Juvenile Justice Articles

Challenging Change:
Legal Attacks on Juvenile Transfer Reform

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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