cedures matching several of those suggested by the 1974 Act are achieved through these clarifications. 2. Present Federal Law Section 3603 incorporates the major provisions of chapter 403 of title 18, dealing with Juvenile Delinquency. The relevant sections will be discussed in detail below. Prior to the 1974 Act, section 5032 provided for juvenile delinquency proceedings against any alleged juvenile offender not surrendered to state authorities or directed by the Attorney General to be treated as an adult. However, the juvenile was required to consent to such juvenile delinquency proceedings. The 1974 Act, in 18 U.S.C. 5032, permits the juvenile to request adult treatment in writing, a slight modification of the consent provision. Under the pre-1974 section 5032 of title 18, the Attorney General had an absolute discretion to have any juvenile tried as an adult. Although this discretion is rarely exercised, the Committee deems such unreviewable discretion as to all offenses to be inappropriate given the purposes of treatment of youths as juveniles. The Committee has endorsed the changes made in this discretionary power under the 1974 Act in the new 18 U.S.C. 5032. These changes will be discussed in more detail below. The 1974 Act also continued the provisions of former 18 U.S.C. 5032 which require that the juvenile be proceeded against by information, and which prohibit the institution of a criminal prosecution for the same offense.6 Jurisdiction over juvenile delinquency proceedings was established in the Federal district courts by 18 U.S.C. 5033 prior to the 1974 Act and by 18 U.S.C. 5032 thereafter. Both of these statutes eliminate the requirement of a jury trial for such proceedings, and require the court fully to apprise the juvenile of his rights and of the consequences of his consent to the juvenile delinquency proceedings before accepting that consent. The Supreme Court has declared that no right to a jury trial exists in juvenile court proceedings. Moreover the Federal courts have held that waiver of the right to a jury trial by consent to juvenile delinquency proceedings is not an unconstitutional infringement on the juvenile's rights. The full panoply of procedural rights in juvenile proceedings depends on the standard of "fundamental fairness" developed by the Supreme Court." This standard does not, nevertheless, extend all requirements of the criminal process to the juvenile setting, since such an extension would destroy the aims of the juvenile proceedings. The current statute is, thus, an attempt to codify some of the constitutional requirements for due process in juvenile proceedings. Disposition of the juvenile was dealt with in 18 U.S.C. 5034 before the 1974 Act and by 18 U.S.C. 5037 thereafter. The original statute provided that a juvenile found delinquent by the court may be either placed on probation or committed to the custody of the Attorney General for a period not to exceed his minority.10 Any commitment could • See 1974 Act. supra note 1; 18 U.S.C. 5032. 7 McKeiver v. Pennsylvania, 403 U.S. 528 (1971). 8 See United States v. King, 482 F.2d 454 (6th Cir.), cert. denied, 414 U.S. 1076 (1973); United States v. James, 464 F.2d 1228 (9th Cir.), cert. denied, 409 U.S. 1086 (1972); Cotton v. United States, 446 F.2d 107 (8th Cir. 1971). Contra, Nieves v. United States, 280 F. Supp. 994 (S.D.N.Y. 1968). In re Gault, 387 U.S. 1 (1967); see also In re Winship, 397 U.S. 358 (1970). 10 The use of this vague term has caused some difficulty where the age of majority is other than twenty-one years. See, e.g., United States v. Minor 455 F.2d 937 (6th Cir.), cert. denied, 406 U.S. 975 (1972). For purposes of Federal law, however, the applicable standard is held to be 21 years of age. United States v. Hall, 306 F. Supp. 735 (E.D. Tenn. 1969). not exceed the maximum term permitted for a criminal conviction on the offense charged. Commitment was to be in the custody of any public or private agency designated for the purpose by the Attorney General. Further, the court could commit a delinquent for observation and study at an appropriate classification center or agency before making a final disposition determination. Specific requirements as to the length of such evaluative commitment, the factors to be considered in such an evaluation, and the report on the evaluation were set forth in the statute. Most of the disposition provisions of the 1974 Act are codified in section 3603 and will be discussed below. The final statute relevant to a discussion of section 3603 is the pre1974 18 U.S.C. 5036. That statute permitted the Director of the Bureau of Prisons to contract with public or private agencies or foster homes for the commitment of juvenile delinquents, including the use of necessary appropriations to defray costs. The 1974 Act continued this provision in 18 Ú.S.C. 5040. 3. Provisions of S. 1, as Reported The juvenile delinquency proceeding established by section 3603 is intended to provide the fundamental fairness that is constitutionally required. The procedures set forth are available to all persons included in the definition of "juvenile" under section 3606 (a) and clearly indicate the Code's preference for a juvenile proceedings where appropriate. The Committee has rejected the pre-1974 provision giving unreviewable discretion to the Attorney General to try any juvenile as an adult. The Committee has also concluded that, since there is no right to a jury trial for the juvenile to waive in foregoing criminal prosecution, 11 there is no need for him to consent to juvenile treatment, as currently required by statute.12 Under section 3603, the general rule is that a iuvenile who is not surrendered to State authorities shall be proceeded against as a juvenile delinquent. If, however, the juvenile "requests," in writing, that he be given adult treatment, the court will be required to grant that request. Upon motion of the Attorney General, moreover, the court may determine that a juvenile over the age of sixteen,13 charged with a serious felony, should be proceeded against as an adult. The same procedure applies to a juvenile less than sixteen years old who is charged with murder under section. 1601 (a) (1) or (a) (2).15 14 Section 3603 (b) establishes five specific criteria which must be considered by the court in making those determinations; establishment of such criteria is another innovation taken from the 1974 Act. The Committee believes that these criteria are essential to the fairness of the juvenile proceedings, and are a significant improvement over the arbitrary standards of the pre-1974 law. Former 18 U.S.C. 5031 auto 11 McKeiver v. Pennsylvania, supra note 7. It is the Committee's understanding that. notwithstanding the formal deletion in 18 U.S.C. 5033 of the sentence precluding jury trial. nothing in P.L. No. 93-415 was intended to confer any right to a jury trial in a juvenile delinquency proceeding. 12 18 U.S.C. 5033. 18 A person less than sixteen years old at the time of the offense charged would be barred from criminal prosecution as an adult under section 512 unless the offense is murder under section 1601 (a) (1) or 1601 (a) (2). or unless he requested trial as an adult. 14 Section 3603 (a) (2) specifies Class A. B. C. and D felonies as those which permit consideration of adult treatment: the 1974 Act drew the line at offenses carrying a maximum term of imprisonment of ten years or more; the cut-off point set forth in section 3603 is the closest analogy to that provision possible under the Code. 15 The gravity of this offense, in the Committee's opinion, warrants the possibility of an adult trial. matically excluded from treatment as juveniles persons charged with offenses subject to death or life imprisonment; as noted, this limitation has been rejected, and such treatment will be possible on motion of the Attorney General and in the court's discretion after application of the enumerated criteria. The five criteria focus on the nature and circumstances of the offense, the age and social background of the juvenile, his prior delinquency records, the likelihood of his reform before attaining his majority, and whether juvenile disposition will reflect the seriousness of the offense or fail to constitute a just response to it. Section 3603 (b), while providing the flexibility appropriate to these proceedings, avoids the vagueness inherent in the general standards of the Youth Corrections Act, 18 U.S.C. 5010.16 Subsection (c) sets jurisdiction over juvenile delinquency proceedings in the Federal district courts. As under the current statute, proceedings are to be initiated only by information, and no criminal prosecution for the offense may be instituted. After a finding of juvenile delinquency, the court is authorized by subsection (d) to place the juvenile either on probation or in official detention. Subsection (e) applies the Code provisions for adult probation to juvenile delinquents, setting forth the periods of applicable probation, and subsection (f) establishes the periods of official detention, paralleling the 1974 Act provisions set forth in the new 18 U.S.C. 5037. 17 Following the lead of the 1974 Act, the Committee has carefully differentiated between those found to be juvenile delinquents prior to their eighteenth birthday, and those who are between eighteen and twenty-one when they are adjudicated as delinquent based upon acts occurring prior to their eighteenth birthday. In the former case, probation can last until the juvenile's twenty-first birthday and imprisonment until the lesser of his twenty-first birthday or the maximum imposable term for an adult charged with the same offense. In the latter case, probation can last until the person's twenty-third birthday and imprisonment until the lesser of his twenty-third birthday or the maximum imposable term for an adult charged with the same offense. Two points should be noted. First, no juvenile will be incarcerated for a term in excess of that imposable on an adult for the same offense, and, second, a youth close to his majority will still face. at least two years of incarceration for a juvenile act committed prior to his eighteenth birthday. Subsection (g) reenacts the provisions of current law for commitment for observation and study pending disposition. Such a commitment allows the court to base its disposition of the juvenile on the evaluation and analysis of relevant experts. This evaluation period may not, however, exceed sixty days. The Committee has rejected the concept of the 1974 Act that such commitment must be with the juvenile's consent, and the limitation of the study to thirty days as unrealistic in the light of the time and opportunity for observation needed to complete the study and to provide the court with the necessary guidance. 16 That Act is repealed by the Code. 17 The definition of the term "juvenile" in section 3606 (a) (2) specifically includes this category of delinquent offenders. Section 3604. Section 3605. The Bureau of Prisons is authorized by subsection (h) to designate appropriate facilities for the official detention of juveniles found delinquent and committed by the court. This provision also prohibits the use of any facility in which adults are officially held either awaiting trial or post-conviction. This statutory segregation of juveniles and adults may be violated only if necessary to provide transportation or medical care for the juvenile offender a very limited exception which the Committee expects to be applied rarely and for very short periods of time. As currently established, the Director of the Bureau of Prisons is authorized by subsection (i) to contract with the necessary agencies to provide appropriate facilities for the care and custody of juvenile delinquents. SECTION 3604. PAROLE OF JUVENILE DELINQUENT 1. In General Section 3604 provides for parole of a juvenile delinquent committed to official detention. 2. Present Federal Law Prior to 1974, the existing law permitting parole of a juvenile delinquent was set forth in 18 U.S.C. 5037. Only minor changes were made in 1974 18 although a new section on parole or probation revocation was added.19 These statutes provide that the Board of Parole may release a committed juvenile on such terms and conditions as it deems. proper. The prerequisites for such release under the pre-1974 law were that the juvenile must have "given sufficient evidence that he has reformed" and that the Board finds a "reasonable probability that the juvenile will remain at liberty without violating the law." The 1974 Act retained only the latter requirement. 3. Provisions of S. 1, as Reported Section 3604 relates parole of a juvenile to the parole provisions of the Code,20 with supervision of the Board of Parole transferred to the new Parole Commission. The Committee decided that the carefully designed parole provisions of the Code should be made applicable to the parole of a person adjudicated a juvenile delinquent and incarcerated. Accordingly, this section utilizes the criteria for release,21 terms and conditions of parole,22 and the revocation procedures 23 set forth in the parole provisions of the Code. These criteria are appropriate, and are also less subject to constitutional challenge than the vague terms of the present statute. SECTION 3605. USE OF JUVENILE DELINQUENCY RECORDS 1. In General Section 3605 establishes safeguards in the use of juvenile delinquency records essential to the non-criminal nature of the proceedings. Section 3606. The outlined practices insure necessary protections to the juvenile, enhancing the benefits derived from pursuing juvenile, rather than adult, prosecutions. 2. Present Federal Law There was no Federal statute dealing with the use of juvenile delinquency records in effect until the passage of a new 18 U.S.C. 5038 in the 1974 Act which provides restrictions on the use of juvenile records. Section 3605 is substantially similar to the new 18 U.S.C. 5038 although section 3605 changes one aspect of the 1974 Act. The 1974 Act prohibits the taking of fingerprints or photographs without the consent of the court unless the person is prosecuted as an adult, or the public use of the name or picture of a juvenile, by any of the media, in connection with juvenile proceedings. On reflection, this provision was rejected by the Committee. The Committee believes that the sealing provisions afford adequate provisions against improper use of identification information, and that the normal, in camera, juvenile proceeding grants sufficient protection against unfortunate publicity without the creation of regulations that adversely affect the press and could raise serious First Amendment problems. 3. Provisions of S. 1, as Reported Section 3605 provides appropriate protection for the confidentiality of juvenile delinquency proceedings. Throughout the proceedings the court must prevent disclosure of the record to unauthorized persons; after completion of the proceedings, the entire record is to be sealed. Thereafter, information concerning the sealed record may be released only as necessary to comply with an inquiry from another court, an agency preparing a presentence report for another court, a treatment agency or facility to which the juvenile has been committed, or a law enforcement agency investigating the commission of an offense. In these specific circumstances, the relevance of the juvenile record to the permitted inquiry is apparent. Such information may not be generally released in connection with employment. However, the record may be so utilized if the position is within a law enforcement agency or will "immediately and directly" affect national security. Information may not be released pursuant to any other inquiries, and such responses may not differ from responses about persons without any record of involvement in delinquency proceedings. Subsection (b) provides an important notice requirement. The court must inform the juvenile and his parents or guardian of his rights. regarding the confidentiality of his juvenile records in language comprehensible to those persons. SECTION 3606. DEFINITIONS FOR SUBCHAPTER A Section 3606 defines a juvenile as a person less than eighteen years old, or less than twenty-one years old if charged with an act of juvenile delinquency committed before his eighteenth birthday. This definition follows the 1974 Act 24 which added the latter phrase on twenty-one year olds to the existing law. The additional class of persons covered under the Code will be minimal in number. However, the definition 24 18 U.S.C. 5031. |