Brief Amicus Curiae — In Re GAULT

|

— -| SEP 23 1966

JOHN F. DAVIS, CLERK

o : In THE . :

Seis Court of the United States

OctoseR Term, 1966.

ie _.

No. 116

In the Matter of the Application

‘Pauu L. Gaur ‘and Mangontz Gavzz, father and mother.

_ of Greratp Francis Gauut, a Minor,

Appellants.

ON APPEAL FROM THE SUPREME COURT OF. THE STATE OF ARIZONA

| : Se.

Hes 2

"BRIEF FOR LEGAL AID SOCIETY AND 4£ITIZENS?

COMMITTEE FOR CHILDREN OF NEW YORK, INC.,

AMICI CURIAE

Epwarp Q. Camp, Jz, .

CuarLEs ScHINITSKY, :

Nanette Demsrrz,

‘Attorneys for Amici Curiae

Legal Aid Society ,

100 Centre Street

New York, N. Y. 10013

INDEX

PAGE

Interest of Amici | | vert

Points to Be Presented by Amici

%

Statement of the Case

- Summary of Argument

ARGUMENT:

The determination of dslinigneney and the: ‘commit-

ment to a State. institution, as well as the pertinent

provisions of the J uvenile Code of Arizona, are

- invalid under the due process and equal protection

guarantees of the Fourteenth Amendment to the

United States Constitution

I. The constitutional requirements for a juvenile

delinquency proceeding must be determined

in part on the basis‘ of its, similarities toa

criminal prosecution

: Similarities to Criminal Prosecution . ictal

II. The right to the assignment of counsel and

10

_ other rights essential for fairness and equal

justice must be accorded i in delinquency pro-

ceedings.

1. The Right to Counsel s

2. The Privilege Against Self-Incrimination

14°

18

-- 4, Right to Appeal

f

3. The Right to Notice of the Allegationgand -

of the Grounds: of the Delinquency De- °

termination )

III. The constitutional right to a ‘hearing must be

. Comcrysion

recognized in a juvenile disposition, whether |

or not it is required in criminal sentencing ...

. The Arizona provisions as to conduct endan-

gering morals or health is excessively broad |

and vague, and the adjudication of delin-

' quency. thereunder violated the due =

? guarantee

-TasBLE oF AUTHORITIES

-Arizona-State Dept. of Public ‘Welfare v. Barlow, 80

_.* Ariz. 249, 296 P. 2d 298 (1956)

. Armstrong, v. Manzo, 380 U. S. 545

Ashton v. nee, 384 U: 8. 195 ...

Baxstrom v.: het: 383 U.S. 107 |

Bookcase, Ine. v. Broderick, 18 N. Y. 247 1 (1966) -

_ Brady v. Maryland, 373 U.S. 83

- Burstyn v. Wilson, 343 U.S. 495

Butler v. Michigan, 352 U.S. 380

Carnley v. Cochran, 369 U. 8. 506 ......:- |

PAGE _

o * 1

ji ) Po PAGE -

_ Caruso v. Superior Court, 100 Ariz, 167, 412 P. 24 463 |

/ (1966) ~ newton bine:

Case'v. N ebraska, 381 U. S. 336 ... issued , 3

_ Cole v. Arkansas, 333 U. S. 196 .. maid we 21:

Commonwealth v. Myers, 397 Pa. 596, 156 Atl. 2d 804. -

(1959) 2... | +e og.

Douglas v. California, 372 U. S. 353 ‘“ oe: 15

Edwards v. U. 8., 330 F.2d 849 (C. A. D. C,, 1961) ... 20: ©

. Ex parte Cummings, 71 U. S.'(4 Wall.) Tt iim

Ex parte Rixen, 19 N. W. 2d 863 (N. Dak. 1945) ......:. 25

Giaceo v, Pennsylvania, 382 U. S. 399 : 9,12

Gideon v,‘Wainwright, 372 U. 8. 335 seapineD, 14 9

Gerchman v. Maroney, 355 F. 2d 302 (C. A; 3, 1966) wee 2, 25

Harling v. U. S., 295 F. 2d 161 (C. A; D. C., 1961)... 20

Hirabayashi v. U. S., 320 U. S. 81 | 21

Howard y. Smyth, C. A. 4, Aug. 9, 1966, 35. U. S. Law

* Week 2095 ; , wesenveereserce - 12

In re Barkus, 168°Neb. 257, 95 N. W. 2d 674 (1959). 15°

In re Contreras, 109 Cal. App. 2d 787, 241\P. 2d 631 .

"

.

(1952). ie . 15.

In re Lewis, 11 N. J. 217, 94 A. 2d 328 (1957) so.” 11

In re Polak, 7 A. D. 2d 214 (1st Dept., 1959) 0 =,

In re Post, 280 App. Div. 268 (N. Y. Sup: Ct. App. Div.

8rd Dept., 1952) ....: : I tO ee

In re Rich, 216 Atl. 2d 266 (Vt. 1965) 26 -

Jordan v. DeGeorge, 341 U. S, 223 ) 9 \

iv *

csp

PAGE |

-

* Bab. ‘ 383 U. ee ssageemeeee 0, 21, 24, 26

Kesseler. v. Kesseler, 10 N. . 2d 445. (1962) 0-00. 27

' Kingsley acee Inc. v. Brows, 354 U. oe ee

' Manigo v. N. ¥: LG, Viialies Afthority, dee. Aug. 9.

1966, N. Y. Sup. Ct., N. x. a Spain S. Law Week a

2097 7 ®t.

Matters of Gregory W. and Gerald S., dss. J ay 14,

1966, App. Div. (N. Y, Sup. Ct. 2d Dept. ), N. pe

for July 15, 1966, p. 8, col. 8 20

Miller v. Blalock, 356 F. 2d 273°(C. A. 4, 1966) ‘aieniades ae

Miranda v. Arizona, 384 U. S. 436 . B.

Panama Refining Co. v. Ryan, 393 U. S. 388 ——

Pate v. Robinson, 383 U. 8. 375 ...... “23

People v. LaVallee, 20 A. D. 2d 8 (App. Div. ard sat ii

People v. Monahan, 17 N. Y. 2d 310 (1966) . : 14

_ People v. Munoz, 9 N. Y=2d 51 (1961) ‘ 10

. People ex rel. Rogers v. need 17 N. Y. 2d 256

(1966) : , 14

Petersen v. Dunbar, 355 F. 2d 800 (C.. A 9, 1966) in a

Plymouth Sedan v. Pennsylvania, 380 U. S. 698 ........ od, ul

_ Binaldi v. Yeager, 384 U. S,'305 utes 10,

Ruiz v. Delgado, 359 F. 2d 718 (C."A. 1, 1966) ........... 1, 23 |

Shioutakon v. ‘District of Cn 2 236 F. 2d 666

(C. A. D. C., 1956) ........ 15

Shuttlesworth v. Birmingham, 382.U. S. 87 ...:.......-: 15

State v. Guerrero, 120 P. 2d 798 (Ariz. 1942) ................ - 12

Strong v.. Kennedy, 29° Misc. ad 54 (N. Y.. cia Ct.,

N. Y. City, 1961) | : ie

Ullman. v. U. S., 350 U. S, 422...

19

_~UL®. v. Cardiff, 344 U.S, 174 28.

3 U.S. v. Jones, 360 F. 2d 92 (C. A. 2, 1966) 21

|v U.S. v. Nugent, 346 U.S. 1 secectene Oly

U.S. v. , Register, 360 F. 2d 689 (0. A. 4, 1966) 25:

- Village of Laurel Hollow v. habits Originals, 17, N. .

2d 900 (1966) eeey “9

Vitarelli vy. Seaton, ‘359 U. S. 535 25 «

Williams v. New York, 387 U. S, 241 - 25

_, Willner v. Committee on Character, 373 U. 8.°96 o...... 24

- Wong Yang Sung v. McGrath, 339 U.S. 33 .. 17

. Yellin vy. U. S:,.874 U. S. 109 . 25

_ °. Constitutional Provision: | :

United States Constitution: Sis

sec saan Amendment ..: ‘as 9

Statutes: \ 7

_ Arizona Revised Statutes (1956) : Eos, 6

<5 Section 12-2101-k-2 | 22 |

Section 13-371. 11, 16

Section. 13-377 ..._, , 11, 15

Sections 13-1711 to 1713 ..’ 22

Annotated Missouri Statutes (Vernon’ 8 1962) : ial

Section a11211 23

at

” oa

a

vi

PAGE

Miscellaneous: ea

: ‘Arizona Juvenile Code ; te

_ Section 8-201-6 ae oe | 4,5, 97°

Section 8-231 +.............. eae ae

Section 8-238 saaleeidee Ss 49

Section. 8-314 . : : | to 3

Other Authorities:

| Adolescents and the Courts, ( arr by Citizens’ Com- ri

‘New York Family Court Act, ton of 1962, c. 686

(McKinney’s Consolidated Laws of N ew York, Book -

. '29A):

Sections 241-243

Section 711 .

_ Sections. 736, 737

“S Section 741 apenas

_ Sections 743, 744; 745, 746 :

- Section 752 oe

Section 758

4

©.¢4 —_ . .

bo ft BD BO -bO BO BO PO

Section 1012

. mittee for Children of N. Y.; Inc., 1963) : 13

Allen, The Borderland of the Criminal Law: Problems

. of “Socializing” Criminal Justice, 32. Social Service

Review (1958) 107, 117\.... ae due ae

‘Dembitz, Ferment and Experiment i in New York: Ju-

. -venile Cases in the New Family Court, 48 Cornell -

_ Law Quart. (1963) 0; Sig 18, 7

Handler, The Juvenile Court and the ‘Adversary Sys-

sem, 8 1965 Wisconsin Law. Rev. 7, 44 - “93

, "PAGE

““ > 3

Isaacs, The Role of the ahh ‘in Sips eciillier

.. Minors in the N ew Family Court, 12 Buffalo Law.

| Rev. (1963) pena Nie MOCT | BUCS ;

; Laner, New Directions for Court Treatment for Youth,

12 Buffalo Law Rev. ( 1963) 452, 462-466 ow... _

N.Y. J oint Legislative Commission on Court’ Reor- an

‘ganization, Report II (The Family Court Act) 1962 ..

Note, Juvenile Delinquents, 79 Harv. L, Rev. ‘( 1966) |

775,784 0. 2H

Schinitsky, The Role of the oy So in the Children’s -

Court, 17 Record of Bar Ass’n of City’ of New York

(1962) 10, 15

: _Wyzanski, A Trial Judge’s Froadom and Heaps

"bility, 65 Harv. Law Rev. (1952) 1281, 1291 wnat

ee Supreme Court of the United States

. OcToBER Term, 1966 °

‘ 4 .

No. 116 — ee

ae —>—

In the Matter of the Application

Pavt L. Gaur and Mazsonm Gaur, father and’ mother

. Of GeraLp Francis. Gavut, a Minor,

Appellants.

a . f : F ‘ 7 a

ON APPEAL FROM THE-SUPREME COURT OF THE STATE OF ARIZONA —

—

BRIEF FOR LEGAL AID SOCIETY AND. CITIZENS’

| COMMITTEE FOR CHILDREN OF NEW YORK, INC.

| AMICI CURIAE | |

9

: Interest of Amici* | |

Amicus Legal Aid Society has supplied legal representa- .

tion in all juvenile: proceedings in New York City for the |

past four years to all children. whose parents or guardians

are financially unable to furnish them with an attorney.

In the year ending June 30, 1965, 8,800 of the 11,001 children

appearing in New York City in juvenile delinquency and

* The consents of both -parties to the“submission of this brief,

are on file in the office of the Clerk of this Court..

2

similar proceedings were.represented by attorneys on the

staff of amicts.’ 4 et =

- Assignment of, attorneys as “law guardians” in juvenile’

‘proceedings was mandated by the New York Family Court

Act, effective September 1, 1962.2 The Faniily Court Act,

with the stated purpose of providing “a due process of

aw” for juvenile cases (section 711), established a code of |

procedure which also includes. provisions respecting de-:

tention before‘and during the proceedings (Art. 7, part 2);:

_. notice of the allegations (secs. 736, 737); notification to

the child-of his privilege to remain silent (sec. 741) ; exclu-

sion of incompetent evidence in the fact-finding hearing

(see. 744); the judge’s statement of grounds for a finding

of delinquency (sec. 752) ; a hearing’ as to disposition (secs.

743; 745, 746); and the right to appeal (sec. 1012).

While New York has thus provided for protection in a

number of the areas in which appellants experienced 4

deprivation of due process, amici are concerned with the

1 Legal ‘Aid attorneys appear for children in all proceedings in

-the Juvenile Term in New York City of the Family Court of the

_ State of New York. The Juvenile Term has exclusive jurisdiction

_ over cases of neglect, delinquency, and children denominated “per-

- sons in-need of supervision,” who would under the Arizona statute

here in issue and the laws of most states be included in the. “de-

linquent” category. The figures in the text above are for delin-

quency and persons-in-need-of-supervision cases. -

‘2 Laws of 1962, c. 686 (McKinney’s Consolidated Laws. of New

York, Book 29A), secs. 241-243, 741. The Act was adopted fol-

lowing extensive hearings conducted by a :legislative committee

throughout the State. See N. Y. Joint Legis]. Comm. on: Court —

Reorganization, Report II (The Family Court Act) 1962. Amicus

_ Citizens’ Committee, a voluntary organization established in 1945

for the betterment of services for children, was a vigorous pro-

ponent of the Act.. .

See Isaacs, The Role of the Lawyer in Representing Minors In

the New Family Court, 12 Buffalo Law Rev. (1963) 501. .

3.

establishment of. the requirements of fair procedure as a

matter of constitutional right. Avoiding repetition of ap-

pellants’ arguments, amici will discuss some of: the ‘due .

process questions before this Court. on the basis of .the

experience of the Legal Aid attorneys’ in juvenile cases.

Points to Be Presented by ‘Amici

I. The constitutional requirements for a juvenile de-

linquency proceeding must be determined in part.on the

basis of its similarities to a criminal prosecution.

II. The right to the assignment’ of counsel and other

rights essential for fairness and equal justice must be

accorded in delinquency proceedings. :

Il. A constitutional right to a hearing must be recog-

_ nized in a juvenile disposition, whether or not it is re-

quired in criminal sentencing. ~~ ‘ :

IV. The Arizona provision as td conduct endangering:

morals or health violates, the due process guarantee be-

cause of its excessive breadth and vagueness.

‘Statement of the Case. -

The facts, detailed in dppellants’ brief, will only be sum-

marized here. . |

Appellants’ fifteen-year-old son, Gerald, was taken into.

custody and detained because he was suspected of partici-

pating with another boy in a “lewd” telephone call, of ©

which a woman in their neighborhood complained. On a ©

petition by a probation officer; alleging on information and

4

belief aaliie the pina: conclusion that Gerald was a

“delinquent minor”. (R. 80), a superior court judge, sitting

as a juvenile court judge pursuant to the Juvenile Code of

Arizona, conducted a hearing. No transcript was kept, but

the testimony in the instant habeas’ corpus proceeding .

shows that the complainant, the recipient of the telephone .

call, was not present at the hearing. The testimony ‘as to

Gerald’s admissions at the hearing was conflicting, the

- favorabl- version being that he stated he only dialed the

telephone aumber for the call; under the adverse version—

that of the juvenile court judge—Gerald admitted ——s

" some of the lewd remarks, but not “the more serious” ones

‘(R. 59). , ;

The juvenile court judge: held ‘that Gerald was a “de-

linquent child” within the meaning of the J uvenile Code

of Arizona and committed him*to. the State Industrial

School “for the period of his minority unless sooner dis-

‘charged by due’ process of law” (R. 82).

The Supreme Court of Arizona, denying the instant peti-

tion for a writ of habeas corpus to secure Gerald’s release,

assumed throughout most of its opinion that the juvenile

court’s delinquency determination and its authority to com:

mit him to the State Industrial School was based on Sec. °

tion 8-201-6(a) of the Arizona J uvenile Code (see opinion

of Supreme Court at R. 83-85, 93-95). The lower court

judge who held a hearing in the habeas corpus proceeding

made the same assumption (see rulings of Superior ‘Court

judge, R. 63,'73). That section of the. Juvenile Code pro-

. vides that‘a child who violates a state law is a “delinquent

child”. The Supreme Court, however, also mentions the

testimony of the juvenile court. judge that he had held

Gerald delinquent under oe the violation-of-law provi-

5

sion and under the provision that a “delinquent” includes

“a child who habitually so deports himself as to injure or

endanger the morals or health of himself -or others” (sec.

8-201-6(d)). (See judge’s nce R. 62; Supreme Court

= R. 95.) |

’ Summary of Argument

+ ca

A proceeding against a juvenile based on his alleged .

violation of law or other alleged misconduct i is sO similar

in substance and. import to a criminal prosecution that the

fundamental safeguards of justice afforded to adults

charged with crime must be observed: For, with a juvenile

delinquency adjudication the child is subject to restraint

and confinement in State institutions, and also to a stigma

and handicap similar in its long range effects to those

from a criminal conviction.

The rehabilitative purpose of a jovidi confinement ‘is

ineffective to-distinguish a- delinquency proceeding from

@ criminal prosecution either factually or for constitu-

tional purposes. The vital point in determining the safe-

guards required for the individual’s protection against a

misuse of State power, is whether he is subject to a re-

straint of liberty. And under this Court’s decisions the

availability of a constitutional protection is not tied to a

Tigid distinction between’ crimirial and civil forms of ac-

tion, but depends on the reasonableness of the discrimina-

tion’ as to the ania! safeguard.

= tion of the juvenile court that all of the other rights the

. 6

: I |

| ‘- In view of the grave potentials of a iiainahan pro- |

| ceeding and the significant role: for counsel, the principle

of Gideon v. Wainwright, 372 U. S. 335, applies; the con-

stitutional guarantees of due process and equal protection

require an offer to assign counsel i in delinquency proceed-

ings whenever the child and his parents, are unable to em-—

ploy’ counsel.

The right to counsel i is the assurance in the daily. opera-

_ child has, whether constitutional or statutory, will be re-

alized. Even under the skeletal Arizona statute, appel- -

lants and their son had rights which they were unqualified :

to assert without an attorney. Nor did Gerald’s admission

of some involvement in the charged incident gainsay the

“need for counsel’s basic functions, of promoting an accu-

rate determination of the facts through his’ examining and —

cross-examining witnesses ; presenting legal issues as to

the elements of a violation of law; and aiding the child

and his parents when the judge considered the crucial 3 issue

of the need to commit him.

2. The privilege against self-incrimination, which should

be deemed applicable in delinquency proceedings because

of their essentially criminal character, has the’ same gen-

eral values and effect in juvenile as in adult proceedings.

3. Due process requires formal notice and precise alle- -

gations as to the child’s delinquency, primarily to afford

the child and his parents adequate opportunity to.make .

a defense, and secondarily to focus and clarify: - -dndge’

evaluation of the evidence.

a

ra 2

-

In the instant case the lack of clear and definite allega-

tions, coupled with the judge’s failure to state his findings

or the grounds for the delinquency adjudication, resulted

in uncertainty as to its basis which inflicted a further

deprivation of due process of law. Tindtck

4, Arizona’s failure to provide. for an appeal in juvenile

delinquency cases, and thus for a corrective for mistakes,

unfairness and inequality in the administration of the law,

is @ violation of the due process and equal protection guar- -

antees, particularly since an appeal is available jn crim-

inal and civil ‘proceedings of similar or less gravity. Ha- -

beas corpus is inadequate to protect even the limited rights

accorded the juvenile under the Arizona statute. 4

Even absent the right to appeal, Arizona must, as a

matter of due process, make some provision for recording.

the evidence at juvenile delinquency hearings. Under the ore

Present Arizona record-keeping system, a child and his

parents are deprived of the opportunity adequately to

present even a due process challenge to a delinqueney

determination: - ee

| a

Appellants and their son had a constitutional right -to

a hearing as to the need for his commitment: a right to

try to refute or explain whatever adverse facts the judge

was considering, and to urge countervailing facts and rea- .

Sons against his commitment. Due process: guarantees a

‘ hearing, to avert arbitrariness or false surmises in the ~

crucial determination of whether to remove: a. child from

his parents and confine him in a State institution.

Whether or not @ hearing is required in’ the imposition

_ Of a criminal sentence, it is a constitutional requisite in a

"a>

\-

\

« ie

_ juvenile disposition.’ ‘In delinquency proceedings considera- |

tion of the social factors.cannot be held a matter of grace,

~ since their primacy furnishes the justification for the denial -

_of the safeguards accorded in criminal prosecutiens. Fur-

“ther, only by a hearing requirement as @ protection against

arbitrariness can the juvenile court judge’s relatively un-

limited discretion as to commitment be saved from uncon-

stitutionality. Finally, the disposition of a child in a. ju-

\ venile proceeding affects ‘a greater complex of rights than’ ~

\ the criminal sentencizig of an adult, for it involves not only

\the liberty of the child but the interests of the parents. in

the child one their right to his custody. _.

Iv.

The Arizona provision as to conduct endangering morals

or health, violates the due process. guarantée because it

grants the judge broad and uncontrolled authority to im- °

pose +e subjective standards and personal values.

The determination of elinquen¢y and the commit- |

ment to a State institution, as well as the pertinent pro- -

visions of the Juvenile Code of Arizona, are invalid °

under the due process and \equ protection guarantees

_ of the Fourteenth Amendment to the United States Con-

. stitution. © o Le St ae

L The constitutional requirements for a juvenile delinquency

proceeding must be determined in part on the basis of

fits similarities to a criminal p osecution.

~ Under the Arizona statute, as in most of the Stats,

. the same procedure is used in all juvenile proceedings, ;

whether. arising from the child’s condition of “neglect” or

“dependency” because of a failure in parental care, or

from the child’s. acts of “delinquency”.** The latter pro-

ceedings, grounded on the child’s alleged misconduct, must, .

| ‘We urge, as a constitutional matter. be differentiated from

_ the other actions involving the intervention.of State power

*' in the child’s life and in the parent-child relationship.

The basic similarity of delinquency. proceedings, though °

‘in form civil, to a erimipal prosecution requires that the.

State accord the child the fundamental safeguards of jus-

tice afforded to-adults charged with crime. For, the avail-

ability of a constitutional protection does not depend on

& rigid distinction between ¢riminal and civil forms of —

action, but on- an appraisal of essentials,‘ and of whether

iu e

_ *In New York and. a number of other States, juvenile proceed-

. gs no longer cover the “dependent” category. mae

*See Plymouth Sedan v.:Pennsylvania, 380 U. S. 693; Grageio v. —

. Pennsylvania, 382 U. §. 399; Jordan v. DeGeorge, 341 U. S. 223,

. 281; compare Kingsley Books Inc. v. Brown, 354 UJ. 8. 436, 441-443;

(i908 of Laurel Hollow v. Laverne Originals, 17 N. Y. 2d 900 .

e > . . : "

. &e .

~ °° Gnd EK Gea «

- , 10 : os ea”

. e \ .

there is a reasonable ground for the State’s differentiation’ _

' with respect to the particular safeguard.’

_ To the question stirred in Kent. v. United States, 383

U. S. 541, 551, of whether a juvenile charged with a viola-

_ tion of law must’te accorded. the same protections “ac-

corded. to adults suspected of -criminal offenses,” the an-

- swer in some respects must be affirmative.

Similarities to Criminal Prosecution 7 per.

The most obvious similarity between a juvenile delin-

quency proceeding and a criminal prosecution is that -the

individual, like Gerald: Gault in the instant case, is subject

to confinement in a State institution om the basis of a

‘determination -that hé has violated the law. Though the

same hearing procedure is used for all juvenile cases, cus-

tomarily it.is only the delinquent child, as differentiated

from the neglected or dependent, ‘who are restrained and

GU eh 3

- The major benefit to the child from consideration of his

alleged violation of law in juvenile rather than criminal

proceedings, arises, as indicated in Kent, from the fact

that the judge has a unitary power of disposition in all

delinquency cases—to order commitment for an indeter-

° Rinaldi v. Yeager, 384 U. S. 305; Bazstrom v. Herold, 383

U. 8, 107, 111-112. A differentiation: between minors and adults

‘must be reasonable. People v. Munoz, 9 N. Y. 2d 51, 60-61 (1961) ;

Bookcase, Inc. v. Broderick, 18.N. Y. 2d 71, 73 (1966) ; see Butler

v. Michigan, 352 U. 8. 380, 383. . ' 1

* While section 8-231 of the Arizona Juvenile Code gives the

judge the power to commit any child within juvenile court juris-

diction to the -State Industrial School,—whether dependent, .

neglected, or delinquent—section 8-314 provides that “the indus.

- trial school shall be maintained for the detention, education, em-

ployment and reformation of male juvenile offenders. . . .

. ™ .

' .

‘ : n 9 t e.

. ” : . . a . as

?

minate term until the child’s majority." Thus under Ari-

zona law and the law of most states, the juvenile is free

from the penalty provisions of the State’s. criminal law:

in particular, from mandatory minimum periods of in-

caréeration, fines, hard labor, or capital punishment. Since,

however, the judge’s commitment authority is the same

no matter how trivial the child’s violation of law, the other ..

side of this coin is that he may be confined for & much

longer period than an adult committing the same. acts.

An adult could have been jailed for the Violation here in

issue for only two months, rather than for six years,.which .

was the remainder of Gerald’s minority.*® :

a .

. To say that the law violation in a juvenile case merely

establishes the court’s authority over: the child; that a

juvenile commitment is based on the child’s needs rather

' than the violation; and that its purpose is to rehabilitate

‘him,—these analyses are. ineffective to distinguish a juve-

nile from a criminal case. Certainly rehabilitation may

‘figure in a criminal court judge’s choice of sentence; and

conversely the other purposes-of incarceration of a crim-

inal—protection of the community through his ‘isolation,

and deterrence of law violation—undoubtedly play a role

in juvenile commitments along with rehabilitation (e.g.,

_ See opinion of court below, R. 96, as to commitment as a

"New York is atypical in that the statute prescribes a maximum

ning commitment of three years. N. Y. Family Court Act, sec-

tion 758. oe i

_* Arizona Revised Statutes (1956) sec. 18-877 provides for a fine

of five to fifty dollars and not more than two months in the county

: Jail for certain uses of vulgar and obscene language ; section 13-371

(4) provides for a fine not exceeding $200 or imprisonment not

exceeding two months for use of obscene epithets.

_' See Plymouth Sedan v. Pennsylvania, 380 U. 8. at p. 701, coin-

‘paxing the penalties in. the civil -and criminal proceedings there

- Involved.

ree ; 12°:

94 Atl. 2d 328, 332, 1953). |

In any event, the requirements for fairness in a delin-—

quency proceeding cannot be determined by the motiva-

tions for juvenile commitments, or by estimates of whether ~

. the institutions for juvenile confinement from time to time

and locality to locality keep the promise of individualized’ _

rehabilitative treatnient. The vital point in determining

the safeguards required for the individual’s protection

against a misuse of State power, is whether he is subject .

to a restraint of liberty.’ And a juvenile delinquency pro-

ceeding can subject the child to removal from -his home

and community, restraint within the metes and bounds. of

an institution, and subjection to its discipline. |

means of protecting society, and In re Lewis, 11 N. J. 217,

Not only in its direct and immediate but in its long-range

impact, is a delinquency proceeding similar to a criminal -

prosecution. For Arizona like other States provides only

limited protection against the stigma and handicap im- -

planted by a delinquency proceeding.” Throughout the

country an especially poignant damage is that young peo- -

ple seeking employment are questioned about years-past

juvenile adjudications; there is scant or no assurance “

* .*See Giaccto v. Pennsylvania, 382 U. S. 399, 402; compare

Gerchman v. Maroney, 355 F. 2d 302, 309-310 (C. A. 3, 1966);.

' Petersen v. Dunbar, 355 F. 2d 800, 802 (C. A. 9, 1966); Howard

v. Smyth, C. A. 4, Aug. 9, 1966, 35 U. 8S. Law Week 2095.

10'See Arizona Juvenile Code, secs, 8-228(A), 228(B), 238.

See State v. Guerrero, 120 Pac. 2d 798, 801 (Ariz. 1942), as

‘to impeaching use of juvenile commitment in criminal pro-

ceeding. Juvenile adjudications are customarily giveri weight in

criminal sentencing. A survey of a number of juvenile courts

. Showed that reports of adjudications for serious violations of law

are sent to the Federal Bureau of Investigation. See Note, Juve-

- nile Delinquents, 79 Harv. L. Rev. (1966) 775,784. ?

a ae here Ee ie

against such investigations in contiection with both public

- and private employment. Indeed, a delinquéncy adjudica- .

tion—or even -an appearance on a delinqueney charge— se

may dog an individual for’thé rest of his life in his at-

tempts to’ secure employment and other opportunities."

. Finally, the State has in both delinquency’ and criminal —

proceedings a cimilar interest in fair‘and accurate deter-

minations. For on this determination depends the ‘selec-

tion.of the children requiring removal from ‘the community

and an. allocation of space and care from the State’s lim-.

ited rehabilitative resources, and also, when a serious vio-

lation of law is involved, ‘a cessation of the State’s effort to

apprehend the violator. , eo

olga . = “Oe Ie oe 7

' In sum, the instant juvenile delinquency proceeding is

so similgr to a criminal prosecution in substance and jm-.

_ pact, that the essential safeguards for fairness and: ac-°

curacy there constitutionally required should be held ap-

plicable here. | my :

?

°

?

| See Strong v. Kennedy, 29 Misc. 2d 54 (N. Y. Sup. Ct., N. Y. -

City, 1961), where an applicant for the job of patrolman in the |

New York City Police Department had been autoinaticalfy rejected

because of a delinquency adjudication gt the age 13, fifteen

years prior to his application. The Armed. Services’ generally re-

quire as a condition of enlistment that the applieaft consent to in- .

quiry of the court as to his juvenile record. , generally, Lauer,

. New Directions for Court Treatment for Youth, 12 Buffalo Law

: Rev.-(1963) 452, 462-466; ef. Adolescents and the Courts (publ.

- by Citizens’ Committee for Children of N. Y., Ine., prepared ‘by -

Leah Marks, 1963), p. 25. i Ra cesta

_ #? As to the effects of a delinquency proceeding aver and beyond

those of a criminal prosecution, in that parental rights are involved, °

see infra Point IV. ; ge ATES,

er eee,

IL The right to the assignment of counsel and other rights

essential for fairness and equal justice must be accorded

. in delinquency proceedings.

: “L.. The Right to Counsel

“* Under the decision of the court below, the child and

his ‘parents—if unable to afford counsel—have no right

to assignment of counsel in a delinquency proceeding; it

is even ‘questionable whether they have a ‘right to appear

. by retained counsel or to receive notification of this right.

(B..9808):; = 8 8 ee me 7 |

-, 48 much or more than in the criminal courts, effectua-

_ tion. of the right to counsel in juvenile proceedings ineans

the right to have counsel assigned.** In view of the grave

potentials of a delinquency -proceeding (supra, pp. 10-13)

. and-the significant role for counsel (described below), we

believe that the Gideon principle applies and that due

process and equal protection require an offer to assign

counsel in delinquency proceedings whenever the child and

his parents are unable to employ an attorney."*

Appellants’ need for counsel is illustrative of-the dis-

advantages suffered by unrepresented children and par--

18 See supra, p.1, as to the percentage of juveniles represented by

amicus’ attorneys because of lack of means. Prior to’ assignment of

counsel, rat ‘of the children appearing in juvenile cases were un-

represented in New York City. Schinitsky, The Role of the Lawyer

in the Childzen’s.Court, 17 ‘Record of Bar Ass’n of City of New

_ York (1962) 10, 15.

“See Gideon v. Wainwright; 372 U. 8. 385; compare People

" - e@ rels Rogers v. Stanley, 17 N. Y. 2d 256 (1966) as to the right

_ . of a mental patient to assigned counsel on a habeas corpus petition

for his release from commitment for mental-illness; for assignment

in proceedings that are civil. merely in form, see People v. Monahan, .

17 N. Y. 2d 310 (1966) ; People v. LaVallee, 20 A. D. 24 8,9 (App. °

Div. 8rd Dept., N. Y. Sup. Ct.1966).* ; Rte

- = °

S

e . > : on :

; 1.

ents in delinquency proceedings. Even under the skeletal

Arizona statute, they have rights which go for naught un-

less they are represented by counsel. Clearly, appellants

‘were striving to establish Gerald’s total or partial inno-

cence and to avoid his commitment. But they were either

unaware of, or if aware, felt themselves unable to assert,

. the procedural rights which might have aided their effort

‘ and which, according to the court below, they could have

exercised at the juvenile court hearing (see R. 92, 95).

_ Farther, under the Arizona act-—and all juvenile court

legislation—the judge has authority to adjudicate the child

a delinquent and to commit him only if he appears to be

within. one of ‘the statutory ‘categories of delinquency..

Without counsel, Gerald and his parents were ignorant

even of this requirement and unable to question whether

it was Satisfied."* The juvenile court judge himself sug-

gested, at the habeas corpus hearing, that the alleged’ lewd |

phone call may not have constituted an illegality (R. 61).””

** For example, though the court below asserts that appellants

had the right to call witnesses and while Mrs. Gault wanted to con-

front the complainant, she did. not press for the latter’s appearance. ~

= 65-66, 8). As to Mr. Gault’s frustration at the hearing, see R.

‘Compare, as to. the role of counsel, Douglas v. California, 372

U. S. 358, 358 ; Shioutakon v. District of Columbia, 236 F. 2d 666,

669. (C. A. D. CG. 1956) ; In re Barkus, 168 Neb. 257, 95 N. W. 2d

674, 677 ( 1959) ; In re Contreras, 109 Cal. App. 2d 787, 241 P. 24

' 631, 633 (1952). ; oe

**Due process requires that ‘the determination be supported by -

at least some evidence. See Shuttlesworth v. Birmingham, 382 U. S.

87, 94-95; and cases there cited. See Caruso v: Superior Court, 100

Ariz. 167, 412 P. 2a 463, 466-467 (1966), granting a writ of prohi-

_ bition because there was “no evidence” to support a determination

that a child was “dependent” and the juvenile court therefore had

no jurisdiction to “alter the custody or care” of the child.

*' The judge expressed doubt as to the applicability of section

13-377 of the Arizona Revised Statutes (1956), which punishes

certain uses of “vulgar, abusive or obscene language”. The only

2

In addition, a crucial issue of mixed law and fact was pre-

sented: as to whether Gerald’s individual participation in

the incident. was sufficient to establish a violation of law.

The instant delinquency case is typical-of many in that

it was based on a petty alleged violation of law by several

children and in that the child at bar admitted only a minor *

degree .of involvement.”

‘Even when it is clear that some violation of law has

been committed by the subject child and that the juvenile

court therefore has authority over him, an accurate deter-

mination of the facts’ continues to be significant. While

thé judges have unitary authority as to disposition in all

_ delinquency cases, they undoubtedly take into account the

. gravity of the violation, and of any past violations, in de-

termining the need :to commit the child.** Then too, whether

the child’s acts amount, let us say, to “grand theft” (see:

R. 4), or on the other hand assault, or merely disorderly

conduct, colors the stigma he suffers. |

other provision mentioned as possibly relevant, A. R. S. sec. 13-

371(4), seems clearly inapplicable. . a ;

. Even from a social welfare standpoint it seems illogical and un-

sound to base delinquency jurisdiction on the criminal law unless

all elements of a violation of law are established. The criterion of ©

anti-sociality for a child, acting with the spontaneity of youth,

certainly should be no more severe than for an adult.

18 See R. 4-5 for another illustration of alleged joint juvenile in- :

volvement, though on a graver charge, in the report that Gerald |

had been “in the company of” a boy charged ‘with theft.

> See Allen, The Borderland of the Criminal Law: Problems of -

“Socializing” Criminal -Justice, 32 Social Service Review (1958)

107, 117: “However advanced our techniques for determining

what an individual is, we have rot yet approached the point. at

which we may safely ignore what he hag done. What he has done

may often-be the most revealing evidence of what he is.”

2.

5 ee .

‘ Thus, counsel is needed ‘in a delinquency proceeding

like the instant one to perform his basic traditional func-

tions, to promote accurate fact-finding by examining and

cross-examining witnesses and to present issues of law. -

Farther, in amicus Legal Aid’s experience, the child’s attor--

ney participates in the disposition. phase—often consid-

erably more than an attorney at a criminal sentencing—

questioning statements in probation or psychiatric reports,

adducing additional background facts, or suggesting treat-

ment possibilities.

The right to counsel is the only assurance that all of

the other rights the child has, whether constitutional or

statutory, will be realized in the daily operation of the

juvenile court, that the ‘intended limits on the judge’s

authority and discretion will function2® The probation

- Officer, who according to the court below “may be relied

upon to protect the. infant’s interests” (R. 93), here had

@ particular disqualification as a spokesman for the child

in his effort to defend himself. Not only did the probation _

officer perform: his customary role of adviser to the judge -

_ (R.70), but under Arizona procedure he was also the inves-

tigator of the alleged violation (R. 48-52) as well as the

.. petitioner calling upon the court to find the child delinquent

(BR. 50, 80).22 zy

The illusion. respecting judges-and court officials. whose

perception and wisdom defy the need for procedural limits

and protections, must give way to acceptance of the ad-

versary method when the State imposes a grave depriva-

20 Carnley v. Cochran, 369 U.S. 506, 510.

“Compare Wong Yang Sung v. McGrath, 339 U. S. 38, 43-44 -

50.51; Ruiz v. Delgado, 359 F. 24718 (C. A. 1, 1966).

S

, 18

tion and restraint. And-from the social welfare standpoint,

the hope that a non-adversary approach to fact-finding will

‘promote rapport, trust and confidence is, we suggest, un-

realistic. Thus, the instant proceeding seeméd to result

_. in a sense of confusion, unfairness and: victimization.

s Counsel can rectify to some degree the immense inequality

of the child and his parents in their confrontation with

“State authority in a delinquéney ease. For, regardless of

the judge’s admirable purpbses, the child in fact is con- -

fronting the.dominating tee of the State; indeed, an.

incomplete awarenéss of this reality may, as it apparently

did in the instant case, heighten its oppressiveness.””

“2. The Privilege Against Self-Incrimination |

The privilege against 'self-incrimination apparently was

not mentioned to Gerald priorsto his interrogation or his

alleged admissions ;‘the. court below, without squarely de-

ciding whether the privilege has any application in juve-

nile proceedings, held that the juvenile court judge was —

not required “to advise the infant” of the privilege (R. 93).

~ Sinee the suhstance and effect of a juvenile proceeding

_-on a charge of law violation is essentially criminal (supra

Pies, = apparently were especially shocked by Gerald’s

commitment (R. 2, 7), in the context of the judge’s apparent -

' benevolence (R.66). é Pies .

_ A policy argument sometimes urged against the child’s repre-

sentation is that his:attorney may be in a conflicted and confusing

position because the child’s ultimate welfare may be served by the

» disclosure of adverse information. “But disclosure of information

which the judge eould know only if revealed by parents or child

may well be deemed consistent with the attorney’s duty as an

officer of the-court. Compare Brady v. Maryland, 373 U. S. 83, 87;

.see Dembitz, Ferment: and Experiment in New York: Juvenile

— 7 the New Family Court, 48 Cornell Law: Quart. (1963)

’

s

pp. 10-13), we believe, as appellants urge, that its civil form

should not’ work a. deprivation of the privilege, and that .

notice of its availability must be treated as one of its ele-.

‘ments in juvenile-as in other courts. If a ‘child is subjected

to questions ‘which, in his ignorance of the privilege, he —

. apparently must answer, in effect it is denied him ‘and

granted -discriminately only to the knowledgeable.

- Amicus Legal Aid’s experience. with the privilege; ac-

corded by some judges in juvenile cases in New York even

before enactment of the New York’ Family Court Act four

-years ago and routinely since then, indicates that it has

substantially the same impact and values as in adult dases. —

Despite the statutory privilege, at least-half of the children

- represented by amicus in delinquency cases admit the

charged misconduct. When it ‘is invoked, the effect is to

" activate the presumption of innocence absent proof of guilt,

_ and to cause introduction of eviden# of the alleged delin-

' quent act. The privilege tends to ‘spai® a culpable child from

_ the temptation of falsifying testimony in his defense or

- falsely casting the blame on another child * or from. un-

willingly disclosing his culpability only to find his truthful.

ness negatively rewarded, possibly by a commitment. And

‘the child who is innocent but would be an inept witness can.

be spared from the experience of testifying and possibly ~

contributing to a misjudgment. : .

Compare Ex parte Cummings, 71 U. 8. (4 Wall.) 277, 331;

Ullman v. United States, 350 U. S. 422, 430-431, 438-439.

ting the argument that the privilege interferes with the

establishment of rapport between the judge-and the child, we sug-

gest that compelled testimony does not tend to promote it, and

that rapport probably is not a feasible primary goal in the fact-

finding phase of a delinquency proceeding. |

e

oe” as

~'. authoritative pressure.

x

‘

BAL.

84 U. S. 436). Physical as well as psychological coercion

is not foreign to juvenile cases.* And from some stand-

‘ - 8. The Right to Notice of the Allegations and of the

, : Recognition of the privilege for juveniles in delinquency

proceedings is also significant to insure them against coer-

cive, out-of-court interrogation (see Miranda v. Arizona,

points the pretrial interrogation of children has particu-

larly grave implications. Because of the helplessness and

subordinate status’ of minors, police and other officials

apprehend and question them with relative casualness;* .

and by the same token they are especially vulnerable to

Grounds of the Delinquency Determination

‘The. court: below approved the procedure of at first

notifying the child and his’ parents of only a-general charge

of “a delinquency,” and-advising’ them of the alleged sup- |

porting facts “no later than the initial hearing” (R. 92).

Even if the information given appellants at the hearing

‘had been sufficiently specific—and: we submit it was not

—such informal oral advice deprived them of an adequate

opportunity to make a defense, because of the grave pos-

sibility of misinterpretation and confusion.” This metHod

% See Matters of Gregory W. and Gerald 8., dec. Jul¥ 14, 1966, “

a App. oy (N. Y: Sup. Ct.) 24 Dept., N. Y. L. J. for July 15, 1966,

.-p. 8, col. 8. : :

8 Thus, Gerald was in custody for five days and subjected to

interrogation (R. 48-49) while his case was being determined

(R. 7), though there seems to have been no justification for this

detention by either a legal or social welfare standard.

And see Harling v. United States, 295 F. 2d 161, 163 (C: A.D. C.

at ; Edwards v. United States, 330 F. 24'849, 850 (C. A. D. C.

1 , é anes

_ See appellants’ statements that they were unsure of whether .

Gerald ‘was held under a delinquency charge or as a witness against

21 in

of notification violated due process in another respect as

well, for appellants were also deprived of the clarity in

the judge’s evaluation of the evidencé that derives from

his focus on definite written charges. ; #9

Coupled with -the lack of clear’ charges-was the failure ie

of the juvenile court judge to make findings or state the,

‘grounds for - the delinquency adjudication—a procedure

which again would have promoted careful, and canalized _

» deliberation.” “In the case at'bar, the judge was himself _

'. unsure of the basis of his order (R. 61-63, 73). Further, —

when the grounds are elusive; the child and his parents ©

cannot ascertain whether there is an invalid or arbitrary

determination to be redressed, nor can a reviewing court

properly consider this issue.” PEM

* another child (R. 2, 7). See In re Post, 280 App. Div. 268 (N. Y.

- Sup. Ct,.App. Div., 3rd Dept., 1952) and In re :Polak, 7 A..D. 2d

214 (1st Dept., 1959) for similar reactions to oral notification.

* Compare Kent, 383.U: 8. at p. 561; Hirabayashi v. United

States, 320 U: 8. 81, 101-102; Panama -Refining Co. v. Ryan, 293

be 66) 388, 432; United States v. Jones, 360 F. 2d 92, .96 (C. A..2,

were, rather than might have been, his, grounds. (As to the pro.

cediral requirements for a revocation of probation, see cases cited

infra, n, 36). : . ee

*

eas

co CO

‘The court: below err@i in its opinion that the: policy’ of

hiding “youthful errors” (R. 91) ‘could justify the’ uncer-

~ “tainty and confusion in this proceeding. Moreover, some —

‘ ‘pecord of the basis for:a court proceeding -is inevitable

and indispensable; and the imprecision in Arizona practice

may well lead to an implication of greater culpability than

"the child in fact should bear. (See “Juvenile Referral Re-

. ports,” which in Arizona apparently are a permanent and 2

basic document, R. 4-5, 79).”

‘ reise 4. Right to Appeal |

- Arizona’s failure to provide for an appeal in juvenile

delinquency cases, and thus for a corrective for mistakes :

_- and inequalities in the. administration of the law, is a

violation of the due process and equal protection guaran-

tees, particularly since an appeal is available both in civil’

= and criminal proceedings.of similar or less gravity.”

- :

.. . “aeDhe court below also-approved the failure to call the ‘com-

. .- plaining witness, stating that confrontation is not required where

“there is an admission by the child (R. 93). Confrontation was

-* ‘Revertheless essential to secure an accurate and reliable determina-

tion of the extent of Gerald’s irivolvement, and to preclyde in-

fluence on the judge of the probation officer’s hearsay report. (A

"felt need for confrontation wag expressed by Gerald’s mother,

R. 65-66, 8.).

“Whe lower court further held that “clear and convincing evi-

dence . . . of the alleged delinquent act” is sufficient (R. 94).

his standard as to quantum of evidence. works, we suggest,

a

denial of equal protection of the’ laws, in that the child is entitled

to: the protection of the requirement in criminal proceedings of

‘ ‘proof beyond a reasonable doubt.

» Arizona’s broad provisions for appeals in civil cases permit,

among others, an appeal from an adjudication of or commitment

inganity or incompetence. Arizona Revised Statutes, sec. 12-

for :

ae As to criminal appeals, see Ariz. Rev. Stats., sec. 13-1711

: Habeas corpus is inadequate to protect even the lifnited ‘

- rights: accorded the juvenile under the Arizona statute

and the decision of ‘the court:below. In the first place,

habeas leaves without any remedy the child Who is sub-

" jected to the stigma of a delinquency adjudication and -to

State control short of commitment-or change of custody.

Further, neither State nor Federal habeas affords a cor-

rective for. deprivations that do not rise to the jurisdic

tional or constitutional level (see R. 15, 53); thus, for ex-~ -

- ample, while the ‘only evidence question that could be raised’ -

‘en habeas might well be a total failure of. proof (see note

“16, supra), an appellant ‘would not be so limited. ;

As the court below indicated (R. 94), provision for re-

cording ‘the evidence at juvenile delinquency hearings seems .

@ necessary corollary of the right to appeal. But in any

event we suggest that Arizona must, as a matfer of due

process, make some “such provision. For at present. in

Arizona a child and his parents are deprived of the right ‘

adequately to ‘present even the due process claim. of 4 .

. total failure of _evidence to support the delinquency ad-

- ‘judication and to establish authority for a commitment."

a

The Btate procedures must be adequate to pores : clahia wien

anteed by due process. See Pate v. Robinson, 383 U. 8S. 375, “378;

Case v. Nebraska, 881 U. S. 336: °.

The State would: not necessarily be burdened, however, with the

prorat of recording every juvenile delinquency hearing in its

See Handler, The Juvenile Court and the Adversary’

- Syatem, 1968 Wisconsia Law Rev. 7, 44; compare Annotated Mis-

- souri Statutes (Vernon’s 1962), sec. 211.211, providing an op-

| portunity for hearing and representation by counsel before a com-

mitment to training school; Ruiz Vv. Delgado, 359 F. 2d 718, 721, n.

_ 7(C. A. 1, 1966) as to the practice of granting a trial de novo on -

: appeal from the decision i in a er

r

na.

Ree

ss a

“

- IL The constitutional right to 2 hearing must he recognized

.- &S

| ee

ae The adverse views - about dppellants and. Gerald that

_ were impelling the judge towards his commitment, were not

in 2 juvenile disposition, whether or not it is required

Appellants and Gerald were deprived ‘of due process in

that they were not given a hearing on their objections to

his commitment—on the need to. remove him from his

parents and to confine him in a State institution. =~

revealed to them; they were uninformed as to what sur-

.. mises, if any, were taken into reckoning respecting Gerald’s

school adjustment, family relationships, or other ‘psy-

chological or environmental factors. A very limited social

investigation had been conducted by a. probation officer

- gome months before (R. 53) ;* if the judge received any

- yeport on it, appellants were at rio time apprised of its

contents. Est ; .

Appellants had a right to information” as to the adverse

‘facts the judge was considering in deciding whether to —

_ commit Gerald, a right to try to refute or explain them,

and a right to show countervailing facts. and reasons.

*8 The probation officer had never ‘even spoken to Gerald’s father,

- “nor had he discussed Gerald’s behavior and habits with his mother

(R: 20, 22, 32-33, 34). | . :

~ Despite the failure to accord appellants a hearing, the record

incidentally furnishes indications of close family . ties between

Gerald, his brother and.hia parents, and their care and solicitude- .

__ for him. See R. 6, 8, 9, 18-18, 22, 28-29, 31, 38, 58.

*% See Kent, 383 U. 8. at p. 563, The information. must at least

> be suffcient to permit an attempt to refute or explain adverse

. facts. Cf. Willner v. Commitice on Character, 373 U. 8. 96, 107-

108 (concurrence) ; United States v. Nugent, 346 U. he he See

‘While the New York act. gives the Juvenile Term judge discre-

tion as to the disclosure of probation or psychiatric reports, he ©

almost invariably permits the child’s attorney to read them.

_ against his commitment. Nothing less hve stand asa safe-

*-guard against misinformation, misintefpretation and ar-

' bitrariness. A hearing, for the sake of sound judgment and |

a reasonable basis for the child’s: disposition—and thus

serving the interests of the child, his parents, and the ~~

State as well—is, we urge, mandated by due process. _é

-Diseretion must not be exercised arbitrarily or on an in-

- valid ground.” And the determination of whether to com-

mit is a critical, in fact a crucial stage in a delinquency

proceeding, in which. arbitrariness or false assumptions -

cannot be risked. In Gerald’s case, for example, the judge

.._had been wavering as to the need for commitment (BR. 70), - ,

' and the showing the appellants might have made at a hear--

ing might well have been decisive against it. |

~~ Evén if a hearing is not- constitutionally required in the

-. imposition of a criminal. sentence, it- should ‘be deemed . |

requisite in a juvenile disposition. For, the reliable deter-

mination of the social background facts has greater primacy ©

in juvenile proceedings than in criminal. While these fac-

_ tors are subject to consideration in criminal sentencing as -

well as ‘the crime, the evaluation of the child, his relation-

- . * See Yellin v. United States, 374 U. 8. 109, 120-121; Vitarelli v.

_ Beaton, 359 U.S. 535. aie arts

_™* See Willams v. New York, 337 U. S. 241. Compare, as to the

right to a hearing on sentencing, Commonwealth v. Myers, 397 Pa.

596, 156 Atl. 2d 804, 807 (1959) ; on revocation of probation, United

| States v. Register, 360 F. 2d 689 (C: A. 4, 1966) and #z parte

Riwen,'19 N. W. 2d. 863 (N. Dak. 1945) ; in the issuance of other

. Orders for confinement, Miller v. Blalock, 356 F.2d 278 (C. A. 4,

1966) and Gerchman v. Maroney, 355 F. 2d 302'(C. A. 8, 1966).

- See Wyzanski, A Trial Judge’s Freedom and Responsibility, 65

Harv. Law Rev. (1952) 1281, 1291, suggesting that in spite of

Williams, a sentencing judge “should never take into account any

= .

evidence, report or other fact which is not brought to the attention

of defendant’s counsel with-opportunity to rebut it”.

_ ships, a his: edvizoameat goes to the very heart of a

juvenile proceeding. The basic justification for modifying

criminal procedure i in juvenile cases is.to permit emphasis —

on individualized treatment, on the child’s needs er

than his illegal acts. re &

Thus in juvenile, ‘proceedings. consideration of the ‘social

factors cannot be held a matter of grace, as it is‘ sometimes

Said ‘to be in criminal sentencing.’ For, unless 4 delinquency —

proceeding is designed to insure a social welfare purpose,

_ the denial of any of the safeguards accorded in criminal

- tion."* Certainly here there was not.the careful considera- -

“tion of Gerald’s.individual situation and tr tment nééds_-

' 8

prosecutions would violate due: process and equal protec. .

which | muh. justify. the failure -to accord him such safe-.

There i is a. further ‘compelling distinction between, a ju- :

venile disposition ‘and criminal sentencing, from the stand-

point of a hearing requirement. The juvenile court judge -

3 possesses relatively, unlimited discretion as to commitment

—as illustrated by his commitment of Gerald fér, in effect, ~

. an indeterminate term Of six years following a trivial of-

fense. .Only by a hearing “requirement, As a protection

against arbitrary exercise of-this broad power and an.as-

sure ice of its use for its intended: purpose of soundly in-

dividualized | treatment, can it be eared from ne P

tionality.

Finally, the disposition of a child in a Pale a

- ing involves a | greater. complex of rights than the criminal ae

*" Bee Kent, 88 U. 8. ep. 561.. Compare In re Rich, 216 At

2d 266, 269 (Vt. 1965) declaring it unconstitutional to ‘commit a

child, on es ve * juvenile pas cs toa ee institution.

.

FPG oe 2 t

sentencing of an adult: Not only the child, but aléo his.

* parents are direttly and gravely affected. We refer not

merely to the emotional impact on the parent of his child’s

» adjudication.or commitment: and to the stigma the parent

suffers,” but to the effect on the parent’s legally: cognizable

interest inthe child’s development and in retaining - his

custody.” A hearing. as to their child’s disposition—de-

sited by all parents except ‘for those submerged in hope-

lessness—is. therefore their right wader the . due process ..

guarantee.

“IV. The Arizona provision ,to conduct endangering morals

‘or health, is excessi broad and vague, and.the adjudi-

‘eation of delinquency thereunder nec the _ proc-

ess guarantee. _

The. juvenile court judge testified (R. 61), that his de-

' @ termination of Gerald’s delinquency was based in part on

the Arizona provision that a.“ ‘Delinquent child’ includes

.A child who habitually so deports himself as to injure

or sctebihinnde the morals or health of hitnself ¢ or others” (sec,

—8-901-6(d)).

.

-%

No argument is needed to show that it was a violation :

of due process to render an-adjudication against. Gerald

wholly or partly on a-fround as to which not even a sem-

blance of notice or hearing was’ : Besides the pro-

” The stigma aky have. practical consequences for the purent,

in connection, for example, with the evaluation of the family upon

- its application for public housing. Cf. Manigo v. N. Y. C. cous

Authority, dec. August 9, 1966, N. Y. Sup. Ct.,-N. Y. “at

U.S. Law Week 2097.

° See Armstrong v. Manzo, 380 U. Ss. 545; Kesseler v. ‘Eeieter; 7

10 N. Y. 2d 445 (1962) ; Arizona Stat Dots ‘of Public Welfare v.

* Barlow, 80. Ariz. 249, 296 Pac. 2d 300 '(1956) as to the.

parent nies Dembitz, Op. cit. sup . 22 at pp. 518-519.

; codtral lai this siabnitouy basis for ¥ dokacgicey |

jurisdiction on its face violates due process. “For it gives

Broad and. unchanneled power to~ the: judge to impose his

subjective, standards,‘and t toassert authority to commit a

., child on the basis of his personal values and. — ,

i interpretation of the statute.“ ad ;

| CONCLUSION | 2

It is ‘iampucttuilly: submitted that the Jialiaeniak of the

: Supreme Court of Arizona be, reversed, with directions :

‘the appellants’ application for a writ of habeas corpus be

granted and that the adjudication of. delinquency” and’ the

order ‘of commitment be invalidated.

-

| “Respecttaty: submitted,

" Epwarp Q. Cuze, Je.,

Nanette Demsirz,

- "" Attorneys for Amici,Curiae .

Legal Aid Society * _

‘100 Centre Street as

New York, N. Y. 10013. .

. <

: TK to the vagemneas of She statuincy erlteria; compere ‘Burstyn

J. 8. 495, 504; United aes i Cardi, 248 U: 8.