# Amicus Curiae Brief — Breed v. Jones > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0420%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 421 U.S. 519 ## Text ae ve 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0420%3A06. Public record. Not legal advice.