Brief for the Respondent in Opposition — Murray v. Owens

(pre ͤ -

Sup.

—

In THE EC 2 1972

1

5

. MICHREL RODAK, Ag. ci TRR

Rosert Murray,

Petitioner,

—against—

Cuesten D. Owens, Superintendent of Elmira Reception

Center, Elmira, New York, Louis J. Lerxowrrz, Attor-

ney General of the State of New York; and Wayne

Mucc1, Director of Institutions and Facilities, Special

Services for Children, for the City of New York,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF RESPONDENT MUCCI

IN OPPOSITION

Norman ReEpLIcH,

Corporation Counsel of the City

of New York,

Attorney for Respondent Mucci,

Municipal Building,

New York, New York 10007. Pad

Srantey Bucussaum,

ALFRED WEINSTEIN,

November 30, 1972 a

Opinion Below

Questions Presented 1

Statement 2

Pousr I

Since the denial of a jury trial in juvenile cases is

justified substantially, if not wholly, upon charac-

teristics of the juvenile court system other than

the distinctive quality of its dispositions, it is not

a denial of due process or of equal protection that

a juvenile is committed to a correctional facility in

which older persons are confined only after a crimi-

nal court proceeding in which a jury trial is avail-

able 5

Porr II

In the context of their prior commission of violent

acts, the greater physical and mental maturity of

older juveniles furnishes a valid basis for the wider

discretion with respect to their commitment 15

ConcLusion 17

Crrarroxs

Cases:

Addison, Matter of, 20 AD 2d 90 10

Baldwin v. New York, 399 U.S. 66 5

Bloom v. IIlinois, 39 U.S. 194

Duncan v. Louisiana, 391 U.S. 145

F. Robert, Matter of, 30 AD 2d 933

Gault, In Re, 387 U.S. 1

Kent v. United States, 383 U.S. 541

5, 6,8

8,12

McKeiver v. Pennsylvania, 403 U.S. 528-5, 6-10, 12

P. Raoul, Matter of, 27 AD 2d 522

Williams v. IIlinois, 399 U.S. 235

Winship, In Re, 397 U.S. 358

Statutes:

N. Y. Correction Law:

Sec. 2

Sec. 23

N. Y. Criminal Procedure Law:

Sec. 400.10

Sec. 400.20

Sec. 400.30

Sec. 400.40

Sec. 720.15

See. 720.20

—

—

—

Sec. 720.25

10

16

5, 6

1

E S E e S

N. T. Family Court Act:

See. 712 10

Sec. 713 10

Sec. 714 10

See. 731 10

Sec. 746 10, 13, 14

Sec. 751 10

See. 758 i

Sec. 758(a) 15

Sec. 758(b) -

N. Y. Penal Law:

Sec. 60.10 12

Sec. 70.00 11

Sec. 75.00 11

Sec. 75.10 11

Sec. 120.15 il

See. 140.20 11

Sec. 160.15 2,11

Sec. 265.05 il

Regulations:

7 NYCRR:

Sec. 100.1 4

See. 100.75 4

Sec. 150.1

Iy THE

Supreme Court of the United States

Octoses Tram, 1972

No. 72-5664

—

Rosert Murray,

Petitioner,

—against—

Cuester D. Owens, Superintendent of Elmira Reception

Center, Elmira, New York, Louis J. Lerxowrrz, Attor-

ney General of the State of New York; and Wayne

Mvoco1, Director of Institutions and Facilities, Special

Services for Children, for the City of New York,

Respondents.

ON PETITION YOR A WRIT OF CERTIORARI TO THE UNITED STATES

OOURT OF APPEALS FOR THE SHOOND mou

>

BRIEF OF RESPONDENT MUCCI

IN OPPOSITION

Opinion Below

The opinion of the Court of Appeals is now reported at

465 F. 2d 289.

Questions Presented

1. Does either the guaranty of due process or that of

equal protection require trial by jury in a juvenile delin-

quency proceeding as a condition of a disposition commit-

ting the juvenile to a correctional facility at which older

persons may be confined only as a result of criminal court

proceedings in which they have a right to trial by jury?

2. Where acts of aggravated violence are involved, is it

a denial of equal protection to afford greater discretion

with respect to the commitment of 15-year-olds than with

respect to that of younger delinquents?

Statement of the Case

(a)

The petition to the District Court shows that the Family

Court of New York, on April 1, 1971, adjudicated petitioner

a delinquent and committed him to the Elmira Reception

Center for a term not to exceed three years.” He was then

fifteen years old, and he had been found to have committed

acts which if committed by an adult would constitute rob-

bery in the first degree, rape in the first degree, burglary,

possession of a dangerous weapon, and menacing. The find.

ings were made by the Court, petitioner’s motion for a jury

trial having been denied,

Under New York Family Court Act §758(b) a person

who is fifteen years old at the time of his commission of

an act which, if committed by an adult, would constitute

a Class A or Class B felony may be committed to Elmira

Reception Center for a term not to exceed three years.

Robbery in the first degree is a Class B felony (New York

Penal Law, § 160.15).

On appeal to the Appellate Division of the New York

Supreme Court, that Court modified to the extent of dis-

® The allegations of the petition to the District Court in this

regard should be read together with the copy of the order of com-

mitment attached to the answer of respondent Mucci.

missing the rape charge for lack of corroborative evidence;

and it otherwise affirmed. Petitioner appealed to the New

York Court of Appeals, which dismissed the appeal on the

ground that it did not lie as of right; and that Court later

denied his motion for leave to appeal.

Petitioner did not seek review by this Court. He sought

declaratory and inju>ctive relief in the United States Dis-

trict Court. That Court denied relief on the ground that it

was barred by the judgment in the delinquency proceeding,

its opinion suggesting that habeas corpus might be appro-

priate.

(b)

There followed the instant proceeding. Its gravamen is

set forth in the petition to the District Court as follows:

“7, Petitioner contends that Family Court Act

§758(b) as applied denied him equal protection of

the law by authorizing his three year commitment

without a jury trial to Elmira reception center, a state

correctional facility, inasmuch as all other youths

similarly confined by the state’s criminal courts are

entitled to trial by jury. Alternatively, petitioner con-

tends that F. C. A. §758(b) violates due process on its

face in that it permits the Family Court to try him

civilly, as a child, but to punish him by imprisonment

in an adult correctional facility.”

It is not alleged that the Family Court disposition is

inappropriate to petitioner’s capacities, character, past

history, and other circumstances; and the facts of such

matters are not in this record. Nor is there complaint

of the rehabilitative treatment petitioner may expect to

receive. The complaint is solely that he will be confined

in the same correctional facility to which an older person

may be confined only after a jury trial.

(e)

The Reception Center at Elmira is a “medium security”

facility for males aged 16 to 20 inclusive at the time of

imposition of sentence. 7 NYCRR 100.75, 150.1. A recep-

tion center is used for “reception, classification and pro-

gram planning for purposes of confinement, treatment and

transfer.” New York Correction Law § 2.

The Commissioner of Correction has power to transfer

inmates from one correctional facility to another (id., § 23).

Correctional facilities for males, other than centers for

reception or temporary detention, are: places of maxi-

mum or medium security, differing according to the age

ranges of the persons confined therein, ranging from 16

upwards; and places of minimum security, for those be-

tween 16 and 24, inclusive. 7 NYCRR 100.1 et seq.

Chronological age is not necessarily controlling, since

placement may be made according to maturity level or

may be determined according to whether the facility offers

a special program that can be of substantial benefit to the

health, care or rehabilitation of the inmate. Persons 15

years old who are received pursuant to Family Court com-

mitment may be received or confined in places designated

for those aged 16. 7 NYCRR 150.1.

Pennsylvania, 403 U.S. 528 (1971), has held to the contrary.

In the following cases the severity of the authorized dis-

position was deemed of major relevance to the determina-

tion of the Court: Duncan v. Louisiana, 391 U.S. 145

(1968), at 159-161, Bloom v. Illinois, 391 U.S. 194 (1968),

and Baldwin v. New York, 399 U.S. 66 (1970), holding that

jury trials were mandated by the federal Constitution in

the state proceedings involved; In Re Gault, 387 U.S. 1

(1968), at pp. 13, 27, 29, 34, 36-37, 41, 44, 49.50, 57, 61, 72,

holding that even in juvenile court proceedings the Con-

stitution mandates adequate written notice and protections

with regard to aid of counsel, confrontation, cross examina-

tion, and self-incrimination; Jn Re Winship, 397 U.S. 358

(1970), at pp. 363-364, 365-366, 367, 368, 372, 373-374, hold-

ing that proof beyond a reasonable doubt is required in a

juvenile court proceeding on a charge of commission of an

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

It was observed in Gault that due process standards,

adequately administered, would not compel the States to

displace any of the benefits of the juvenile process (387

US. at p. 21). A similar remark was made in Winship

(397 U.S. at pp. 366-367) ; and it was noted in that portion

of the opinion in McK eiver which discussed the effect of the

Court’s earlier holdings in juvenile court cases (403 U.S. at

p. 534).

Against this background, it is significant that McK ewer,

which held that the Due Process Clause did not assure the

by an appellate court of the State involved as a “maximum

security prison for adjudged delinquents and youthful

criminal offenders”. It had also been argued by counsel,

as the Court also noted (ibid.), that the juvenile court

7

Among the grounds, here relevant, of the holding in

McK eiver were: the possibility that the requirement of a

jury trial as a matter of constitutional precept would

transform the proceeding into a fully adversary process

and effectively end the idealistic prospect of an intimate,

informal, protective proceeding (p. 545) ; the consideration

that the requirement would not greatly strengthen the

fact-finding function but would detract from the juvenile

court’s assumed ability to function uniquely and that the

alternative would be regressive and would tend to place

the juvenile squarely in the routine of the criminal process

(p. 547); the high promise of the system and the need for

experimentation and exploration of different ways of deal-

ing with the young (p. 547); the traditional delay, the

formality, and the clamor of the adversary system which

would accompany the injection of the jury trial into the

juvenile court system (p. 550).

Finally, the Court, stating that the essential issue was

whether the adjudicative phase of the juvenile proceeding

was to be equated with the criminal trial, refused to do so

(p. 550).

The concurring opinion of Mr. Justice Wurre relied

court systems in regard to assumptions, motives, and

susceptibility to abuse. Noting the dissatisfaction with

dispositions after adjudication and with the record of

rehabilitative custody, the Justice stated that such short-

comings “are in no way mitigated by providing a jury at

the adjudicative stage” (p. 553).

It is clear from the face of the opinions in McKeiver

that the denial of a jury trial was sustained on grounds

8

related to the nature of the adjudicative process in the

juvenile court wholly or substantially independent of con-

siderations of custody after adjudication. That appearance

is confirmed by this Court’s failure to attribute significance

to what had been advanced in the arguments of counsel

in that case (supra, p. 6) and noted in somewhat different

form in the observation in the dissenting opinion (403 U. S.

at 560) that in 1965 over 100,000 juveniles were confined in

adult institutions.

Moreover, this Court was familiar with such facts. In

Kent v. United States, 383 U.S. 541 (1966), the Court

observed that the juvenile court statute there involved

permitted “rare exceptions” in which the delinquent could

be “jailed along with adults” (383 U.S. at p. 556). In

Gault, the Court, pointing to the gravity of the exposure

involved as a reason for affording the protections the

case was to hold essential, stated that in over half the

States juveniles could be placed in or transferred to adult

penal institutions after having been found delinquent by

a juvenile court (387 U.S. at p. 50). At an earlier stage

of the opinion it had noted a somewhat similar fact (387

U.S. at p. 20, note 26) and it had also noted the existence

of a “substantial question as to whether fact and pre-

tension, with respect to the separate [from adults] handling

and treatment of children, coincide” (387 U.S. at p. 22,

note 20).

Those remarks become more significant in the light of the

observations of the late Mr. Justice Hanan in McKeiver.

He concurred in the result on the ground that criminal

jury trials were not required of the States under the Fed-

eral Constitution. He noted, however, that he could not

see why, given the shortcomings of the juvenile court sys-

tem which the plurality opinion seemed to acknowledge,“

and “given Duncan, juveniles as well as adults would not

be constitutionally entitled to jury trials, so long as juve-

nile delinquency systems are not restructured to fit their

original purpose” (403 U.S. at p. 557).

As has been observed, the McKeiver rationale was

grounded, at least in substantial part, upon considera-

tions related to the peculiar characteristics of the adjudi-

eative process in the juvenile, as distinguished from the

criminal, court system. It did not rest upon the nature or

length of confinement distinctive to the juvenile court

system. Accordingly, in the light of McKeiver, it is not

a due process objection that the result may be a confine-

ment in the same correctional facility as a confinement

resulting from the ordinary criminal process in which

there is a right to jury trial. The justification for the

distinction with regard to jury trial lies not in the nature

of the confinement, or at least not entirely in the nature of

the confinement, but in the process which leads to it. This

conclusion regarding the significance of McKeiver is con-

firmed by the manifestations of this Court’s awareness that

in half the States juveniles might find themselves confined

with older criminals.

(b)

Since at least substantial justification for the denial of

& jury trial as against due process objections lies in the

distinctive nature of the juvenile court process other than

disposition, the same justification would seem to serve

* That opinion had cited an authoritative observation to the

effect that the distinction between the rehabilitative and the puni-

tive often disappears because of the inadequacy of facilities, per-

sonnel and dispositional alternatives (403 U.S. at p. 544).

against equal protection arguments. However, without pre-

tending that what we are about to say differs in substance

from what was expressed or implicit in McKewer, we

note the distinctions applicable to the facts of this case

when regarded from an equal protection viewpoint.

The entire proceeding which resulted in petitioner’s com-

mitment was of a type the predominant“ purpose of which

is rehabilitation. Even if the underlying facts are found

adversely to a juvenile, there is no adjudication unless

it is established that the “respondent requires supervision,

treatment, or confinement”. New York Family Court Act

6731, 751. See Matter of Addison, 20 AD 2d 90, 93 (4th

Dept., 1963). A hearing on disposition is mandatory.

Family Court Act, § 746; Matter of Raoul P., 27 AD 2d 522

(ist Dept., 1966); Matter of Robert F., 30 AD 2d 933 (4th

Dept., 1968).

All persons over 7 and under 16 at the time of the con-

duct involved are within the exclusive jurisdiction of the

javenile court (Family Court Act §§ 712, 714), regardless

of whether an adult guilty of such conduct would be sub-

(id., 6 713). The most stringent available disposition is

i who commit acts which

il

felonies. In such cases the commitment may be to Elmira

Reception Center, but no commitment may exceed three

years (id., § 758). A Class A felony carries an indeter-

minate sentence with a maximum of life imprisonment

and a minimum of 15 years. A Class B felony may carry

indeterminate imprisonment for a maximum of 25 years

(New York Penal Law § 70.00).

Petitioner’s underlying acts would have constituted:

robbery in the first degree, a Class B felony (Penal Law

$160.15) ; at least the lowest degree of burglary, a lesser

felony (Penal Law 5 140.20); possession of a dangerous

weapon, at least juvenile delinquency as matter of law

(Penal Law § 265.05); and menacing, a misdemeanor

(Penal Law § 120.15).

All criminal accusations against persons who are older

than 16 and who are entitled to a jury trial must be proc-

essed, subject to minor exceptions (New York Criminal

Procedure Law § 720.15), according to the usual course of

criminal procedure and punishment. In no event are per-

sons who are entitled to jury trials exempt as matter of

right from ordinary penalties.

Such exemptions may be granted only in the exercise

of judicial discretion. An accused person does not know

until after he has been found guilty whether he will be

treated as a “youthful offender” (Criminal Procedure

Law $720.20), in which case he is saved from an inde-

terminate sentence (id., 4 720.25), or as a “young adult”,

in which case he may be sentenced, in lieu of any other

sentence of imprisonment, to a reformatory term of un-

specified duration (Penal Law § 75.00), with a maximum

of four years (Penal Law $75.10). In any event, regard-

less of sentence, there must be a youthful offender adjudi-

12

cation (Criminal Procedure Law § 720.20) or a judgment

of conviction (Penal Law § 60.10). Dispositional hearings

are compelled in the ordinary criminal case only where

prior convictions will affect the sentence (Criminal Pro-

cedure Law, §§ 400.20, 400.40), or for the purpose of de-

termining the amount of fine, where gain from a crime is

involved (id., § 400.30). Cf. id., § 400.10.

Thus, while it may be that the older person and the

juvenile delinquent may find themselves in the same cor-

rectional facility, one as the result of a jury trial and the

other following a non-jury trial, that difference is justified

by the difference in the process which led to the confine-

ment. The latter arrived by a process which was protective

and rehabilitative and which, as McKeiver held, warranted

the denial of a jury trial in the first instance. The former

was subjected to regular criminal process.

In Kent v. United States, 383 U.S. 541 (1966), the Court

considered important, in its determination that a juvenile

delinquency proceeding could not be waived to a criminal

court without certain protections characteristic of due

process, that there was a tremendous difference of exposure

between the limited period of confinement at the extreme

of the power of the juvenile court to order and the death

sentence which the criminal court could impose (557). Here,

we start with the position that ordinarily a jury trial is

not, as a matter of due process, a requirement in the juve-

nile court, because of the distinctive nature of such a court;

and the distinction is strengthened by the consideration

that the older person, who may have been sentenced for the

same underlying act following a trial under the criminal

court-jury system, faced a maximum confinement not of

three years but of 25 years.

18

(e)

There is little warrant for the District Court’s optimism

regarding the “extremely limited disruptive effect” of its

holding (341 F. Supp., at p. 728). Though only “a very

few” may actually be committed to Elmira Reception Cen-

ter each year, it is obvious that there is a far greater num-

ber of cases in which such a commitment is possible. Under

the ruling of the District Court there could be no such com-

mitment unless a jury trial were had in place of a fact-

finding hearing. Unless it were decided in advance that

there would be no such commitment, every such case would

require a jury trial.

The District Court apparently understood this. But it

remarked that it is a “small imposition to make the au-

thorities decide” in advance whether to seek such a commit-

ment or to “settle” for something else (ibid.). This assumes

that the “authorities”, whoever they may be, are like prose-

euting attorneys, despite the Court’s recognition that a

juvenile court disposition should not be penal in its nature.

Such dispositions are normally matters for probation work-

ers to recommend to the informed discretion of the Court,

not for lawyers to press as prosecutors. Which “authori-

ties” are to control the case if lawyers and probation work-

ers disagree?

The judge cannot make that decision. It is clear that,

as the Family Court Act recognizes (§746), the court

should not be informed of matters governing disposition

until the fact-finding hearing has been completed.

Moreover, to compel the “authorities”, prior to the dis-

positional hearing, to decide upon the disposition to be

sought would tend to subvert the very purpose of separate

14

and subsequent dispositional hearings. It would tend to

motivate hasty investigations of matters relevant to dis-

position. It would deprive the authorities of the benefit of

material adduced for the first time at the dispositional

hearing. And it would create pressures to make the dis-

position justify the trouble and expense resulting from an

earlier decision not to “settle”.

It may be added that the availability of a jury trial

unless the authorities “settle” for a possible disposition

other than a commitment to Elmira Reception Center may

itself have a prejudicial effect upon the fact-finding

process. The mechanics of demand for a jury or of waiver,

or of refusal to “settle”, might well inform tke Court that

such a commitment, which may depend upon prior behavior

as well as upon the act in issue, is feared by the respondent

or deemed appropriate by the “authorities”. As we have

noted, it is the scheme of the Family Court Act (§746) that

probation service reports are not furnished to the Court

prior to the completion of a fact-finding hearing. Where

trial by jury is had, that body will know that such a com-

mitment was deemed, at least by the “authorities”, to be a

reasonable prospect.

Also, as the Court of Appeals here noted, the juvenile

court proceeding contemplates disposition of the issues

“promptly and without all the time-consuming procedures

which accompany trial by jury. Furthermore, where re-

habilitation is doubtful, jury trials will not speed its attain-

ment” (465 F. 2d, at p. 292).

15

POINT II

In the context of their prior commission of violent

acts, the greater physical and mental maturity of older

juveniles furnishes a valid basis for the wider discretion

with respect to their commitment.

(a)

The statute confers upon the Family Court discretion to

make commitments of fifteen year old juvenile delinquents

which are not different from.. that of commitments of

younger delinquents [Family Court Act §758(a)]. It could

have committed petitioner to a state training school. Ac-

cordingly, the real complaint in regard to the statutory

distinction between fifteen year old delinquents and younger

ones is that the Family Court has no discretion to commit

the latter to Elmifa but does have such discretion with re-

gard to those aged fifteen.

)

The acts which constitute Class A and Class B felonies

are crimes, or attempts to commit crimes, which largely

involve aggravated use of force or violence. Other things

being equal, the older the juvenile is, the greater is his

mental and physical development and the greater is his

capacity to commit such crimes. Where the juvenile has

already done such acts, it is clearly imperative to consider

the possibility that he may do them again when he is

brought into association with younger juveniles who,

physically weaker and of less mature mental development,

are the more vulnerable. Their safety requires no less.

Moreover, the security measures necessary to maintain

the confinement of such older juveniles may well be greater

16

than is necessary in the situation of younger ones. This is

an additional reason for differentiating confinement condi-

tions based upon differences in age.

That is not to say that the separation of the older from

younger juveniles is necessarily required. But the fore-

going considerations point up the necessity for giving a

judge the latitude to do so, all that is involved here.

Even the District Court opinion, upon which petitioner

would rely in other respecis, recognizes that it is “indeed,

rational for the New York Legislature to make provision

for keeping the very bad, older youngsters from corrupt-

ing the younger chil ” 341 F.Supp., at p. 725.

The claim that a wider discretion is conferred with

respect to the commitment of delinquents aged 15 is un-

accompanied by any showing of what in practical terms are

the disadvantages to such 15-year-olds. It bears repetition

that a commitment to Elmira is discretionary and there is

no claim that such a commitment is intrinsically in-

appropriate to the circumstances of the petitioner.

It was observed in Williams v. Illinois, 399 U.S. 235

(1970), that (p. 243) :

“Sentencing judges are vested with wide discretion

in the exceedingly difficult task of determining the

appropriate punishment in the countless variety of

situations that appear. The Constitution permits

qualitative differences in meting out punishment and

there is no requirement that two persons convicted of

the same offense receive identical sentences. Thus it

was that in Williams v. New York, 337 U.S. 241, 247

(1949), we said: ‘The belief no longer prevails that

every offense in a like legal category calls for an

17

identical punishment without regard to the past life

and habits of a particular offender.’ ”

That observation is not less applicable here because we

are dealing with dispositions aimed primarily at rehabilita-

tion rather than at punishment. The “past life and habits

of a particular offender” are at least as material to

rehabilitation as they are to punishment.

CONCLUSION

The petition for a writ of certiorari should be denied.

November 30, 1972

Respectfully submitted,

Norman RRDLAoR,

Corporation Counsel of the

City of New York,

Attorney for Respondent Mucci.

Srantey Bucuspavm,

Arn WEINSTEIN,

JoszpH I. Laven,

of Counsel.