Appeal from a judgment of the United States District Court for the Southern District of New York (Carter, Judge), declaring New York Family Court Act § 739(a) (ii) unconstitutional.
Oakes, Newman and Winter, Circuit Judges. Newman, Circuit Judge, concurring.
This appeal involves a constitutional challenge to a provision of the New York Family Court Act*fn1 authorizing preventive detention of accused juvenile delinquents. It was brought in the District Court as a habeas corpus class action against the defendant Paul Strasburg, Commissioner of the New York City Department of Juvenile Justice, under 28 U.S.C. § 2254, Robert Abrams, Attorney General of the State of New York, intervening as a defendant. Judge Carter certified the class as "all juveniles who are now being held or will be held before these proceedings are concluded, in pretrial detention . . .," under the challenged statute. A trial resulted in a record of documentary and testimonial evidence about the actual practice of the Family Court in utilizing preventive detention, including expert testimony by a Family Court Judge, statistical studies and a collection of representative case studies.
Judge Carter held the statute unconstitutional. 513 F. Supp. 691 (S.D.N.Y. 1981). He issued a judgment granting the writ to all juveniles detained under the challenged provisions at any time before conclusion of this action. Defendants appealed. We affirm on the grounds that the statutory scheme and practice under it violate the Due Process Clause of the Fourteenth Amendment in that the period of pre-trial detention is utilized principally to impose punishment before adjudication of the alleged criminal acts.
THE STATUTORY SCHEME SUMMARIZED
Since our decision rests on a belief that the Family Court Act does not accord procedural due process, it is important to understand the procedural structure of New York delinquency adjudications. Although these juvenile proceedings are somewhat different from adult criminal proceedings in both ends and means, their major procedural stages have analogues in the adult criminal justice process. A juvenile proceeding is initiated by a petition for delinquency,*fn2 a step analogous to an indictment. The case then goes to fact-finding before a Family Court Judge, at which time the juvenile is either adjudicated a delinquent or the petition is dismissed.*fn3 The analogue in the criminal law is, of course, the trial and verdict. The final stage is a determination of the disposition by a Family Court Judge,*fn4 analogous in the criminal law to adult sentencing. We set out these analogues, not to argue that the constitutional limitations on juvenile courts are identical to those imposed on adult criminal tribunals, but solely to facilitate an understanding of the result we reach.
The statutory scheme can be summarized as follows. The challenged provision is Section 739(a) (ii). It authorizes detention of a juvenile after filing of a petition, but before fact-finding, when a Family Court Judge determines "there is a serious risk that [the juvenile] may before the return date do an act which if committed by an adult would constitute a crime." Juveniles detained under 739(a) (ii) are entitled to a probable cause hearing within three to six days and an expedited fact-finding hearing.*fn5 If delinquency is adjudicated at fact-finding, a probation investigation and, in the case of "designated felony acts,"*fn6 a diagnostic assessment*fn7 precede the dispositional hearing. The Family Court Judge can choose among several alternative dispositions, including suspension of judgment,*fn8 probation,*fn9 placement at home or with other individuals,*fn10 placement in a facility or school where treatment is available*fn11 or restrictive placement (incarceration).*fn12 The statutory criteria for determining the appropriate disposition emphasize the needs and best interests of the juvenile, the information provided by the probation investigation and diagnostic assessment, the character of the offense and the need for protection of the community.*fn13 Some alternatives, however, are foreclosed or available only on a limited basis. The Family Court Judge has no option to transfer the juvenile to an adult criminal tribunal. In addition, placement in a treatment facility turns upon the availability of space and the consent of the particular facility.*fn14 Even though a Family Court Judge may determine that placement for treatment is the appropriate disposition, therefore, the actual options in a particular case may be limited to probation or incarceration.
The statutory scheme thus contains facial incongruities.
Preventive detention is authorized solely upon a finding that a juvenile may do an act in the interim between the petition and fact-finding which would be a crime if done by an adult. The potential crimes are not limited to felonies or violent crimes but include every act which constitutes a crime under the New York Penal Law.*fn15 The statute itself offers no procedural safeguards and does not set out substantive criteria, other than the conclusory "serious risk" test, such as prior court contacts or lack of family supervision, to limit which accused juveniles may be detained.*fn16 At disposition, on the other hand, elaborate statutory provision is made for collecting diagnostic and other information, and specific criteria are established to guide the Family Court Judge.*fn17
THE STATUTORY SCHEME IN PRACTICE
The incongruities of the statutory scheme yield a paradoxical result in practice. The parties have waged a battle of statistics regarding the actual disposition of cases involving juveniles detained under 739(a) (ii).*fn18 However, one critical fact has been established -- the vast majority of juveniles detained under 739(a) (ii) either have their petitions dismissed before an adjudication of delinquency or are released after adjudication. Of the representative case studies submitted as evidence, for example, the defendants' version of events indicates that well over two-thirds of the juveniles held under 739(a) (ii) were released at or before the dispositional hearing.*fn19
The result in practice is that the vast majority of juveniles considered sufficiently dangerous by the Family Court to justify pre-trial incarceration under 739(a) (ii) are in fact released by prosecutors or by the Family Court within days or weeks. Defendants attribute this peculiar result to the statutory incongruities described above. Detention decisions under 739(a) (ii) emphasize crime prevention and are made on the basis of limited information presented in summary fashion. Dispositional determinations, on the other hand, take the juvenile's welfare and potential for treatment into account and are based on more detailed and extensive information.
The defendants offered expert testimony by a Family Court Judge concerning the actual practice under the statutory scheme.*fn20 He testified that the detention hearing under 739(a) (ii) usually involves only the Family Court Judge, a prosecutor, a Court Liaison Officer, the juvenile, his or her attorney, and the parents or their representative.*fn21 It takes place soon after the arrest and a stenographic record is kept. In the typical case, the evidence before the Judge is limited to: (a) the petition for delinquency and an affidavit by a witness stating the petition is accurate; (b) a recommendation by the Court Liaison Officer to detain or release the juvenile based on inquiries and ...