Amicus Curiae Brief — Breed v. Jones

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SUPREME COURT, U. @

wa

In The P RADAR Ip

Supreme Court of the Anited States

October Term, 1974

No. 73-1995

ALLEN F. BREED,

Petitioner,

vs.

GARY STEVEN JONES,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit 3

BRIEF FOR THE NATIONAL COUNCIL ON CRIME AND

DELINQUENCY AND THE COUNCIL OF JUDGES OF THE

NATIONAL COUNCIL ON CRIME AND DELINQUENCY,

AS AMICI CURIAE

Michael S. Wald

Stanford Law School

Stanford, California 94305

David Gilman }

National Council on Crime and Delinquency

411 Hackensack Avenue

Hackensack, New Jersey 07601

Attorneys for Amici Curiae

INDEX

Page

Interest of the Amici Curiae ...............222000 0s 1

PRIOR 5 6.5 oe 6 once ee ene de eee ee deen an awe 2

I. Introduction............. 2.0.2... eee eee ee eee 2

Il. Holding transfer hearings prior to adjudicatory hear-

ings best serves the rehabilitative goals of the juvenile

POMUICE CYCUOM 65 5k ok ahs ksh bs chest sesanes 3

III. Application of the double jeopardy clause to juvenile

proceedings is necessary to protect the integrity of

the juvenile court «2... 22sec cece eee ce seccess 7

IV. Fundamental fairness to minors requires application

of the double jeopardy clause .................-. 10

V. Application of the double jeopardy clause to juvenile

proceedings will not create additional burdens on the

juvenile justice system... ... 2... 5 ccs cece eee. 1]

Conclusion ...... ooo eaeeueneun wee eseucesenequees 15

AOOORGE A: so ssar sce eivens < 55% aha tessa eons se os 17

Table of Authorities

: Cases:

Bryan v. Superior Court of the County of Los Angeles,

7 Cal.3d 575, 102 Cal.Rptr. 831, 498 P.2d 1079

CUDA). once ess ee ness ee eetseegeccse tases 6

Donald L. v. Superior Court of Los Angeles County, 7 Cal.

3d 592, 102 Cal.Rptr. 850, 498 P.2d 1098 (1972)... 12

Page

Ex Parte Lange. 85 U.S. (18 Wall) 163 (1873) .......... 11

Fain v. Duff, 364 F.Supp. 1192 €M.D. Fla. 1973), aff'd

488 F.2d 218 (Sth Cir. 1973) (en bane)... 2.2.2... )

or ve CBU, FAT UO. FE EI9G ES) 6 ose ke tec es ee nes 10

In re Winship, 397 U.S. 358 (1970) ...............08. 6

Kent v. United States, 383 U.S. 541 (1966) ............ 7

MckKeiver v. Pennsylvania, 403 U.S. 528 (1971) ...... 3, 6,15

Richard M. v. Superior Court, 4 Cal.3d 370, 93 Cal.Rptr.

Fore, We) 20 BOS CITT). occ es de een wees eens 9

State v. Halverson, 192 N.W.2d 165 (lowa 1971) ........ 13

State v. R.E.F., 251 So.2d 672 (Fla.App. 1971), aff'd 265

PE C09 Ce) cc ccan nets ye teeveynceusene es 8

United States v. Candelaria, 131 F.Supp. 797 (1955) ..... 9

Statutes:

California Welfare and Institutions Code §§ 707. 780... .11, 12

Florida Stat. Ann. §39.02(6) ... 2.2.2.2... 002... 0000. 8

Other Authonities:

Children in Custody, A Report on the Juvenile Detention

and Correctional Facility Census of 1971, U.S. De-

partment of Justice. Law Enforcement Assistance

Administration, National Criminal Justice Informa-

tion and Statistics Service... 0.2.0... 2.2 ee eee 7

Hays and Solway. The Role of Psychological Evaluation in

Certification of Juveniles for Trial as Adults, 9 Hous-

SOG 1 OV: 109 C29 ci cece ne eg een ease etn ts 13

iil

Page

Kay and Segal, The Role of the Attorney in Juvenile Court

Proceedings: A Non-Polar Approach, 61 Geo. L. Rev.

1401 (1974) .. 2... eee eee eee nnn >

Note, Problem of Age and Jurisdiction in the Juvenile

Court, 19 Vand. L. Rev. 833 (1966). ...-----+-+-- 13

Note, Twice in Jeopardy, 75 Yale L.J. 262, 266 N.13

(VOD) ca een spec od ones a name senewa sews ee ees 11

Reuterman, Hughes and Love, Juvenile Detention Facili-

ties: Summary Report of a National Survey, 9 Crim-

inology 3(1971).....---+-e sree errr rrr 7

Rosenheim, Detention Facilities and Temporary Shelteng,

in Child Caring (ed. Pappenfort, Kilpatrick, and

Roberts, 1973)......---- eee c cece cee ttrt rf

Rudstein, Double Jeopardy in Juvenile Proceedings, 15

Wm. and Mary L. Rev. 266 (1972) ....------++- 12,13

Snyder, The Impact of the Juvenile Court Hearing on the

Child, 17 Crime and Delinquency 180 (1971). .....- 7

Thompson, California Juvenile Court Deskbook, Califor-

nia Council of Trial Judges (1972) ...--------++-> 13

Model Statutes:

Model Rules for Juvenile Courts, Council of Judges of the

National Council on Crime and Delinquency, Rule 9

and Comment (1969) .....------2 22sec rctttte 3

Sheridan, Legislative Guide for Drafting Family and Juve-

nile Court Acts, U.S. Department of Health, Educa-

tion and Welfare, Publication. #472-69, §27 and

Comment (1969) ....-.---- eee reece ctr 5

Standard Juvenile Court Act §13, National Council on

Crime and Delinquency (6th ed. 1959). ......-008- 3

de a ae ba el | Bee ee PS RM EAR ITTV ERED DUE fA

POE IE SID NETHER EIS LB ALG OS PRA BYRNE: RR RE NERO CY

|

In The

Supreme Cont of the Anited States

October Term, 1974

No. 73-1995 ~

ALLEN F. BREED,

Petitioner,

vs.

GARY STEVEN JONES,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth €ircuit

\

BRIEF FOR THE NATIONAL COUNCIL ON CRIME AND

DELINQUENCY AND THE COUNCIL OF JUDGES OF THE

NATIONAL COUNCIL ON CRIME AND DELINQUENCY,

AS AMICI CURIAE

Interest of the Amici Curiae

The National Council on Crime and Delinquency is a non-

profit membership corporation, incorporated in 192] as a

national service agency. Since that time the NCCD has endeavored

to develop standards and guides for the improvement of juvenile

court work and other phases of the correctional field. It presently

has a membership of over 60,000 citizens and officials. The

representative nature of the Council is further indicated by the

make-up of its officers and Board of Trustees, which is annexed

as Appendix A for the information of the Court.

RSP ELE EET PRE oe a NRO

te

In conjunction with it~ advisory arm, the Council of Judges.

NCCD has drafted model legislation covering many aspects of

the justice system. It is the publisher of the Standard Juvenile

Court Act, now in its sixth edition. In addition to developing

model standards, NCCD provides consultation and research for

courts and other agencies. Through its activities NCCD has be-

come familiar with the functioning of the juvenile justice system’

throughout the country.

The Council of Judges represents jurists throughout the

United States. Members sit on the bench of federal, state and

municipal courts. The Council serves in an advisory capacity to

the National Council on Crime and Delinquency. Due to its

nationwide membership, the Council of Judges is aware of the

potential implications of court decisions on the operation of

the juvenile and criminal justice systems in many states.

NCCD and the Council of Judges are vitally concerned with

improving the administration of justice. They are particularly

concerned with retaining the rehabilitative goals of the juvenile

court. The case before this Court raises issues central to the

overall functioning of our juvenile justice system. The impact

will vary significantly from state to state. Since NCCD and the

Council of Judges are able to provide a broader perspective than

are the other litigants on the likely total impact of the decision,

we present this brief.

The parties have consented to the filing of an amici curiae

brief by the Council of Judges and NCCD. Copies of their letters

of consent have been forwarded to the Clerk.

ARGUMENT

I. Introduction

This brief focuses solely on the implications of this case for

the proper functioning of the juvenile justice system. The amici

curiae believe that as a matter of constitutional law the double

ss eee RO RT LE TE LILLY OIE LADLE N ILS PORT LE LBRO ot OS SOROS i PRP REE DCN ROHS, AMPS ET

PRAIRIE LTE spe LOIRE IS

3

jeopardy clause clearly applies in the instant situation, since the

proceeding arises after prosecution in an adult court. We support

the legal arguments in respondent's brief and argue for affirma-

tion of the lower court decision.

This Court has indicated that it will take into account the

likely impact extension of a specific right to minors would have

on the functioning of the juvenile court system in deciding

whether to apply specific constitutional safeguards to juvenile

court proceedings. McKeiver v. Pennsylvania, 403 U.S. 528, 547,

550 (1971). This brief discusses the reasons why affirmance of

the lower court decision is necessary in order to protect the

independence, integrity, and rehabilitative goals of juvenile

courts.

II. Holding Transfer Hearings Prior to Adjudicatory Hearings

Best Serves the Rehabilitative Goals of the Juvenile Justice

System.

The National Council on Crime and Delinquency and its ad-

yisory committee, the Council of Judges, have long supported the

proposition that once an adjudicatory hearing begins in juvenile

court the minor is in fact in jeopardy, and to transfer him to

criminal court for another trial on the facts alleged in the juve-

nile court petition would constitute a deprivation of due process

of law.’ See Model Rules for Juvenile Courts, Rule 9, and Com-

ment (Council of Judges of the National Council on Crime and

Delinquency, 1969); Standard Juvenile Court Act §13 (6th Ed.

1959) prepared by the Committee on the Standard Juvenile Court

Act of the National Council on Crime and Delinquency, in co-

operation with the National Council of Juvenile Court Judges

and the U.S. Children’s Bureau.

1. We agree with petitioner that a hearing to determine whether there

is probable cause to believe that the minor committed the offense in ques-

tion would not place the minor in jeopardy. Petitioner’s Opening Brief, p.37.

4

Petitioner is incorrect in stating that the Standard Juvenile

Act is silent on the issue of double jeopardy. Section 13 of the

Standard Juvenile Court Act is as follows:

TRANSFER TO OTHER COURTS

If the petition in the case of a child sixteen years of age

or older is based on an act which would be a felony if

committed by an adult, and if the court after full investi-

gation and a hearing deems it contrary to the best inter-

est of the child or the public to retain jurisdiction, it may

in its discretion certify him to the criminal court having.

jurisdiction of such felonies committed by adults. No

child under sixteen years of age at the time of commis-

sion of the act shall be so certified.

When a petition has been filed bringing a child before

the court under the provisions of subdivision 1 or 2 of

Section 8 of this Act and the child resides outside the

court district but in the state, the court may, in its dis-

cretion, transfer the case to the court having jurisdiction

in the district where the child resides; or in such case the

court may, after a finding on the allegations in the peti-

tion, certify the case for disposition to the court where

the child resides. Thereupon, the court receiving such

transfer shall dispose of the case as if the petition were

originally filed or the finding were originally made there.

Whenever a case is so certified, the certifying court shall

forward to the receiving court certified copies of all per-

tinent legal and social records.

When a petition has been filed a child shall not thereafter

be subject to a criminal prosecution based on the facts

giving rise to the petition, except as provided in this

section.

This Section was intended to bar later prosecutions

after an adjudicatory hearing had begun, and this is clearly

+ )

the import of the language.’

Contrary to the speculation by the petitioner, the recom-

mended standards do not just reflect cautious draftsmanship to

avoid potential double jeopardy problems. Cf. Petitioner’s Open-

ing Brief, pp. 49-50. Rather, they reflect the judgment of the

Council of Judges and the NCCD that the rehabilitative purposes

of the juvenile court system are best served by holding transfer

proceedings prior to, rather than after, adjudicatory hearings.

Holding transfer hearings after adjudicatory hearings di-

minishes the possibility of rehabilitation both by discouraging

the minor’s cooperation with the juvenile court and by delaying

the establishment of a treatment plan. It is a central goal of the

Juvenile Court system to attempt to deal with a minor informally,

without the negative aspects of the criminal justice system. Minors

are encouraged to cooperate fully by the promise that the system

is concerned solely with their best interest. In fact, counsel for a -

minor, recognizing the potential benefits to the minor of co-

operation, may well take a leading role in encouraging coopera-

tion, explaining the various rehabilitative programs to the minor

and assuring that an appropriate disposition in fact occurs. See

Kay and Segal, The Role of the Attorney in Juvenile Court Pro-

ceedings: A Non-Polar Approach, 61 Geo. L. Rev. 1401, 1409-

20 (1974).

However, if the minor and his counsel believe that the

minor may be subjected to a transfer proceeding after an ad-

judicatory hearing any cooperation will cease. The minor will

rightly view the process as potentially hostile and respond ac-

cordingly. Counsel would be derelict to suggest cooperation,

2. This position is similar to that adopted by other organizations con-

cerned with juvenile courts. For example, the Children’s Bureau of the

United States Department of Health, Education and Welfare takes the

position that the double jeopardy clause applies to juvenile court proceed-

ings. W. Sheridan, Legislative Guide for Drafting Family and Juvenile

Court Acts, U.S. Department of Health, Education and Welfare, Publica-

tion #472-69. §27 and Comment (1969).

6

since he cannot guarantee that his client will receive the benefit

of juvenile court treatment.’ Thus, adversary proceedings become

necessary in many more cases than if the transfer hearing is held

first. The goal of having speedy and informal hearings is jeopar-

dized. See In re Winship, 397 U.S. 358, 375 (1970) (concurring

opinion of Mr. Justice Harlan); McKeiver v. Pennsylvania, supra,

403 U.S. at 550. Significantly, this delay may occur even in

cases where transfer procedures are not ultimately instituted,

since counsel cannot be certain that transfer will not be requested.

Moreover, during the time that the minor is awaiting trial

he may develop a negative attitude toward the juvenile court,

thereby diminishing the prospects of effective rehabilitation. On

the other hand, if the transfer hearing is held first, the minor can

then be told that the court’s primary interest is in seeing whether

a rehabilitation plan can be developed. Counsel can confidently ,

advise the minor to cooperate with the process, recognizing that

his cooperation can only benefit, not harm, him. If the minor is

found fit, he will often admit the charges and the chances for

rehabilitation will be considerably enhanced.

Holding the transfer hearing after the adjudicatory hearing

also delays substantially the establishment of a rehabilitation |

"program for the minor in those cases where the minor is found

fit for juvenile treatment. When the adjudicatory hearing is held

first, counsel must initially prepare for the trial on the merits.

This may require four or more weeks, especially if the charges

3. In fact, counsel would generally advise total silence, since any state-

ments or admissions made by the minor might be used against him in an

adult trial. The California Supreme Court tried to minimize this problem

by ruling that statements made in juvenile court are inadmissible, Bryan v.

Superior Court of the County of Los Angeles, 7 Cal.3d 575, 586-7, 102

Cal.Rptr.831, 498 P.2d 1079 (1972), but this is not adequate protection,

since the statements can lead to other evidence which won’t be clearly

inadmissible, or which may give the prosecutor tactical oe in the

adult proceedings.

GLUES EO RIL ALE OED OLE EE Fi? MONEE ey BOA

7

are serious. If the minor is found guilty, counsel then needs addi-

tional time to prepare for the transfer hearing. Given the impor-

tance of this hearing, see Kent v. United States, 383 U.S. 541

(1966), several more weeks are usually needed.

All during this time the minor probably will be incarcerated.

Unfortunately most juvenile detention homes are basically

holding facilities without any treatment program. See Rosenheim,

Detention Facilities and Temporary Shelters in Child Caring (ed.

Pappenfort, Kilpatrick, Roberts, 1973), pp. 259-265; Children in

Custody, A Report on the Juvenile Detention and Correctional

Facility Census of 1971, U.S. Department of Justice, Law En-

forcement Assistance Administration, National Criminal Justice

Information and Statistics Service, esp. pp. 13-16; Reuterman,

Hughes & Love, Juvenile Detention Facilities: Summary Report

ational Survey, 9 Criminology 3 (1971). Many minors are

képt in jails during this period of time. It has been increasingly

recognized that early identification and treatment of the prob-

lems leading juveniles to commit crimes is essential {> successful

_ rehabilitation. See Snyder, The Impact of the Juvenile Court

Hearing on the Child, 17 Crime and Delinquency 180, 182

(1971). In addition, the uncertainty over the ultimate disposi-

tion creates anxiety in the minor and contributes to his negative

attitude towards the juvenile process. See Snyder, supra at 184.

For these reasons amici curiae believe that applying the

double jeopardy clause to bar any subsequent proceedings after

a juvenile court adjudication hearing is totally consistent with

the purposes underlying the juvenile court approach, i.e., protec-

tion and rehabilitation of the minor, and in fact, its application

will facilitate the attainment of these goals.

Ill. Application of the Double Jeopardy Clause to Juvenile

Proceedings is Necessary to Protect the Integrity of the

Juvenile Court.

In addition to facilitating the rehabilitative goals of the

juvenile justice system, application of the double jeopardy clause

AORN YE AVL MALLE LOELEEL AMOI LLEIE A OLED AAAI NE TIE EOEN IN FAO OMI IE LOE EIA

8

to juvenile court hearings is necessary in order to protect the

integrity of the juvenile court process itself. Unless double

jeopardy applies, the juvenile court process is Subject to the pos-

sibility of significant misuse by prosecuting authorities.*

The problem is most acute in states which, unlike California,

permit a prosecutor to file proceedings against a minor in adult

court even though the juvenile court has elected to retain juris-

diction. See, e.g., Florida Stat. Ann. §39.02(6). The problem is

illustrated by a recent case from Florida, R.E.F. v. State. In that

case the juvenile court held an adjudicatory hearing and decided

_ 4. It is possible that the double jeopardy clause could be applied differ-

ently depending on the context in which the case arises. Prior jeopardy may

be in issue in six different situations:

(a) The minor has been acquitted after an adjudicatory hearing in

juvenile court and is being retried in juvenile court for the same offense.

(b) The minor has been acquitted after an adjudicatory hearing in

juvenile court and is being retried in adult court for the same offense.

(c) The minor has been convicted in juvenile court, found fit, and is

awaiting disposition when adult charges are brought by a prosecutor.

(d) The minor has been convicted in juvenile court, found fit, and a

dispositional program has commenced when adult charges are brought by

a prosecutor.

(e) The minor has been convicted in juvenile court, found fit, placed

in a juvenile correction facility, and is then returned to juvenile court by

the institution as unamenable to the treatment of the institution, and the

minor is then transferred to adult court for prosecution.

(f) The minor has been convicted in juvenile court, and the juvenile

court at a transfer hearing held prior to any disposition finds the minor

unfit.

This last situation is the only one before this Court. However, amici

curiae believe that the policy considerations which dictate application of

the double jeopardy clause in situations (a) through (e) should also be con-

sidered in deciding the present case. Application of the double jeopardy

clause will aid the goals of the juvenile court in all six situations. Develop-

ing separate doctrines for each situation would be cumbersome, confusing

and unnecessary.

PEST NR RE TEN A LET ERIE ER GT REE TROT ITE LG TS EAE SVAN GENOA TENN

9

to retain jurisdiction over the minor. The minor was sent to a

juvenile treatment institution. However, the prosecuting attor-

ney then brought criminal proceedings in adult court, and the

Florida Supreme Court ruled that these proceedings were not

barred by the double jeopardy clause. State v. R.E.F., 251 So.2d

672 (Fla.App. 1971), aff'd sub nom. R.E.F. v. State, 265 So.2d

701 (1972), habeas granted, Fain v. Duff, 364 F.Supp. 1192

(M.D. Fla. 1973), aff'd 488 F.2d 218 (Sth Cir. 1973) (en banc),

petition for cert. filed 42 U.S.L.W. 3667 (U.S. June 4, 1974)

(No. 73-1768).

As Fain illustrates, unless the double jeopardy clause is

applied to prevent a criminal trial after an adjudication in juve- .

nile court, the juvenile court cannot function as an independent

body serving the rehabilitative needs of the minor. The prose-

cutor is able to undermine the juvenile court judge’s authority

to determine the appropriate dispositional action. The expertise

of the juvenile court judge in deciding whether a minor needs

and can benefit from treatment can be ignored by a prosecutor

who may be responding primarily to public pressure.* Cf.

United States v. Candelaria, 131 F.Supp. 797 (1955).

The ability of a prosecutor to file charges in adult court

substantially hinders the effective implementation of a treatment

plan. If adult charges are pending, or if there is a possibility that

adult charges will be filed, a juvenile court judge may delay send-

ing a minor to a treatment program until the adult charges are

settled. As previously discussed, such delay can greatly decrease

the potential success of the treatment program.

5. It should also be recognized that, at least theoretically, the prose-

cutor could file charges in adult court even after an acquittal in juvenile

court. Amici curiae believe that an acquittal following a full juvenile court

hearing fully protects the public, and any further proceedings would under-

mine the status of the juvenile court. Moreover, it would be manifestly un-

fair to give the state a second chance in an adult proceeding to convict a

youngster found not guilty in juvenile court. See Richard M. v. Superior

Court, 4 Cal.3d 370, 93 Cal.Rptr. 752, 482 P.2d 464 (1971).

EET aS ee EAI z TRF T ¥ $ a eae

10

The possibility of adult charges being filed may be dele-

terious even when the minor is sent to a treatment institution.

Faced with the uncertainty over his status, the minor may be

unable or unwilling to participate wholeheartedly in the treat-

ment program. We certainly cannot expect a minor in such a

situation to have the positive attitude needed for successful

treatment. In addition, the minor’s confidence in the fairness

and integrity of the entire justice system will be impaired if he

has cooperated with the juvenile court and then winds up facing

a criminal trial.

Even in states like California, where the prosecutor cannot

independently bring an adult court action, it is possible for the

district attorney to misuse the juvenile court processes. A

district attorney can press for a full jurisdictional hearing in

juvenile court in order to discover the minor’s defense and then

press the juvenile court to find the minor unfit. Although this

may not have occurred in the case before this Court, the Coun-

cil of Judges is concerned over such potential abuses. Since

application of the double jeopardy clause would prevent such

problems, it is in the interest of the juvenile justice system that

the protection be extended.

IV. Fundamental Fairness to Minors Requires Application of

the Double Jeopardy Clause.

The judges who authored the Model Rules ana the judges

and others who authored the Standard Juvenile Court Act

believe that it is essential to have minors feel that they are

treated fairly if the rehabilitative goals of the system are to be

achieved. Therefore, they strongly support extension of due

process protections to juvenile court proceedings in a manner

consistent with the goals of the juvenile court system.

Juvenile court proceedings involve the potential loss of

liberty for the minor. In re Gault, 387 U.S. 1 (1967). Preventing

double punishment for the same offense is one of the basic con-

ERPS 8 LETRA MEL INT LOE NS HET ORIG LIE SA NEY BAIR VRPT ION FIRES + SNEED ARE Oop? OVATE

1]

cerns underlying the double jeopardy clause. See Note, Twice in

Jeopardy, 75 Yale L.J. 262, 266 N.13 (1961); Ex Parte Lange,

85 U.S. (18 Wall) 163, 173 (1873). To allow juveniles to be re-

tried after a juvenile proceeding would clearly subject them to

the possibility of double punishment.®

In addition, the double jeopardy clause protects persons

from going through the hardship and trauma of two trials, re-

gardless of whether they were acquitted or convicted in the first

trial. While every effort may be made to keep juvenile proceedings

as informal and non-punitive as possible, it is still true that going

through a juvenile court proceeding is a traumatic experience for

a minor. It is the position of the Council of Judges that once a

juvenile has undergone this experience, it is contrary to his in-

terest to be forced to face another trial.

Finally, it is unfair to place a minor in a position where by

defending himself in juvenile court he may be making it easier

for a prosecutor to obtain a conviction in adult court. This will

necessarily occur if the adjudicatory hearing is held first. Espe-

cially in light of the positive reasons for holding transfer hear-

ings first, it is essential that any appearance of unfairness be

eliminated by applying the double jeopardy clause to juvenile

court proceedings.

Vv. Application of the Double Jeopardy Clause to Juvenile

Proceedings Will Not Create Additional Burdens on the

Juvenile Justice System.

From the perspective of sound judicial administration, it is

quite feasible to hold transfer hearings prior to adjudicatory

6. As previously indicated, juveniles may be subjected to double punish-

ment when a prosecutor files adult charges after the minor has been

sentenced, or given a disposition, in juvenile court. In addition, California

and several other states allow transfer to adult court for prosecution if a

juvenile institution will not keep the minor. California Welfare and Institu-

tions Code § §707, 780 (West 1972).

FDA EE TP AREER AST ee eB y Ste

12

hearings. Such a procedure is required in 15 states, see Peti-

tioner’s Opening Brief, pp. 47-8, and was recommended as the

preferable procedure by the California Supreme Court. See

Donald L. v. The Superior Court of Los Angeles County, 7 Cal.

3d 592, 102 Cal.Rptr. 850, 498 P.2d 1098 (1972).

Petitioner has suggested that if transfer hearings must be

held prior to the adjudicatory hearing, this will create a substan-

tial burden on the juvenile court. Petitioner’s Opening Brief,

pp. 38-41. However, petitioner’s arguments appear to be based

on incorrect assumptions about the manner in which juvenile

courts operate. Because these assumptions are critical to peti-

tioner’s argument, it is necessary to describe in some detail how

the process actually works in California and in most jurisdictions.

Petitioner assumes that “‘[i]f transfer is barred as a disposi-

tional alternative to probation or placement in a juvenile facility,

states such as California must adopt a preliminary hearing pro-

cedure in all juvenile court cases... .” Petitioner’s Opening

Brief, p. 38. This is simply incorrect. First of all, fitness hearings

will not have to be held in every case brought to juvenile court.

Virtually every state statute substantially limits the type of cases

in which transfer is authorized — by restricting the type of of-

fenses for which transfer is possible and/or by allowing transfer

only if the minor is over a certain age. See Rudstein, Double

Jeopardy in Juvenile Proceedings, 15 Wm. and Mary L. Rev.

266, 297-8 (1972). For example, in California only minors who

were 16 or 17 years old at the time of the offense may be trans-

ferred. California Welfare and Institutions Code § 707. Thus, one

cannot use the total number of cases heard by the juvenile court

as a basis for estimating the potential number of transfer hear-

ings. Cf. Petitioner’s Opening Brief, p. 41.

Moreover, transfer is not a realistic alternative in the over-

whelming majority of cases in which the minor is eligible for

transfer, and no special hearing is necessary to establish that fact.

Under most statutes transfer is appropriate only when the minor

13

has committed a serious offense or has an extensive history of

delinquent behavior which indicates he may be unamenable to

treatment in the juvenile system. See Rudstein, supra, 14 Wm.

and Mary L. Rev. at 299. The available evidence indicates that

only a small number of cases fall in this category.”

‘ Furthermore, the cases where transfer is likely are invari-

ably identified very early in the juvenile court process. See State

v. Halverson, 192 N.W.2d 765, 769 (lowa 1971). In California,

as in most states, the juvenile probation department begins con-

sideration of dispositional alternatives as soon as charges are filed

in juvenile court. See H. Thompson, California Juvenile Court

Deskbook, California Council of Trial Judges (1972), § 10.2,

p. 146. In most cases it is clear that the minor is amenable to

juvenile court treatment, and the possibility of a fitness hearing

is not considered. No transfer hearing is needed in these cases. If

it appears to the probation officer that fitness may be in issue,

it is the general practice throughout California to indicate this

to the juvenile court judge prior to the adjudicatory hearing.*

7. See Hays and Solway, The Role of Psychological Evaluation in

Certification of Juveniles for Trial as Adults, 9 Houston L. Rev. 709, 710

(1972) (reporting that the Houston, Texas juvenile court considered the

waiver of 18 juveniles over a six-month period. Distributed among those

18 were 21 charges: 10 of murder and assault to murder, 3 of rape, and 8

of robbery by firearms); Note, Problem of Age and Jurisdiction in the

Juvenile Court, 19 Vand. L.Rev. 833, 854 (1966) (reporting on a Nashville

study where every juvenile remanded to criminal court over a 17-month

period had appeared in juvenile court at least once before; 43 of 49 had

previously been committed).

8. Although there is no published study of the procedures generally

followed in juvenile courts in California, Professor Michael Wald, counsel

for amici curiae, has recently completed an extensive analysis of the proce-

dures in two large California counties, Alameda and Santa Clara. All of the

cases transferred from juvenile court to adult court during 1971 and 1972

in these two counties were examined. Computer printout, available at

Stanford Law School, shows that the transfer hearings were held prior to

the adjudicatory hearing in 220 of the 239 cases in which a transfer oc-

curred. See also Thompson, supra, California Juvenile Court Deskbook

§10.3, pp. 1468.

14

Only in these cases need a transfer hearing be held,® and transfer

hearings would be necessary in these cases even if the adjudica-

tory hearing were held first.'° Thus, there is no reason to expect

an increased number of hearings if transfer hearings are held first.

In fact, it is quite possible that fewer hearings will be neces-

sary. As previously discussed, if the transfer hearing is held first

and the minor is found fit, he may then admit jurisdiction, thus

obviating the need for an adjudicatory hearing. In addition, the

dispositional issues will have been discussed at the transfer hear-

ing, so only a brief dispositional hearing would be necessary. If

the minor is found to be unfit, the need for an adjudicatory

hearing would be eliminated.

It is true that in jurisdictions which have only one juvenile

court judge and where the same judge cannot conduct both a

transfer hearing and an adjudicatory hearing there may be admin-

istrative difficulties in having the transfer hearing first. However,

the use of visiting judges or the temporary elevation of a munici-

pal court judge to serve as a superior court judge — if, as in Cali-

fornia, only superior court judges can hear juvenile court cases —

should be adequate to meet the problem. Amici curiae believe

that any burdens in this regard are more than compensated for

by the likelihood of fewer contested jurisdictional hearings and

the increased prospects for rehabilitation achieved by holding

transfer hearings first.

9. Since minors who are transferred generally have extensive delinquent

histories, they will already have had social studies about them conducted.

Thus, they will have already suffered any stigmatization which such a study

would entail. A minor who does not want the study conducted can waive

his right to having the transfer hearing conducted prior to the adjudicatory

hearing.

10. This, of course, would not be true in those few cases where the

minor is found not guilty.

PEAR etna Sr are

I ieee REET PEALE LIN ONS OPP ET er Pre ects

15

CONCLUSION

In McKeiver v. Pennsylvania, supra, this Court refused to

extend the right to jury trials to juvenile court hearings. The

presence of juries, said the Court, would increase the criminal as-

pects of the juvenile hearing and thereby undermine the distinc-

tive nature of the juvenile process. Further, jury trials were not

- thought to be essential to assure a fair fact finding process. Un-

like the situation in McKeiver, there is no compelling reason to

deny juveniles the protection against being placed twice in

jeopardy. On the contrary, application of the double jeopardy

clause prevents the juvenile hearing from becoming more crimi-

nal in nature. Its application will facilitate the rehabilitative

goals and the proper functioning of the juvenile court system.

Therefore, we urge this court to affirm the judgment below.

Respectfully submitted,

Michael S. Wald

Stanford Law School

Stanford, California 94305

David Gilman

National Council on Crime and Delinquency

411 Hackensack Avenue

Hackensack, New Jersey 07601

Attorneys for Amici Cunae

CERTIFICATE OF SERVICE

I, David Gilman, Counsel for Amicus, hereby certify that on or

before January 12,1975, three (3) copies of this brief were duly

served upon attorneys for both parties by mail service postage

prepaid.

David Gilman -

National Council on Crime & Delinquency

411 Hackensack Avenue

Hackensack, New Jersey 07601

ES Nee? ees PEAT BINT 6 Bree AT RAL? Fo ere Eg poe

17

APPENDIX A

Total Membership — 95

NATIONAL COUNCIL ON CRIME AND DELINQUENCY

CONTINENTAL PLAZA

HACKENSACK, NEW JERSEY 07601

OFFICERS

Chairman of the Board

Vice Chairman of the Board

Vice Chairman, Professional Affairs

Vice Chairman, National Affairs

Vice Chairman, Citizen Affairs

Vice Chairman, International Affairs

Vice Chairman, Governmental Affairs

Treasurer

Chairman, Executive Committee

Chairman, National Executives’ Committee

President & Secretary

Exec. Vice President, Citizen Services

Exec. Vice President, Professional Services

BOARD OF DIRECTORS

Hon. David L. Bazelon

U. S. Court of Appeals

U. S. Court House

Washington, D. C. 20001

Mr. J. David Baker

Chairman of the Board

Hugh J. Baker Company

602 W. McCarty Street

Indianapolis, Indiana 46202

Mrs. Frank J. Battisti

13900 Shaker Boulevard

Cleveland, Ohio 44120

H. Ladd Plumley

Richard L. Gelb

Carl M. Loeb, Jr.

Robert Stuart

Charles B. Wilkinson

Hon. Francis L. Dale

Robert B. Clark

John W. Larsen

Hon. Arthur S. Lane

William F. May

Milton G. Rector

W. Edmund Carver

Frederick Ward, Jr.

Mr. Peter Bensinger

1040 North Lakeshore

Chicago, Illinois 60611

CIEE

18

Mrs. Curtis Bok *Hon. Francis L. Dale

330 Spruce Street United States Ambassador to

Philadelphia, Pa. 19106 the United Nations at Geneva

Department of State

Mr. John Boone ashingt

Boston University School of Law by ae leiiaiias

141 Bay State Road Mr. Leon DeKalb

Boston, Mass. 02215 39 Primrose Lane

Mr. Jon Galt Bowman Roosevelt, New York 11575

Commercial Marine Properties Mrs. Henry E. I. duPont

3201 Fairview Avenue East Box 4000

Seattle, Washington 98102 Greenville, Delaware 19807

*Mr. Franklin F. Bruder Mr. Harry E. Estell

41 Park Avenue Principal

_ New York, New York 10016 Wendell Phillips School

2621 South Michigan Avenue

Mr. Stephen A. Bruns : “a

seatithent Chicago, Illinois 60616

Social Action Department Mr. Jewett T. Flagg

Diocese of Kansas City— 35501 Blackwater Farms

St. Joseph — Route 4, Box 101

527 West 39th Street Jasper, Alabama 35501

Kansas City, Missouri 64111 Mr. Curtiss E. Frank

Hon. Winslow Christian President

California Court of Appeal _ Council for Financial Aid to

,_ 4154 State Building Education

San Francisco, Calif. 94102 680 Fifth Avenue

*Mr. Robert B. Clark New York, New York 10019

President Mr. Stanley A. Frankel

Hoffman-LaRoche, Inc. Vice President

340 Kingsland Street Ogden Corporation

Nutley, New Jersey 07110 161 East 42nd Street

Mr. Bill Cosby New York, New York 10017

Sah Enterprises, Inc. Mr. Douglas A. Fraser

1900 Avenue of the Stars Vice President _

Suite 1929 United Auto Workers of America

Century City, Calif. 90067 8000 East Jefferson Avenue

Detroit, Michigan 48214

* * Executive Committee Member

Professor Charles Fried

Law School of Harvard University

Cambridge, Mass. 02138

Ms. Joan R. Garber

3138 Bishop Street

Cincinnati, Ohio 45220

*Mr. Richard L. Gelb

Pres. & Chief Executive Officer

Bristol-Myers Company

345 Park Avenue

New York, New York 10022

Mr. John S. Greenway

1634 N. Olsen Avenue

Tucson, Arizona 85719

Mr. Joseph Griesedieck

Vice Chairman of the Board

Falstaff Brewing Corporation

5050 Oakland Avenue

St. Louis, Missouri 63166

Mrs. Ben T. Head

1512 Glenwood Avenue

Oklahoma City, Okla. 73116

Mr. Barron Hilton

President

Hilton Hotels Corporation

9990 Santa Monica Boulevard

Beverly Hills, Calif. 90212

Mr. Harold Horvitz

Attorney-at-Law

Guterman, Horvitz, Rubin,

Rudman and Katz

Three Center Plaza

Boston, Mass. 02108

Dr. David Jacobson

207 Beechwood Lane

San Antonio, Texas 78216

19

Mr. F. Bruce Johnson

Chairman

Board of Prison Terms and

Paroles

805 Capitol Center Building

401 West Fifth Avenue

Olympia, Washington 98501

Mr. Herbert C. Johnson

Chairman

Consolidated Natural Gas Company

30 Rockefeller Plaza

New York, New York 10020

Mr. Vernon E. Jordan

Executive Director

National Urban League

55 East 52nd Street

New York, New York 10022

*Hon. Orman W. Ketcham

Superior Court — District of

Columbia

Washington, D.C. 20001

*Mr. John L. Kidde

Vice President

Walter Kidde Company, Inc.

9 Brighton Road

Clifton, New Jersey 07012

Dr. Lawrence C. Kolb

Psychiatric Institute

Department of Mental Hygiene

722 West 168th Street

New York, New York 10032

*Hon. Arthur S. Lane

General Counsel

Johnson & Johnson

501 George Street

New Brunswick, N.J. 08903

EMI NOE Oe

*Mr. Sigurd S. Larmon

Chrysler Building

405 Lexington Avenue

New York, New York 10017

*Mr. John W. Larsen _

' President

The Bowery Savings Bank

110 East 42nd Street

New York, New York 10017

Mr. Peter Levathes

150 East 69th Street

New York, New York 10021

Mr. Carl M. Loeb, Jr.

501 East 87th Street

New York, New York 10028

Mr. Manuel Lopez

Executive Director

Social Action Commission

Diocese of Brownsville

318 East Van Buren

Suite 218

Harlingen, Texas 78550

*Mr. Dan W. Lufkin

Poverty Hollow Road

_ Newtown, Conn.,06470

Mr. Milton Luger

Director

New York State Executive

Department .

Division for Youth

2 University Place

Albany, New York 12203 |

Ms. Marilyn Lutton

2571 Wendover —

Bloomfield Hills, Mich. 48013

Mr. Pat Malloy

Attorney-at-Law .

813 Thurston National Building

Tulsa, Oklahoma 74103

*Mr. William A. Marquard, Jr.

President & Chief Executive

_ Officer

American Standard, Inc.

40 West 40th Street

New York, New York 10018

*Mr. William F. May

Chairman

American Can Corporation

American Lane

~ Greenwich, Conn. 06830

Mrs. James McClellan

Co-Chairman

Women’s Crusade Against Crime

1221 Locust Street ;

St. Louis, Missouri 63103

Dean Robert McKay |

New York University

School of Law

40 Washington Square South

New York, New York 10012

Dr. Karl Menninger

The Menninger Foundation

1439 South Michigan Avenue

Chicago, Illinois 60605

*Mr. Hamilton B. Mitchell

Chairman ;

Dun & Bradstreet Companies,

Ine.

299 Park Avenue

New York, New York 10007

21

*Mr. William T. Moran

Marketing Research Director

Lever Brothers Company

390 Park Avenue

New York, New York 10022

Dr. Norval Morris

Director

Center for Studies in Criminal

Justice

University of Chicago Law School

5807 South Ellis Avenue

Chicago, Illinois 60637

*Mr. Patrick V. Murphy

President

Police Foundation

1015 18th Street, N.W.

Suite 700

Washington, D.C. 20036

Mr. Joel E. Nystrom

Agridor Farm

Skillman, N. J. 08558

Mr. Martin D. Phelan

Vice President

Eastin-Phelan Corporation

1235 West Sth Street

Davenport, lowa 52808 |

*Mr. H. Ladd Plumley

Honorary Chairman of the Board

State Mutual Life Assurance

Company of America

440 Lincoln Street

Worcester, Mass. 01605

*Mr. Edmund T. Pratt, Jr.

Chairman & Chief Executive

Officer

Pfizer, Inc.

235 East 42nd Street

New York, New York 10017

Mr. E. Barrett Prettyman, jr.

Attorney-at-Law

Hogan & Hartson —

815 Connecticut Avenue

Ce D.C. 20006

al Raach

nr Taf le, Creek Drive

Tequ orida 33458 |

Professci tz Redl H

100 Porter Street

North Adams, Mass. 01247

Mr. Elmer W. Reeves

3415 Spruce Avenue

West Palm Beach, Fla. 33407

Ms. Janet Reno

Administrative Assistant

State Attorney

1351 N.W. 12th Street

Miami, Florida 33125

*Hon. Elliot L. Richardson

Woodrow Wilson Int’l. Center

for Scholars

The Smithsonian Institute

1000 Jefferson Drive, S.W.

Washington, D.C. 20560

Hon. Scovel Richardson —

Presiding Judge

_ U.S. Customs Court

1 Federal Plaza

New York, New York 10007

Ms. Gladys E. Rivera

New York Telephone Company

Supervisor — Urban Affairs

215-48 93rd Avenue

Queens Village, New York 11428

22

Mr. Francis C. Rooney, Jr.

President

Melville Shoe Corporation

3000 Westchester Avenue

Harrison, New York 10528

Mr. David Rothenberg

Executive Director

Fortune Society

29 East 22nd Street

New York, New York 10010

*Mrs. H. M. Rozendaal

2128 Rosendale Road

Schenectady, New York 12309

Mr. Henry T. Rutledge

Chairman

Northwest Bancorporation

7200 Northwestern Bank Bldg.

Minneapolis, Minnesota 55480

Mr. Robert D. Sack

Attorney-at-Law

Patterson, Belknap & Webb

30 Rockefeller Plaza

New York, New York 10020

Mr. Philip B. Schnering

Hillside Road

Stevenson, Maryland 21153

*Mr. William Schoen

Research and Planning Associate

Public Relations Department

Ford Motor Company

The American Road

Dearborn, Michigan 48121

Col. SaLees Seddon

Treasurer

Board of Police Commissioners

315 South 12th Street

St. Louis, Missouri 63103

*Mr. Russell Service

Deputy County Executive

Executive Building

1 West Street.

Mineola, New York 11501

*Hon. Caroline K. Simon

Counsel to Surrey, Karasik,

Greene and Seham

500 Fifth Avenue

New York, New York 10036

Mrs. William Y. Smith

3620 Ridgeway Terrace

Falls Church, Virginia 22044

Mrs. Hobart A. Spalding

1408 31st Street, N.W.

Washington, D.C. 20007

Mr. Arthur H. Spiegel

Spiegel and Stenson

P.O. Box 1042

Albuquerque, N. M. 87103

*Mrs. Potter Stewart

5136 Palisade Lane, N.W.

Washington, D.C. 20016

Mr. John L. Stickley

Chairman of the Board

John L. Stickley and Company

1615 East Boulevard

Charlotte, N. C. 28203

Mr. W. Ciement Stone

Honorary Chairman

Combined Insurance Company of

America

5050 Broadway .

Chicago, Illinois 60640

*Mr. Robert Stuart Mr. John A. Wallace

Chairman of the Board 450 Forest Avenue

National Can Corporation Apt. A 307

5959 South Cicero Avenue Norristown, Pa. 19401

Chicago, Illinois 60638 Mr. Hunter P. Wharton

Mr. Alfred K. Suga President

Vice President for Operations International Union of Operating

- Pacific Concrete and Rock Co., Engineers

Ltd. 1125 17th Street, N.W.

2344 Pahounui Drive Washington, D.C. 20036

Honolulu, Hawaii 96819 Mrs. Christine T. Whitman .

Thomas S. Szasz, M.D. Coordinator for Public Relations

Professor of Psychiatry Association of Junior Leagues,

Upstate Medical Center Inc.

State University Hospital 825 Third Avenue.

750 East Adams Street New York, New York 10022

Syracuse, New York 13210

*Mrs. Arthur G. Whyte, Jr.

Mr. T. M. Thompson Hillside Road

Chairman of the Board Greenwich, Conn. 06830

General American Transportation *Mr. Charles B. Wilkinson

120 Stank Riverside Plaza Bud Wilkinson Associates

Chicago, Illinois 60680 ee

Mr. Maynard P. Venema Suite 820

Chairman of the Executive Oklahoma City, Okla. 73112

Committee e

Universal Oil Products Company oe ore = Counsel

10 UOP Plaza 736 Bowen Building

Des Plaines, Illinois 60016 Washington, D.C. 20005

Mr. C. William Verity, Jr.

Chairman

Armco Steel Corporation

703 Curtis Street

Middletown, Ohio 45042

Mr. John M. Walker, Jr.

Assistant U. S. Attorney

U. S. Attorney’s Office :

Southern District of New York

New York, New York 10007

np . SRL LPL RINE a ore oe ET TE PED aes