1. Appellant juvenile's challenge in habeas corpus proceeding on
ground that he was unconstitutionally deprived of his right to
trial by jury is inappropriate for resolution by this Court, since
the hearing before a Nebraska juvenile court judge at which
appellant was adjudged a delinquent was conducted before this
Court's decisions in
Duncan v. Louisiana, 391 U.
S. 145, and
Bloom v. Illinois, 391 U.
S. 194, which were held in
DeStefano v. Wood,
392 U. S. 631, to
apply only prospectively, and appellant would therefore have had no
constitutional right to a jury trial had he been tried as an adult
in a criminal proceeding.
2. It is not appropriate for this Court to decide whether
Nebraska law providing for proof of delinquency in a juvenile
proceeding under a preponderance of the evidence standard violates
due process requirements where no objection to that standard was
made at the hearing by appellant, who took no direct appeal, and
his counsel acknowledged that the evidence was sufficient to
support the delinquency finding even under a reasonable doubt
standard.
3. Because, standing alone, the issue could not be subject to
review by an appeal, this Court declines, in view of the barrenness
of the record, to exercise its certiorari jurisdiction to pass on
appellant's contention that the prosecutor's assertedly
unreviewable discretion under Nebraska case law whether to proceed
against appellant in juvenile court, rather than in ordinary
criminal proceedings, violated due process.
183 Neb. 461,
161 N.W.2d
508, appeal dismissed; certiorari dismissed as improvidently
granted.
Page 396 U. S. 29
PER CURIAM.
After a hearing before a juvenile court judge, appellant
DeBacker was found to be a "delinquent child" [
Footnote 1] and ordered committed to the Boys'
Training School at Kearney, Nebraska. [
Footnote 2] DeBacker did not seek direct review of his
commitment, but instead sought state habeas corpus. The Nebraska
District Court dismissed appellant's petition, a divided Nebraska
Supreme Court affirmed, [
Footnote
3] and last Term we noted probable jurisdiction over the
present appeal, 393 U.S. 1076. Because we find that resolution of
the constitutional issues presented by appellant would not be
appropriate in the circumstances
Page 396 U. S. 30
of this case, the appeal is dismissed.
See Rescue Army v.
Municipal Court, 331 U. S. 549.
1. Appellant asks this Court to decide whether the Fourteenth
and Sixth Amendments, in light of this Court's decisions in
Duncan v. Louisiana, 391 U. S. 145;
Bloom v. Illinois, 391 U. S. 194, and
In re Gault, 387 U. S. 1, require
a trial by jury in a state juvenile court proceeding based on an
alleged act of the juvenile which, if committed by an adult, would,
under the
Duncan and
Bloom cases, require a jury
trial if requested. In
DeStefano v. Woods, 392 U.
S. 631, we held that
Duncan and
Bloom
"should receive only prospective application," and stated that we
would
"not reverse state convictions for failure to grant jury trial
where trials began prior to May 20, 1968, the date of this Court's
decisions in
Duncan v. Louisiana and
Bloom v.
Illinois."
392 U.S. at
392 U. S. 633,
392 U. S. 635.
Because appellant's juvenile court hearing was held on March 28,
1966 --prior to the date of the decisions in
Duncan and
Bloom -- appellant would have had no constitutional right
to a trial by jury if he had been tried as an adult in a criminal
proceeding. It thus seems manifest that this case is not an
appropriate one for considering whether the Nebraska statute which
provides that juvenile hearings be "without a jury," Neb.Rev.Stat.
§ 43-206.03(2), is constitutionally invalid in light of
Duncan and
Bloom. [
Footnote 4]
Page 396 U. S. 31
2. Appellant next asks this Court to decide whether the
preponderance of the evidence standard for burden of proof in
juvenile court proceedings, required by Neb.Rev.Stat. § 4206.03(3),
satisfies the Due Process Clause of the Fourteenth Amendment.
However, at the appellant's juvenile court hearing, his counsel
neither objected to the preponderance of the evidence standard nor
asked the judge to make a ruling based on proof beyond a reasonable
doubt. In explaining why he did not seek a direct appeal from the
juvenile court's determination that appellant had committed the act
upon which rested the delinquent child finding, appellant's counsel
stated at oral argument before this Court:
"[I]t has been pointed out that I did not attack the sufficiency
of the evidence."
"Of course, the reason for that is obvious. The evidence is more
than sufficient to sustain a conviction of what he did. An appeal
on the sufficiency of the evidence would have been close to
frivolous."
(Tr. 41-42.) Later in oral argument, counsel acknowledged that
"[n]o matter what the standard was . . . , [o]ur evidence just
isn't insufficient." (Tr. 47.) And when specifically asked whether
"[t]he evidence was sufficient even under a reasonable doubt
standard," counsel responded: "Even under a reasonable doubt
standard. . . ." (Tr. 47.)
Given this commendably forthright explanation by appellant's
counsel, this case is not an appropriate vehicle for consideration
of the standard of proof in juvenile proceedings. [
Footnote 5]
Page 396 U. S. 32
3. Appellant finally asks us to decide whether due process is
denied because, as it is claimed, the Nebraska prosecutor had
unreviewable discretion whether he would proceed against appellant
in juvenile court, rather than in ordinary criminal proceedings.
The record shows (1) that appellant did not make this contention
before the juvenile court judge; (2) that appellant raised the
issue in his habeas corpus petition, but that it was not passed on
by the Nebraska District Court; (3) that appellant did not press
the District Court's failure to consider this issue in his appeal
to the Nebraska Supreme Court, and made only passing reference to
the issue in his brief to that court, and (4) that the opinions of
the Nebraska Supreme Court did not pass on the issue, or even refer
to the contention. Given the barrenness of the record on this
issue, in the exercise of our discretion, we decline to pass on it.
So far as we have been made aware, this issue does not draw into
question the validity of any Nebraska statute. [
Footnote 6] Therefore, it could not, standing
alone, be subject to review in this Court by way of an appeal.
See 28 U.S.C. § 1257(2). "[I]nsofar as notation of
probable jurisdiction may be
Page 396 U. S. 33
regarded as a grant of the certiorari writ" as to this issue, we
dismiss such writ as improvidently granted.
Mishkin v. New
York, 383 U. S. 502,
383 U. S.
513.
For the foregoing reasons, this appeal is
Dismissed.
[
Footnote 1]
"Delinquent child shall mean any child under the age of eighteen
years who has violated any law of the state or any city or village
ordinance." Neb.Rev.Stat. § 3-201(4). Appellant was charged with
having a forged check in his possession with the intent to utter it
as genuine, an act which, for an adult, would be forgery under
Neb.Rev.Stat. § 2601(2).
[
Footnote 2]
Appellant was 17 when committed, and it appears that, under
Nebraska law, he could be kept in the training school until his
21st birthday.
[
Footnote 3]
Four of the seven justices of the Nebraska Supreme Court thought
the Nebraska statutory provisions which require that juvenile
hearings be without a jury, Neb.Rev.Stat. § 43-206.03(2), and be
based on the preponderance of the evidence, Neb.Rev.Stat. §
43-206.03(3), were unconstitutional. The Nebraska Constitution
provides, however, that: "No legislative act shall be held
unconstitutional except by the concurrence of five judges."
Neb.Const., Art. V, § 2.
[
Footnote 4]
Although a comment made by appellant's counsel at oral argument
before this Court (in response to a question) suggests reliance
also on the Equal Protection Clause for the claim that a jury trial
was constitutionally required (Tr. 5), an examination of the record
clearly reveals that this was not any part of the basis on which
probable jurisdiction was noted here. Appellant made no equal
protection claim before the juvenile court, in his petition for
habeas corpus to the state courts, or in his jurisdictional
statement or brief in this Court. The Sixth Amendment, as reflected
in the Fourteenth, was the exclusive basis for appellant's claim
that he had a right to a jury trial. (
See "Questions
Presented" in Jurisdictional Statement 3-4, and Appellant's Brief
2.) Nor has any of the Nebraska courts below passed on any equal
protection claim.
[
Footnote 5]
This Court has recently noted probable jurisdiction to consider
this issue in
In e Winship (No. 85, Misc.), probable
jurisdiction noted,
post, p. 885.
[
Footnote 6]
In his petition for state habeas corpus, appellant did not
allege as to this issue that any Nebraska statutory provision was
invalid. Instead, he claimed:
"Petitioner is deprived of his liberty under the Fourteenth
Amendment of the Constitution of the United States when his right
to a jury trial and the protective procedures of the criminal code
are left to depend on the uncontrolled discretion of the prosecutor
as to whether petitioner should be proceeded against in juvenile
court or should be informed against in District Court under the
provisions of the code of criminal procedure."
If it can be fairly said that the prosecutor's discretion under
Nebraska law is "uncontrolled," or not subject to review, this is
not because of any explicit statutory provision making it such,
cf. Neb.Rev.Stat. § 43-205.04, but because of language in
Nebraska case law.
See State v. McCoy, 145 Neb. 750, 18
N.W.2d 101 (1945);
Fugate v. Ronin, 167 Neb. 70, 75,
91 N.W.2d
240, 243-244 (1958).
MR. JUSTICE BLACK, dissenting.
For the reasons set forth herein and in the dissenting opinion
of my Brother DOUGLAS, I dissent, and would reverse the judgment
below.
In February, 1968, appellant, who was then 17 years old, was
charged under the laws of Nebraska with being a "delinquent child"
[
Footnote 2/1] because he had a
forged bank check which he intended to use for his own purposes.
[
Footnote 2/2] At the hearing on
this charge, he asked for a jury trial, arguing that this was a
right guaranteed him by the Sixth Amendment to the Constitution and
that a statute prohibiting juries in "delinquency" proceedings
[
Footnote 2/3] was therefore
unconstitutional.
This Court, in
In re Gault, 387 U. S.
1 (1967), held that juveniles charged with being
"delinquents" as a
Page 396 U. S. 34
result of committing a criminal act were entitled to certain
constitutional safeguards -- namely, notice of the issues involved,
benefit of counsel, protection against compulsory
self-incrimination, and confrontation of the witnesses against
them. I can see no basis whatsoever in the language of the
Constitution for allowing persons like appellant the benefit of
those rights and yet denying them a jury trial, a right which is
surely one of the fundamental aspects of criminal justice in the
English-speaking world.
The Court here decides that it would not be "appropriate" to
decide this issue in light of
DeStefano v. Woods,
392 U. S. 631
(1968). That case held that the Sixth Amendment right to a jury
trial -- made applicable to the States in
Duncan v.
Louisiana, 391 U. S. 145
(1968) -- did not apply in state proceedings held prior to May 20,
1968. MR. JUSTICE DOUGLAS and I dissented in that case, as we have
in every case holding that constitutional decisions would take
effect only from the day they were announced. [
Footnote 2/4] I think this doctrine of
prospective-only application is nothing less than judicial
amendment of the Constitution, since it results in the
Constitution's meaning one thing the day prior to a particular
decision and something entirely different the next day, even though
the language remains the same. Under our system of government, such
amendments cannot constitutionally be made by judges, but only by
the action of Congress and the people. Depriving defendants of jury
trials prior to
Duncan violated the Constitution just as
much as would similar deprivations after
Page 396 U. S. 35
that decision, yet this Court treats these equal deprivations
with clearly unequal justice. I cannot agree to such refusals to
apply what appear to me to be the clear commands of the
Constitution.
[
Footnote 2/1]
Neb.Rev.Stat. § 43-201(4) provides that:
"Delinquent child shall mean any child under the age of eighteen
years who has violated any law of the state or any city or village
ordinance."
[
Footnote 2/2]
The State charged that appellant
"unlawfully, feloniously and knowingly [had] in his possession
and custody a certain false, forged and counterfeited bank check .
. . with the intent . . . to utter and publish said false, forged
and counterfeited bank check as true and genuine, knowing the same
to be a false, forged and counterfeited bank check, and with the
intent then and there and thereby to prejudice, damage and defraud
. . well knowing the same to be falsely made, forged and
counterfeited, contrary to the form of the Statutes in such cases
made and provided, and against the peace and dignity of the State
of Nebraska."
App. 1-2. It is undisputed that such acts constitute the crime
of forgery under state law. Neb.Rev.Stat. § 2601(2).
[
Footnote 2/3]
Neb.Rev.Stat. § 43-206.03(2) provides that juvenile hearings
"shall be conducted by the judge without a jury in an informal
manner. . . ."
[
Footnote 2/4]
Linkletter v. Walker, 381 U. S. 618,
381 U. S. 640
(1965) (dissenting opinion);
Johnson v. New Jersey,
384 U. S. 719,
384 U. S. 736
(1966) (dissenting opinion);
Stovall v. Denno,
388 U. S. 293,
388 U. S. 302,
388 U. S. 303
(1967) (dissenting opinions);
DeStefano v. Woods,
392 U. S. 631,
392 U. S. 635
(1968) (dissenting opinion);
Halliday v. United States,
394 U. S. 831,
394 U. S. 835
(1969) (dissenting opinion);
see also Desist v. United
States, 394 U. S. 244,
394 U. S. 254
(1969) (concurring in judgment).
MR. JUSTICE DOUGLAS, dissenting.
In
DeStefano v. Woods, 392 U.
S. 631,
392 U. S. 635,
I stated my view that the decisions in
Duncan v.
Louisiana, 391 U. S. 145, and
Bloom v. Illinois, 391 U. S. 194,
which guaranteed to adults in serious criminal cases and contempts
the right to a trial by jury, should be given retroactive effect.
* In light of this
view, I am unable to join the Court's per curiam opinion in this
case, holding that, because appellant's juvenile court hearing was
held prior to the date of the decisions in
Duncan and
Bloom, the Court is precluded from deciding appellant's
right to a jury trial.
I would reach the merits and hold that the Sixth and Fourteenth
Amendments require a jury trial as a matter of right where the
delinquency charged is an offense that, if the person were an
adult, would be a crime triable by jury. Such is this case, for
behind the facade of delinquency is the crime of forgery.
As originally conceived, the juvenile court was to be a clinic,
not a court; the judge and all of the attendants were visualized as
white-coated experts there to supervise, enlighten, and cure -- not
to punish.
These white-coated people were surrogates, so to speak, of the
natural parent. As stated in one of the leading cases:
"To save a child from becoming a criminal, or from continuing in
a career of crime, to end in maturer
Page 396 U. S. 36
years in public punishment and disgrace, the legislature surely
may provide for the salvation of such a child, if its parents or
guardian be unable or unwilling to do so, by bringing it into one
of the courts of the state without any process at all, for the
purpose of subjecting it to the state's guardianship and
protection. The natural parent needs no process to temporarily
deprive his child of its liberty by confining it in his own home,
to save it and to shield it from the consequences of persistence in
a career of waywardness, nor is the state, when compelled, as
parens patriae, to take the place of the father for the
same purpose, required to adopt any process as a means of placing
its hands upon the child to lead it into one of its courts. When
the child gets there and the court, with the power to save it,
determines on its salvation, and not its punishment, it is
immaterial how it got there. The act simply provides how children
who ought to be saved may reach the court to be saved."
Commonwealth v. Fisher, 213 Pa. 48, 53, 62 A. 198, 200
(1905).
This new agency -- which stood in the shoes of the parent or
guardian -- was to draw on all the medical, psychological, and
psychiatric knowledge of the day and transform the delinquent.
These experts motivated by love were to transform troubled children
into normal ones, saving them from criminal careers.
Many things happened that prevented this dream from becoming a
widespread reality. First, municipal budgets were not equal to the
task of enticing experts to enter this field in large numbers.
Second, such experts as we had, notably the psychiatrists and
analysts, were drawn away by the handsome fees they could receive
for rehabilitating the rich. Third, the love and tenderness alone,
possessed by the white-coated judge and attendants, were not
sufficient to untangle the web of subconscious
Page 396 U. S. 37
influences that possessed the troubled youngster. Fourth,
correctional institutions designed to care for these delinquents
often became miniature prisons, with many of the same vicious
aspects as the adult models. Fifth, the secrecy of the juvenile
proceedings led to some overreaching and arbitrary actions.
As Mr. Justice Fortas stated in
Kent v. United States,
383 U. S. 541,
383 U. S.
556:
"There is evidence, in fact, that there may be grounds for
concern that the child receives the worst of both worlds: that he
gets neither the protections accorded to adults nor the solicitous
care and regenerative treatment postulated for children."
In
Kent, the Court held that a valid waiver of the
"exclusive" jurisdiction of the Juvenile Court of the District of
Columbia required
"a hearing, including access by . . . counsel to the social
records and probation or similar reports which presumably are
considered by the court, and . . . a statement of reasons for the
Juvenile Court's decision."
Id. at
383 U. S. 557.
Although the opinion in that case emphasized that "the basic
requirements of due process and fairness" be satisfied in such
proceedings,
id. at
383 U. S. 553,
the decision itself turned on the language of a federal
statute.
The first expansive treatment of the constitutional requirements
of due process in juvenile court proceedings was undertaken in
In re Gault, 387 U. S. 1. That
case involved a 15-year-old boy who had been committed by an
Arizona juvenile court to the State Industrial School "for the
period of his minority, unless sooner discharged by due process of
law" for allegedly making lewd telephone calls. The Court in
Gault abandoned the view that due process was a concept
alien to the philosophy and work of the juvenile courts. Mr.
Justice Fortas, speaking for the Court, stated: "Under our
Constitution, the condition of being a boy does not justify a
kangaroo court."
Id. at
387 U. S. 28. The
Court held that a juvenile is entitled to adequate and timely
notice
Page 396 U. S. 38
of the charges against him, the right to counsel, the right to
confront and cross-examine witnesses, and the privilege against
self-incrimination.
Since the decision in
Gault, lower courts have divided
on the question whether there is a right to jury trial in juvenile
proceedings. Those courts which have granted the right felt that it
was implicit in
Gault. Nieves v. United
States, 280 F.
Supp. 994 (D.C.S.D.N.Y.1968);
Peyton v. Nord, 7 N.M.
717,
437 P.2d 716
(1968);
In re Rindell, 2 BNA Cr.L. 3121 (Providence, R.I.,
Fam.Ct., Jan.1968). Those who have denied the right have reasoned
either that jury trial is not a fundamental right applicable to the
States or that it is not consistent with the concept of a juvenile
court.
People v. Anonymous, 56 Misc.2d 725, 289 N.Y.S.2d
782 (Sup.Ct.1968);
Commonwealth v. Johnson, 211 Pa.Super.
62, 234 A.2d 9 (1967).
Duncan and
Bloom have
negated the former reason. Whether a jury trial is in conflict with
the juvenile court's underlying philosophy is irrelevant, for the
Constitution is the Supreme Law of the land.
Given the fundamental nature of the right to jury trial as
expressed in Duncan and Bloom, there is, as I see it, no
constitutionally sufficient reason to deprive the juvenile of this
right. The balancing of the rehabilitative purpose of the juvenile
proceeding with the due process requirement of a jury trial is a
matter for a future Constitutional Convention.
The idea of a juvenile court certainly was not the development
of a juvenile criminal court. It was to have a healthy specialized
clinic, not to conduct criminal trials in evasion of the
Constitution and Bill of Rights. Where there is a criminal trial
charging a criminal offense, whether in conventional terms or in
the language of delinquency, all of the procedural requirements of
the Constitution and Bill of Rights come into play.
I would reverse this judgment.
* This has been my position with respect to all comparable
constitutional decisions.
See, e.g., Desist v. United
States, 394 U. S. 244,
394 U. S.
255-256 (dissenting opinion);
DeStefano v.
Woods, 392 U. S. 631,
392 U. S. 635
(dissenting opinion), and cases cited therein.