On petition for writ of certiorari to the United States Court of
Appeals for the District of Columbia Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr.
Justice MARSHALL concur, dissenting.
Petitioner was 16 years old at the time of his arrest and at the
time of his indictment for armed robbery of a post office. He was
charged as an adult under 16 D.C.Code 2301(3)(A).* He
Page 412 U.S.
909 , 910
moved to dismiss the indictment, alleging that the statutory
basis for prosecuting him as an adult failed to provide him with
procedural due process. The District Court, 330 F. Supp. 34,
dismissed the indictment and the Court of Appeals,
472 F.2d
1329, by a divided vote reversed that judgment.
Under the statute of the District of Columbia involved in Kent
v. United States,
383
U.S. 541, a juvenile, age 16 or older, who is charged with a
felony might be held for trial as though he were an adult, if the
Juvenile Court waived jurisdiction. Kent held that the Act, read in
light of 'the essentials of due process and fair treatment,' Id.,
at 562, 557, 86 S. Ct. at 1057, required a hearing on whether the
Juvenile Court should waive its exclusive jurisdiction over the
juvenile and transfer him to the criminal court of the District.
And in In re Gault,
387
U.S. 1, we held that where under a state junvenile court act a
juvenile is declared 'delinquent' and either confined or held for
regular criminal prosecution, there must be a due process hearing
on the issue of 'delinquency.'
The District of Columbia Act was modified after Kent so as to
give the U. S. Attorney the power to remove a juvenile from the
statutory category of 'child' merely by charging him with a
designated felony. The House Report No. 91-907, 91st Cong., 2d
Sess., at 50, explains the reason for the change:
'Because of the great increase in the
number of serious felonies committed by juveniles and because of
the substantial difficulties in transferring juvenile offenders
charged with serious felonies to the jurisdiction of the adult
court under present law, provisions are made in this subchapter for
a better mechanism for separation of the violent youthful offender
and recidivist from the rest of the juvenile community.'
Page 412 U.S.
909 , 911
The 'substantial difficulties' are obviously the constitutional
rights explicated in Kent and in Gault. The 'better mechanism' is
the use of the short cut employed, viz: the discretion of the
prosecutor. Two rather large questions are presented and they seem
to me to be substantial.
First. A juvenile or 'child' is placed in a more protected
position than an adult, not by the Constitution but by an Act of
Congress. In that category he is theoretically subject to
rehabilitative treatment. Can he on the the whim or caprice of a
prosecutor be put in the class of the run- of-the-mill criminal
defendants, without any hearing, without any chance to be heard,
without an opportunity to rebut the evidence against him, without a
chance of showing that he is being given an invidiously different
treatment than others in his group? Kent and Gault suggest that
those are very substantial constitutional questions.
Second. The barricade behind which the prosecutor operates is
that this, like other prosecutions, is committed to his informed
discretion, which is beyond the reach of judicial intrusion.
Justice Black and I said in dissent in Berra v. United States,
351 U.S. 131,
135, 140, 691:
'. . . it is true that under our
system Congress may vest the judge and jury with broad power to say
how much punishment shall be imposed for a particular offense. But
it is quite different to vest such powers in a prosecuting
attorney. A judge and jury act under procedural rules carefully
prescribed to protect the liberty of the individual. Their
judgments and verdicts are reached after a public trial in which a
defendant has the right to be represented by an attorney. No such
protections are thrown around decisions by a prosecuting attorney.
Substitution of the prosecutor's caprice for
Page 412 U.S.
909 , 912
the adjudicatory process is an action I am not willing to
attribute to Congress in the absence of clear command. Our system
of justice rests on the conception of impersonality in the criminal
law.'
The Administrative Procedure Act, 5 U.S.C. 701 et seq., gives
the courts power to review 'agency action' and to hold it unlawful,
if found to be 'contrary to constitutional right, power, privilege,
or immunity.' 706(2)(B). This arguably is broad enough to reach the
exercise of a prosecutor's discretion in a way that violates the
standards of due process laid down in Kent and in Gault.
One needs no reminder that government too can be lawless, that
government cannot lead the way in law and order when it is the
great malefactor. The Administrative Procedure Act is indeed part
of the citizen's arsenal against lawless government. As Kenneth
Davis said in Discretionary Justice (1969) p. 210 '. . . under the
Administrative Procedure Act judicial review of the exercise of
executive discretion is the rule and unreviewability is the
exception.'
Respecting 'the settled judicial tradition' not to interfere
with the prosecuting function Kenneth Davis says:
'Is it because the tradition became
settled during the nineteenth century when courts were generally
assuming that judicial intrusion into any administration would be
unfortunate? Is it because the tradition became settled while the
Supreme Court was actuated by its 1840 remark that 'The
interference of the Courts with the performance of the ordinary
duties of the executive departments of the government, would be
productive of nothing but mischief'? Is it because the tradition
became settled before the courts made the twentieth-century
discovery that the courts can interfere with executive
Page 412 U.S.
909 , 913
action to protect against abuses but at the same time can avoid
taking over the executive function? Is it because the tradition
became settled before the successes of the modern system of limited
judicial review became fully recognized?
'On the basis of what the courts know
today about leaving administration to administrators but at the
same time providing an effective check to protect against abuses,
should the courts not take a fresh look at the tradition that
prevents them from reviewing the prosecuting function? Throughout
the governmental system, courts have found that other
administrative or executive functions are in need of a judicial
check, with a limited scope of review. The reasons for a judicial
check of prosecutors' discretion are stronger than for such a check
of other administrative discretion that is now traditionally
reviewable. Important interests are at stake. Abuses are common.
The questions involved are appropriate for judicial determination.
And much injustice could be corrected.' Id., 211-212.
These two questions are large questions and substantial ones. I
would grant the petition for certiorari in order to resolve
them.
Footnotes
[
Footnote *] That section reads:
'(3) The term 'child' means an
individual who is under 18 years of age, except that the term
'child' does not include an individual who is sixteen years of age
or older and--
'(A) charged by the United States
attorney with (i) murder, forcible rape, burglary in the first
degree, robbery while armed, or assault with intent to commit any
such offense, or (ii) an offense listed in clause (i) and any other
offense properly joinable with such an offense. . . .'
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