fact that these individuals studied

had been convicted makes it more likely that they will be “dangerous.”

The same cannot be said of the juveniles who were detained, or who

risk detention, before trial. Moreover, each of the studies involves

an initial classification by the clinical staff on the basis of which a

substantial number of offenders are recommended for release. (In

the Kozol, et al study, supra, over half were so released.) Even this

initial diagnosis is, in terms of its depth, detail and sophistication well

beyond what could be hoped for in the family court setting. In Kozol,

supra, the initial diagnosis “ts based on clinical examinations, psy-

chological tests, and a meticulous reconstruction of the life history

fof the offender] clicited from multiple sources—the patient himself ;

his family, friends, neighbors, teachers, and employers; and court,

correctional, and mental hospital records. . .” 18 Crime & Delin-

quency at 383. Similarly, Cohen, et al, describe the norm for clinical

predictions :

In evaluating an offender, the clinician bases his or her prediction

on an extended period of study, makes use of a variety of pro-

tessiona! personnel, and consults diverse clinical, behavioral, and

social sources of data. Typically, this involves a minimum of a

sixty-day period.

18 Crime & Delinquency at 30-31.

Finally, these studies are apparently open ended in their definition

of recidivism. As was noted anée, there is a wide discrepancy be-

tween the violence that may be indicated in general and that may be

indicated for the relevant period of pretrial detention. There is no

basis for supposing that a family court judge could predict reliably

the juveniles who could be dangerous within the pretrial period.

73a

Appendix C

32. STATISTICAL PREDICTION

In reporting on both the current developments in statistical prediction

and their own study, Wenk, Robison and Smith stated “The present

state of the art holds little promise for the development of a prediction

instrument that would warrant implementation in actual preventive

or correctional programs.” Can I’iolence Be Predicted?, 18 Crime &

Delinquency 393, 401 (1972). While an expectation of increasing

statistical sophistication might lead one to suppose that, in the iull-

ness of time, a reliable predictive method could be achieved, there is

no basis on which to suppose that the family court judge's evaluations

could be expected to succeed where other attempts have failed.

For a number of reasons, the study reported in Preventive Detention:

An Empirical Analysis, 6 Harv. Civ. Rights Civ. Lib. Rev. 289

(1971) (“Harvard study”) is particularly telling. This study ex-

amined the District of Columbia Court Reform and Criminal Proce-

dure Act of 1970, Pub. L. No. 91-358, 84 Stat. 473 (July 29, 1970)

(“preventive detention legislation”), which provides for the “preven-

tive pretrial detention of arrested persons feit to pose a threat to the

safety of the community.” More specifically, under this law

any defendant charged with a “dangerous” crime, with obstruct-

ing justice, or with a “violent” crime if certain conditions are

met, may be held for pretrial detention hearing, at which a judi-

cial officer is to determine whether any form of release can satis-

factorily protect the community.

Id. at 303-04 (footnotes omitted). If the officer does not so conclude,

he may order the defendant held for up to sixty days. In deciding

which criminal defendants pose so great a danger to the community

that they should be detained without bail, the statute charges the

judicial officer to

take into account such matters as [1] the nature and circum-

stances of the offense charged, [2] the weight of the evidence

against such person, [3] his family ties, [4] employment, [5]

financial resources, [6] character and mental conditions, [7] past

conduct, [8] length of residence in the community, [9] record

of convictions, and [10] any record of appearances at court pro-

ceedings, flight to avoid prosecution, or failure to appear at court

proceedings.

Id. at 309. The statute does not assign a relative importance to these

various factors.

The Harvard study tested the reliability of two numerical dangerous-

ness scales, each of which combines in one index the saltedie: a

(footnote continued on next page)

74a

Appendix C

(footnote 32 continued )

fendant's score on all of the variables. The first scale (DS-1) was

fashioned by assigning weights to the variables on the basis of a

subjective assessment of their importance. The second scale (DS-2)

“was constructed using a statistical technique, readjusting the weights

of the variables on the basis of their actual correlations to recidivism

in the sample.” /d. at 310.

Each scale could be used by selecting a cut-off score, above which

the individual would be detained. For DS-2, no cut-off point existed

for which more recidivists than non-recidivists would be detained.

Thus, over-prediction is a substantial problem. The lowest false posi-

tive to true positive ratio would be 1.5 to 1.0. To detain all true

positives, 225 non-recidivists would be included along with the 41

recidivists. A point at which 63% of the recidivists would be retained

would still represent a false positive to true positive ratio of 1.5 to 1.

Much more startling are the results of the unsophisticated DS-1 scale.

At its best, this scale would select correctly only about 30% of the

time—that is, 7 false positives for every 3 true positives detained.

To ensure that all recidivists were detained, in effect 8 nonrecidivists

would have to be detained for every recidivist. Only by detaining

fewer recidivists can this high degree of overprediction be avoided:

When 40% of the recidivists were detained, the ratio was considerably

reduced but was still high, a ratio of 2.88 to 1.

Neither of these sets of results actually measure what would happen

in pretrial detention. First, the accurate and detailed information

used in the study is not normally available to the judicial officer in a

§ 739 proceeding. Second, the Harvard study's definition of recidi-

vism is not limited in time but relates to arrests and convictions

occurring perhaps months following initial arrest and release. An

accurate measure of the effectiveness of pretrial detention must con-

sider the number of persons who would have committed crimes during

the detention period only, and under this measure, the 60% accuracy

figure for DS-2 falls to about 15%, and the 30% figure for DS-1

falls to about 5%.

In addition to the substantial body of literature in agreement that no

reliable statistical prediction has been devised, the Harvard study

indicates why the tamily court judge’s determinations would be un-

reliable. Even to the extent that a set of variables could be attributed

to the judge’s evaluation, they would not have been weighted in a

manner to enhance statistical reliability, and thus, the expectable

range of accuracy would be that of the DS-1 scale. Further, since

the judge’s assessments bear only on pretrial detention, the ex ble

range of accuracy would likely be very low. Finally, the difficulty

with overprediction would be substantial.

75a

Appendix C

A clinical prediction entails a clinician reviewing what-

ever information is deemed relevant and making a pre-

dictive judgment on the basis of professional training

and intuition. Clinical prediction requires an integra-

tion of available information about the individual in

order to develop ‘‘some psychological hypothesis re-

garding the structure and dynamics of this particular

individual.’’

Feld, supra at 543 (quoting P. Meehl, Clinical Versus Sta-

tistical Prediction 4 (1954)). Clinical methods rely on the

use of trained psychiatric or social science staff. attempting

a ‘‘wide band procedure in which a broad range of infor-

mation about the individual is gathered from sources such

as interviews, social history and projective testing.’

Koerin, Violent Crimes, Prediction and Control, 24 Crime

& Delinquency 49, 51 (1978). Fashioning the hypothesis

about the particular individual is frequently said to be

done in terms of diagnostic frame of reference—a scheme

of important personal variables that figure in the individ-

ual’s personality and some sense of the dynamics of the

personality. See ¢.g. Kozol, Boucher and Garofalo, The

Diagnosis and Treatment of Dangerousness, 18 Crime &

Delinquency 371, 384-86 (1972).

Actuarial or statistical prediction, on the other hand

entails the development of probability relationships

between predictor variables, such as age and prior

offenses, and the behavior to be predicted—violence. It

requires an examination of the individual only to de-

termine the presence of the predictor variables.

Feld, supra at 543. In statistical prediction, the individual

is, in effect, classified in terms of the presence or absence of

76a

Appendix C

the predictor variables. Given the classification, the fre-

quencies of behaviors can be concluded for persons belong-

ing to the same class. Id.

The family court judge’s evaluation of a juvenile bears

a superficial resemblance to both methods in the sense that

it lacks the refinements of each. The judge’s assessment

could not properly be called a clinical prediction, unless it

could be supposed that the judge’s experience on the bench

and his judgment of human nature substitutes for a clini-

cian’s training; his confrontation with the accused juvenile

substitutes for a diagnostic interview and examination; and

the juvenile’s arrest record substitutes for a patient’s his-

tory. Nor is the evaluation by the judge in any way com-

parable to a rigorous statistical prediction. In comparison

to the large number of variables used in the studies of sta-

tistical prediction, apparently very little data is made avail-

able to the judge. And, what is presented is crude and un-

refined. There is no guarantee that significant information

is available to him, or, if it is there, that it is perspicuous.

Finally, there is no use of follow up studies to refine and

reformulate the statistical prediction method that, im-

plicitly, the family court judge might be said to be using.

Accordingly, he would continue to rely on useless or even

incorrect data and assign incorrect weight to the various

variables utilized.

The literature generally agrees that no reliable method

of predicting dangerousness, whether clinical or actuarial

in nature, exists at this time. It follows a fortiori that the

family court judge’s opinion, lacking the refinements of

each sort of predictive method, is also unreliable. Further,

even to the extent that the literature on each type of method

77a

Appendia VC

is sometimes optimistic about the prospect of developing a

reliable clinical or statistical method, nothing can properly

be inferred about the judge’s evaluation of juveniles, since

the indications of optimism reflect methodological improve-

ments which ave not utilized in the judge’s determinations.

Thus, it is clear that juveniles who are subjected to 4 739

detention have their freedom curtailed by judgments that

are untrustworthy and uninformed and without the requi-

site rationality which due process mandates.

In Jurek v. Texas, 428 U.S. 262, 275-6 (1976), an attack

on a Texas statute, requiring a jury at the sentencing pro-

ceedings following conviction for a capital offense to con-

sider whether the evidence established beyond a reasonable

doubt that the defendant would commit criminal acts of

violence, that would constitute a continuing threat to soci-

ety, was rejected in an opinion by Justices Stewart, Powell

and Stevens. They said:

It is, of course, not easy to predict future behavior.

The fact that such a determination is difficult, however,

does not mean that it cannot be made. Indeed, predic-

tion of future criminal conduct is an essential element

in many of the decisions rendered throughout our crim-

inal justice system. The decision whether to admit a

defendant to bail, for instance, must often turn on a

judge’s prediction of the defendant’s future conduct.

And any sentencing authority must predict a convicted

person’s probable future conduct when it engages in

the process of determining what punishment to impose.

... The task that a Texas jury must perform in an-

swering the statutory question at issue is thus basically

no different from the task performed countless times

every day throughout the American system of criminal

78a

Appendix C

justice. What is essential is that the jury have before

it all possib.e relevant information about the individual

defendant whose fate it must determine. Texas law

clearly assures that all such evidence will be adduced.

(footnote citations omitted)

The attorney general argues to the same effect, but the

views expressed by the Justices in Jurek and the argument

of the attorney general that courts are constantly engaged

in predicting future conduct afford no basis for validating

a 4 739 determination.

Denial of bail because of a risk of non-appearance is

usually made after a hearing which reveals that the defend-

ant is in good health, has no roots in the community, no

family ties, is not employed and owns no property, has

possible access to financial resources and no recognized

attachments which would assure his appearance at trial.

A sentence is imposed after full investigation of the defend-

ant’s background. The Texas jury in Jurek, as in bail and

sentencing cases, had all possible relevant information

about the derendant, and it had heard evidence adduced at

trial and found him guilty beyond a reasonable doubt of an

offense for which the defendant could be sentenced to death.

The family court judge in making a § 739 decision knows

nothing about the juvenile if he is a first time offender.

The judge, of course, has the charges before him, but he

also should know that the charges will surely be reduced

at probable cause or fact finding. If the juvenile has had

prior court contact, the judge knows that he has before

him a recidivist, but at that point he does not know the ex-

tent of the juvenile’s personal involvement, the extent to

79a

Appendiz C

which the charges have been inflated and whether probable

cause will be found. He must operate on intuition and his

personal predilections, the antithesis of reasoned action.

Arbitrary and capricious adjudications that may de-

prive a juvenile of his freedor because of a feeling that a

probation officer and judge have that the juvenile will com-

mit a crime if released—a feeling that is intuitive rather

than reasoncd—-are fundamentally offensive to a concept of

ordered liberty in a free society.

Moreover, even aside from the innate inability to sup-

port a 4 739 order of pretrial detention as a rational or rea-

soned judgment, the record is replete with § 739 determina-

tions that constitutes arbitrary and capricious action in its

erudest and rawest form. Whether the juvenile was a first

offender with no prior conduct, whether the court was ad-

vised that the juvenile was an obedient son or was needed

at home, whether probation intake recommended parole, the

case histories in this record disclose that it was not unusual

for the court to discount these considerations and order

remand based on a 5 to 15 minute evaluation. See e.g.,

transcript of proceedings in case file histories of Carlos

Fargas, Johnny McArthur, Christopher Cox, Glen Maloney,

Wade Forde, F: incisco Ramos, Jerome Basnight, Jose

Cruz.

What seems to be the most patently arbitrary action,

however, occurs in those cases in which the juvenile is pa-

roled to the custody of his parents or gnardians after the

incident, has been home on parole ranging in the case his-

tories in this record from roughly & days to over a month

prior to the § 739 hearing, and even though there is no

80a

Appendix C

showing of any other infraction while on parole, the judge

nonetheless orders remand purportedly because there is a

risk that the juvenile will commit a new crime before he is

tried on the instant offense. Whatever meager rationale

may exist in other situations to warrant ordering the juve-

nile confined pursuant to a 4739 determination, remand is

wholly unjustified and unsupportable in these circum-

stances, and if the determination could be tested on review,

it would surely be set aside as a clear abuse of discretion.

The examples in this record are such as to indicate that

a § 739 remand is not unusual even in such cases. For ex-

ample Carlos Fargas was arrested on April 24, 1979, and

paroled to the custody of his parents. His §739 hearing

occurred on June 6, some 43 days later. His mother was

sick in the hospital. Nonetheless, he was ordered remanded.

Similarly, Luis and Sammy Rosario were charged with in-

volvement in a delinquent act which occurred on March 2,

1978. Both were on parole from March 2 to March 15 when

their 4739 hearing took place. Both were remanded.

Johnny McArthur was involved in delinquency on October

12, 1977. He was on parole from that date until his 4 739

hearing on November 28, 1977. His mother spoke highly

of Johnny, but he was remanded. Christopher Cox, Glen

Maloney and Wade Forde, along with Clarence Smith and

Alex Michael, were involved in an incident on October 13,

1976, and paroled to the custody of their parents. At the

§ 739 hearing on November 12, in response to a court in-

quiry, the police officer stated that the boys had not given

him any trouble. Smith, who had private counsel, and

8la

Appendia C

Michael were paroled. Cox, Maloney and Forde, however,

were remanded. There is nothing in the record to indicate

the reason for the difference in treatment. Cox who was

13 was remanded and Michael, who was 15, was paroled.

Probation intake had recommended parole for all. None

had had any prior record

Francisco Ramos was charged with a delinquency on

March 4, 1978, and was on parole from March 4 to his § 739

hearing on March 17. While this was his 9th arrest and

he was on parole on other matters, he had been reporting

regularly. Parole was recommended. He was remanded.

Jerome Basnight was free on parole for 6 days after his

delinquent act, from October 14, 1977, until October 20,

1977. At his ¢ 739 hearing on the latter date, despite this

being his first court contact, he was remanded. Jerome

Cruz was on parole from March 7, 1977, until his § 739 hear-

ing on March 25, 1977. This was his first court contact, but

he was remanded.

Carl Harris and Michael Taylor were free on parole

from March 5, 1977, to March 17, 1977; Tyrone Parson was

free on parole from November 6, 1976, to December 1, 1976;

Daniel Nelson was free on parole from April 19, 1977, to

May 3, 1977; and Daniel Gregoire was free on parole from

August 23, 1977, to September 20, 1977. Each was re-

manded. It is conceded that these juveniles had prior court

contacts. In the case of Parsons, there had been 7 such

contacts, and in the case of Gregoire, 6 such prior contacts,

five of which had been dismissed. While evidence of prior

delinquency may make remand seem less egregious than the

other listed examples, arbitrary use of 4 739 power is none-

theless clearly manifest when a juvenile comes to court

82a

Appendix C

days, weeks or more than one month after the charged in-

cident without any showing of any intervening criminal act

and is nonetheless remanded because of the court’s pro-

fessed belief that he will commit a crime before the retura

date. Such determination under those circumstances is

both irrational and unreasoned. A statutory scheme that

permits an individual’s freedom to be restricted pursuant

to that kind of irrational behavior must be condemned

under the due process clause. See Kent v. United States,

supra; Board of Regents v. Roth, 408 U.S. 564, 572 (1972).

2. A juvenile subjected to pretrial detention has not as

yet had a ‘‘judicial determination of probable cause which

the Fourth Amendment requires as a prequisite to extended

restraint of liberty following arrest.’’ Gerstein v. Pugh,

420 U.S. 103, 114 (1975); Bell v. Wolfish, 441 U.S. 520, 526

(1979). When a juvenile is arrested and held in custody

he must be taken before a family court judge within 24

hours for a 4739 hearing. The judges may postpone the

hearing for another 24 hours. No probable cause deter-

mination is made before the 4739 hearing. The juvenile

at this stage is without counsel until he appears for the

§ 739 hearing. In some instances he is before the court on

a delinquency petition filed on information and belief. That

is, the charges in the petition are not verified by someone

with direct knowledge of what took place. If ordered re-

manded, a fact finding hearing must occur 3-6 days there-

after. That hearing may be delayed for as long as 14 days

after the § 739 hearing but in such a case a probable cause

hearing must be held within 72 hours of the § 739 hearing.

Accordingly a juvenile may be held in pretrial detention

under a 4739 determination for as long as 5 days prior to

83a

Appendix C

any proceedings being held, neutral or adversary, pursuant

to which a judicial determination of probable cause is made.

The burdens of pretrial detention are substantial to

impose on a presumptively innocent man, even when there

is probable cause to believe he has committed a crime.

Baker v. McCollan, 443 U.S. 137, 153, (1979) (Stevens, J.,

dissenting). To allow a state to impose these burdens on

a juvenile before the state has taken the initial validating

step of establishing its right to restrict the individual’s

liberty, in order to insure his presence at trial, would seem

to be at war with accepted concepts of due process of law.

While not every disability inflicted during pretrial re-

straint amounts to punishment in the constitutional sense,

Bell v. Wolfish, supra, 441 U.S. at 537, and there is clearly

a distinction between punitive measures, imposition of

which the constitution forbids prior to an adjudication of

guilt and regulatory restraints that may be permissible,

id.; Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-167,

186 (1963), the Act at issue here licenses a judge of the

family court, acting on an intuitive hunch that the juvenile

is probably guilty, to treat an adolescent like a convict until

his innocence is established. In a society riddled with vio-

lence and fearful of crime, this approach may seem appro-

priate. Whatever current social imperatives might lead

us to wish to deal with the problem of juvenile delinquency

on the above basis, the presumption of innocence is in-

grained in the fabric of our fundamental law, and the

prerogatives § 739 permit contravene guaranties and rights

we have long considered fundamental. See e.g., Ingraham

v. Wright. Pretrial adult detainees held because they could

not meet the terms of bail have the presumption of inno-

R4a

Appendix C

cence even though there has been a probable cause deter-

mination. Such detention has been held to be regulatory,

not punitive, see Bell v. Wolfish. but juveniles held in pre-

trial detention present a stronger case of innocence than

the adult. There has been no probable cause determination

as to them, and ‘‘under the Due Process Clause a detainee

may not be punished prior to an adjudication of guilt in

accordance with due process of law.’’ Bell v. Wolfish,

supra at 535.

3. When a court pronounces the judgment that a youth

must be incarcerated under 4 739 because he or she is likely

to commit additional crimes if released, the act of incar-

ceration constitutes punishment which cannot constitution-

ally be imposed prior to an adjudication of guilt. Such a

decision to incarcerate offends the due process clause of

the 14th Amendment because it is imbued with what have

long been recognized as the three essential attributes of

punishment: it inflicts a deprivation of a constitutionally

protected liberty or property interest; it is officially im-

posed rather than being the spontaneous act of an errant

official, see Hernandez v. Lattimore, 612 F.2d 61, (2d Cir.

1979); and it stigmatizes the youthful detainee in a way

that associates him with criminal behavior.

Whether a deprivation of liberty or property constitutes

‘*punishment’’ has often turned on the criminal or non-

criminal nature of the behavior for which it is imposed.

Compare Trop v. Dulles, 356 U.S. 86 (1958) (loss of citizen-

ship for desertion from armed forces held to be punish-

ment) with Perez v. Brownell, 356 U.S. 44 (1958) (loss of

citizenship for voting in foreign election held not to be

punilshment). See also Lipke v. Lederer, 259 U.S. 557

85a

Appendix C

(1922); United States +. LaF ranca, 282 U.S. 568 (1931).

In the latter two cases the regulatory or penal character of

a tax depended on its ‘‘involving the idea of punishment

for infraction of the law.’’ 282 U.S. at 572. Similarly, in

Kennedy v. Mendoza-Martine:, supra, the automatie for-

feiture of citizenship for draft evaders was held to consti-

tute punishment.

However, ‘‘punishment’’ is not limited to deprivations

based on having committed a specific, identifiable crime.

It is sufficient if the person is stigmatized as disreputable

in a manner closely analogous to the process that occurs

upon a formal finding of criminal guilt. In United States

v. Lovett, 328 U.S. 303 (1946), the termination of employ-

ment for government employees ‘‘found guilty of dis-

loyalty’’ was characterized as punishment notwithstanding

the absence of any specific law making disloyalty a crime.

328 U.S. at 316. A similar process of stigmatization occurs

with juveniles who are incarcerated because of anticipated

imminent criminal behavior notwithstanding the court’s

inability to predict or specify what crimes they will commit.

The sharp distinction hetween pretrial detention of

juveniles § 739 and pretrial detention of adults for failure

to meet bail is apparent when w: consider the criteria

traditionally used to distinguish punitive from regulatory

impositions:

Whether the sanction involves an affirmative disability

or restraint, whether it has historically been regarded

as a punishment, whether it comes into play only on a

finding of scienter, whether its operation will promote

the traditional aims of punishment—retribution and

deterrence, whether the behavior to which it applies is

86a

Appendix C

already a crime, whether an alternative purpose to

which it may rationally be connected is assignable to it,

and whether it appears excessive in relation to the

alternative purpose assigned...

Kennedy v. Mendoza-Martinez, supra, 372 U.S. at 168-69;

also see Bell v. Wolfish, supra, 441 U.S. at 537-538. Bail is

set for adults for the specifie purpose of assuring the de-

fendant’s appearance at trial, and as such it may not be

‘Cexcessive.’? U.S. Const. 8th Amendment. Excessiveness

is determined in relation to this specific purpose. A court

may not impose higher bail than appears ‘‘reasonably

necessary’’ to effectuate the justifying reason for the

restraint. Stack v. Boyle, 342 U.S. 1 (1951).

In contrast to the rather specific delimited purpose for

which bail is set, the purposes of 4 739—to protect society

from juveniles’ criminal conduct—are not sufficiently dis-

tinguishable from those of the juvenile justice system as a

whole to constitute an ‘‘alternative purpose.’’ Moreover,

even if they did constitute such, the inability of trial judges

to predict which juveniles will commit crimes, see discus-

sion ante pp. 66a-79a ef. seq., means that any given decision

to detain cannot ‘‘rationally be connected’’ with the pur-

pose behind it. Thirdly, the stigmatizing of juveniles as

prospective or habitual criminals prior to trial is such a

departure from basic principles of due process that it ‘‘ap-

pears excessive’’ even in relation to the goal of protecting

society.

The state cannot escape the obviously punitive nature

of detention under 4739 by labelling the statute ‘‘preven-

tive’? and ‘‘regulatory,’’ since ‘‘even a clear legislative

classification of a statute as ‘non-penal’ would not alter the

87a

Appendix C

fundamental nature of a plainly penal statute.’’ Trop v.

Dulles, supra, 356 U.S. at 95. If incarceration under the

statute were based exclusively on a founded suspicion that

the juvenile had committed crimes, no one would doubt that

this constituted punishment. To hold that it is not ‘‘punish-

ment’’ when based on a vague suspicion that the juvenile

may commit future crimes would render the applicability

of the due process clause in invefse proportion to the arbi-

trariness of governmental decision-making. The absurdity

of such a result is perhaps what inspired Chief Justice

Warren to insist that a deprivation did not cease to be

punitive because its professed goals were preventive:

It would be archaic to limit the definition of ‘‘punish-

ment’’ to ‘‘retribution.’? Punishment serves several

purposes: retributive, rehabilitative, deterrent—and

preventive. One of the reasons society imprisons those

convicted of crimes is to keep them from inflicting

future harm, but that does not make imprisonment any

the l

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