By Robert E. Shepherd, Jr.
Robert E. Shepherd, Jr. is a professor of law at T.C. Williams School
of Law, University of Richmond in Richmond, Virginia, and a contributing
editor to Criminal Justice magazine. He is also former chair of the
Juvenile Justice Committee of the Criminal Justice Section.
As noted previously in this column, there has been a significant trend
in the past decade to ease the traditional restrictions on trying juveniles
in adult courts. Indeed, most states have acted affirmatively in recent
years to try more youths as adults either by lowering the maximum age
of juvenile court jurisdiction, dropping the minimum age for discretionary
or mandatory transfer to criminal courts, broadening the range of offenses
dictating placement in the adult system, and giving prosecutors broader
discretion to file juvenile cases directly in the adult criminal court.
(See Robert E. Shepherd, Jr., Juvenile Justice, 10(2) Crim. Just. 39
(Summer, 1995).) Since 1992, all but 10 jurisdictions have greatly eased
the ability of the state to try juveniles as adults. (Patricia Torbet,
Richard Gable, Hunter Hurst IV, Imogene Montgomery, Linda Szymanski
& Douglas Thomas, State Responses to Serious and Violent Juveniles (1996);
Linda Szymanski, State Variations in Age Restrictions for Trying Juveniles
in Criminal Court (1997).)
As these more punitive approaches have spread, there have been several
constitutional attacks on the new legislative schemes in an effort to
preserve the primacy of the traditional juvenile transfer process based
on the exercise of individualized discretion by juvenile and family
court judges. Lawyers have challenged these new strategies by asserting
the unconstitutionality of the reform on several grounds--that the change
violates the separation of powers doctrine, that it results in the denial
of equal protection of the law to juveniles in general or to a particular
class of juveniles, and that the new approach amounts to a denial of
due process. Practically all of these challenges have been unsuccessful,
but the efforts persist because of the profound impact that adult treatment
may have on juveniles.
Separation of powers argument
One argument raised against the new transfer procedures, especially
those that provide for extensive exercise of prosecutorial discretion,
is that they violate the principle of separation of powers, under either
the United States or state constitutions. The basic contention is that
the legislature, by delegating to a prosecutor, a representative of
the executive branch, powers that are inherently and exclusively judicial
in nature, has violated the separation of powers doctrine, especially
against the backdrop of the traditional grant of authority to the judge
of the juvenile or family court to exercise discretion regarding the
jurisdiction over a juvenile offender. The courts, however, have universally
rejected this contention, reasoning that since the creation of juvenile
jurisdiction in the first instance is a legislative function, the legislature
can modify and restrict juvenile or family court jurisdiction in any
way it sees fit, especially where there is no specific basis for special
juvenile treatment articulated in the state constitution. (State v.
Jose C., 1996 Conn. Super. LEXIS 754, pp. 29 31 (Conn. Superior Court,
New Haven, March 21, 1996); People v. J.S., 103 Ill.2d 395, 469 N.E.2d
1090 (1984); Matter of Wood, 236 Mont. 118, 768 P.2d 1370 (1989); Hansen
v. State, 904 P.2d 811 (Wyo. 1995).) Although amenability or nonamenability
for juvenile handling may have been a judicial function over the years,
it is not inherently so, and the legislature can reallocate the role
to a prosecutor without offending the separation of powers doctrine.
(Jones v. State, 654 P.2d 1080 (Okla. Crim. 1982).) A Minnesota court
also found that the prosecutor's exercise of discretion was necessarily
limited by a judicial body, the grand jury, and thus there was no violation
of the doctrine. (State v. Behl, 547 N.W.2d 382 (Minn. App. 1996).)
However, an attack based on the separation of powers doctrine might
be more successful if the juvenile or family court is expressly mentioned
in the state constitution, together with some philosophical statement
concerning the scope of its authority, or with some delineation of jurisdictional
responsibility over juveniles of a particular age or a specified category
of juvenile cases.
Equal protection of the laws
Equal protection claims have been comparably unsuccessful, although
two state supreme courts have struck down transfer statutes on such
a basis. In Hughes v. State, 653 A.2d 241 (Del. 1994), the Delaware
Supreme Court invalidated a revision of the juvenile transfer statute
that eliminated a "reverse amenability process" in the adult court for
juveniles automatically transferred to the court because the amendment
eliminated judicial review for some juveniles prosecuted as adults,
while it did not do so for other classes of juveniles. The court found
this distinction was "patently arbitrary and [bore] no rational relationship
to a legitimate government interest." (Ibid at 252.) Likewise, the Utah
Supreme Court concluded in State v. Mohi, 901 P.2d 991 (Utah 1995),
that a statute that gave prosecutors unguided discretion over the decision
of whether to try children as adults or juveniles violated the state
constitution's "uniform operation of laws" provision, similar to, but
broader than, the Equal Protection Clause. The court noted that "choosing
which court to file charges in has significant consequences for the
offender, and the statute does not indicate what characteristics of
the offender mandate that choice. The scope for prosecutor stereotypes,
prejudices, and biases of all kinds is simply too great." (Ibid at 1003.)
The legislature could have determined that certain groups of violent
juveniles, "such as repeat offenders, those who use guns, etc.," must
be tried as adults but it cannot "create a scheme which permits the
random and unsupervised separation of all such violent juveniles into
a relatively privileged group on the one hand and a relatively burdened
group on the other." (Ibid at 1004.) These two cases stand alone at
the present time, however, in striking down legislation.
The majority of the cases uphold transfer statutes that allow for considerable
prosecutorial discretion, reasoning that such discretion is a traditional,
and widely accepted, part of the criminal justice system. For example,
in Jose C., supra, the court reasoned that since juveniles are not a
suspect class and there is no inherent or fundamental right to juvenile
treatment, the equal protection claim is measured by the "rational basis"
test, with the burden being on the challenger to establish that there
is no rational basis for a statutory distinction. That burden is a heavy
one and is not successfully borne by simply asserting that a statute
distinguishes between groups of juveniles based on the seriousness of
their conduct and provides for prosecutorial discretion in making charging
decisions. (United States v. Bland, 472 F.2d 1329 (D.C. Cir. 1972);
Woodard v. Wainwright, 556 F.2d 781 (5th Cir. 1977); People v. Thorpe,
641 P.2d 935 (Colo. 1982); State v. Berard, 121 R.I. 551, 401 A.2d 448
(1979); Hansen v. State, supra; Jahnke v. State, 692 P.2d 911 (Wyo.
1984); Bishop v. State, 265 Ga. 821, 462 S.E.2d 716 (1995).) Thus, simply
enhancing the range of discretion over the choices a prosecutor may
have in determining juvenile or adult handling does not alone establish
a denial of equal protection of the laws. This is especially true where
the charging decision is concerned.
However, the greater the breadth of prosecutorial discretion, the more
vulnerable the statutory scheme may be. Thus, a system whereby the legislature
distinguishes between classes of juveniles based on the violence of
their conduct, their past criminal history, their use of weapons in
the commission of the offense, etc., will likely be upheld even though
it provides for broad prosecutorial discretion in making charging or
jurisdictional decisions. On the other hand, giving a prosecutor unguided
discretion over all felonies, for example, may be more vulnerable. Also,
the use of gender, race, religion, or other improper characteristics
in making jurisdictional decisions clearly will create a significantly
greater vulnerability. (Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972)(allowing
females under 18 benefits of juvenile treatment while limiting such
benefits to males under 16 violates the Equal Protection Clause); Bordenkircher
v. Hayes, 434 U.S. 357 (1978); Yick Wo v. Hopkins, 118 U.S. 356 (1886)(selective
enforcement of ordinance only against Chinese businessmen unconstitutional);
United States v. Armstrong, 116 S. Ct. 1480 (1996)(selective prosecution
based on race would be unconstitutional).)
Due process claims
The third line of attack on recently enacted juvenile transfer statutes
has been based on the due process clauses of the federal or state constitutions.
These claims have also been almost universally unsuccessful, whether
predicated on noncompliance with the hearing requirements of Kent v.
United States, 383 U.S. 541 (1966), on vagueness claims based on the
language of the statute, or on abuse of prosecutorial discretion. Once
again, a major barrier to success is the threshold acknowledgment that
juvenile or family court jurisdiction is a legislative creation and
there is thus no inherent right to juvenile treatment derived from the
common law or constitutions. Courts have held that the Kent requirements
are derived from the Supreme Court's application of District of Columbia
law or are predicated on the statutorily mandated judicial hearing and
thus only articulate the minimal procedures to be followed at such a
hearing. Other courts conclude that Kent does not require a hearing
as a constitutional right, and thus prosecutorial discretion comports
with due process. (United States v. Bland, supra; Cox v. United States,
473 F.2d 334 (4th Cir. 1973); United States v. Quinones, 516 F.2d 1309
(1st Cir. 1975); Russell v. Parratt, 543 F.2d 1214 (8th Cir. 1976);
Woodard v. Wainwright, supra.) There is no constitutional right to provide
a due process hearing, only that such a hearing, when provided, must
comply with certain minimal standards.
Likewise, state statutes that mandate adult handling of juveniles based
on the charge alleged or some other permissible characteristic of the
juvenile are constitutionally valid against a Kent due process claim.
(State v. Jose C., supra; Vega v. Bell, 47 N.Y.2d 543, 419 N.Y.S.2d
454, 393 N.E.2d 450 (1979); People v. P.H., 145 Ill.2d 209, 582 N.E.2d
700 (1991); Matter of Wood, supra; State v. Berard, supra; People v.
Thorpe, supra; State v. Perique, supra.)
One possibly successful attack on the operation of a statute that gives
discretion to a prosecutor in determining whether to file in a juvenile
or adult criminal court would be the abuse of that discretion, as noted
above in the use of impermissible criteria such as race, religion, etc.,
or by refusing to utilize discretion at all. In other words, if a prosecutor
filed for adult handling in all cases, or in all cases involving drugs,
without a specified statutory instruction to do so, the prosecutor may
be violating due process by failing to exercise any discretion at all
on a case-by-case basis. In In re William M., 89 Cal. Rptr. 33, 473
P.2d 737 (Cal. 1970), the California Supreme Court overturned a judge's
detention decision because the judge failed to exercise that discretion
mandated by statute and ordered the pretrial detention of all youths
with school-based drug charges. Thus, a refusal to exercise discretion
in any meaningful fashion may constitute a denial of due process.
Constitutional challenges to the recent wave of juvenile "reforms"
sweeping the country have been largely unavailing. Since juvenile or
family courts have not existed since the period of the development of
the common law, they are the product of legislative reforms of the judicial
process during the past century. Consequently, they are reforms that
may be undone without implicating the federal or state constitutions.
Court sometimes bemoan the passage of a more "enlightened" era, but
uphold the power of the legislature to make the changes that give rise
to a more punitive system for treating juvenile offenders. In Jose C.,
supra, the court, after rejecting all of the challenges to the new Connecticut
statute opined, somewhat wistfully, that:
[T]he automatic' transfer of juveniles to adult court has a societal
cost in that the traditional resources of the juvenile justice system
are not available to the child. [footnote omitted] Jose C. has presented
evidence claiming that his special social and psychological needs will
be better met in juvenile court. By making the transfer automatic, the
legislature has chosen not to allow courts the discretion to consider
such claims. (Ibid at 35.)
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