Lead Opinion
{1} Defendant appeals his adult sentence as a consequence of the trial court’s findings that he was not amenable to treatment as a juvenile or eligible for commitment to an institution for the mentally disordered or developmentally disabled pursuant to NMSA 1978, § 32A-2-20 (1996). Defendant argues that the state and federal constitutions require the State to prove these findings to a jury beyond a reasonable doubt before a court may exercise its discretion to sentence a child as an adult. In support of his federal constitutional argument, Defendant relies on Apprendi v. New Jersey,
I. FACTS AND PROCEDURAL HISTORY
{2} Defendant turned fourteen years old on December 14, 1996. On March 13, 1997, after breaking into and vandalizing several other houses, Defendant and an accomplice broke into and ransacked Victim’s home while Victim and his wife were away. The two juveniles shot Victim’s dog with a .22 caliber rifle, which they had stolen from another house. In addition, Defendant took a .30-30 rifle from a wall in Victim’s home and fired several rounds into a wall.
{3} When Victim and his wife returned home with their neighbors, they were alarmed to find that their dog had been shot while tied up in the yard. Victim went inside the house to call the police. The phone was next to a window outside of which Defendant and his accomplice were hiding. Defendant saw Victim, and assuming that Victim had likewise seen him, shot Victim in the chest with the .30-30 rifle. The accomplice then shot Victim in the head “to put him out of his misery.”
{4} Around the time that Victim was killed, Victim’s wife went inside the house. She saw her husband’s body and begged the boys not to kill her. One of the boys told her to give them money and the keys to a truck or they would kill her as well. Wife told them that she did not have any money or the keys. The boys then searched Victim’s body, and Wife left the house in search of the neighbors. The boys came out of the house and fired 18 to 22 shots toward Wife and the neighbors. One of the neighbors was hit either by bullet fragments or fragments from a nearby car. The shot that hit the neighbor was fired from the .30-30 rifle that Defendant had stolen from Victim’s home. At the time of his arrest, Defendant told the arresting officer that he had shot at the neighbor from about one-half mile away and that it was “a hell of a good shot” but “nothing to be proud of.”
{5} Defendant pleaded guilty to second degree murder, aggravated burglary, aggravated battery, and two counts of aggravated assault. Pursuant to Section 32A-2-20(A), the prosecutor had earlier filed a notice of intent to seek an adult sentence. At the amenability hearing, Defendant called eight witnesses, three of whom were experts. The expert witnesses agreed that, at the time of the murder, Defendant was suffering from a variety of mental disorders. These witnesses also testified that Defendant was amenable to psychiatric treatment. Nonetheless, the trial court found, by clear and convincing evidence, that Defendant was not amenable to treatment as a child and was ineligible for commitment to an institution, and exercised its discretion under Section 32A-2-20(A) to sentence Defendant to 22 years in an adult correctional facility. Defendant then moved for a reconsideration of the adult disposition based on recommendations made in a presentence report ordered by the court, arguing that the court’s findings needed to be based on proof beyond a reasonable doubt. The court denied Defendant’s motion for reconsideration, after stating that it was persuaded beyond a reasonable doubt.
II. DISCUSSION
A. Preservation
{6} In its answer brief, the State argues that Defendant failed to preserve his argument that the “beyond a reasonable doubt” standard applies to the findings required by Section 32A-2-20(B). In support of its claim, the State argues that by submitting proposed findings of fact and conclusions
{7} To properly preserve an issue for appeal, a defendant must fairly invoke a ruling or decision by the trial court. Rule 12-216(A) NMRA 2001; State v. Aragon,
{8} On the first day of the amenability hearing, Defendant argued that the State was required to prove non-amenability and ineligibility for commitment beyond a reasonable doubt. Defendant then proffered proposed findings of fact and conclusions of law which advocated application of the “clear and convincing” standard of proof and argued to a like effect during closing arguments. After the trial court found Defendant non-amenable to rehabilitation and ineligible for commitment, Defendant filed a motion for identification of the standard of proof used by the court in its decision. In his motion, Defendant renewed his argument that the proper standard was beyond a reasonable doubt. Nonetheless, the trial court ruled that, as a matter of law, the proper standard was “clear and convincing” evidence:
I made my ruling based on the clear and convincing evidence argument that you [Defense counsel] made to me. I still think that’s the appropriate standard. However, upon receiving your motion, I considered the proof beyond a reasonable doubt____I’m going to rule that the standard is the clear and convincing. But I’m also going to state that even if it were the proof beyond a reasonable doubt, I’ve reflected on that also and I’m satisfied that it would meet that standard if that were the standard.
{9} The case at bar is distinguishable from the eases relied upon by the State in its answer brief. In State v. Campos,
{10} In addition, there is no suggestion in the record that either the court or the State were prejudiced by Defendant’s reintroduetion of the “beyond a reasonable doubt” argument after the court had made its ruling. The court was able to apply the higher standard to the facts and render a judgment without the need of further hearings. Finally, the State does not claim that it would have presented a different case had it known the court would apply the higher standard. Therefore, we hold that Defendant preserved his constitutional claims and will address the issues on the merits.
B. Constitutional Arguments
{11} Defendant argues that the federal constitution, as described in Apprendi, requires that the Section 32A-2-20(B) findings be made by a jury beyond a reasonable doubt. In addition, Defendant argues that the state constitution requires the application of the beyond a reasonable doubt standard, based on a comparison with other provisions of the Delinquency Act. In analyzing Defendant’s claims, this Court applies the interstitial approach outlined in State v. Gomez,
1. Background
{12} Before addressing Defendant’s constitutional arguments, it is necessary to put the issue before us in context. We therefore begin by briefly reviewing the history and purpose of New Mexico’s Delinquency Act, NMSA 1978, §§ 32A-2-1 to -33 (1993, as amended through 1996), as it relates to Defendant.
{13} The juvenile justice system is primarily concerned with the rehabilitation of children, although accountability, deterrence, and protection of the public are important goals. See § 32A-2-2 (“The purpose of the Delinquency Act [this article] is ... consistent with the protection of the public interest, to remove from children committing delinquent acts the adult consequences of criminal behavior, but to still hold children committing delinquent acts accountable for their actions ... and to provide a program of supervision, care and rehabilitation____”). In the hopes that rehabilitation will be successful, the juvenile system suspends some of the long term consequences of criminal behavior. See § 32A-2-18(A) (“A judgment in proceedings on a petition under the Delinquency Act [this article] resulting in a juvenile disposition shall not be deemed a conviction of crime nor shall it impose any civil disabilities ordinarily resulting from conviction of a ciime----”). The juvenile system also provides a flexibility in commitment procedures to allow the Children, Youth and Family Department (CYFD) to meet the rehabilitative goals of the Act. See State v. Adam M.,
{14} Since the creation of the juvenile justice system, however, the Legislature has recognized that, given finite resources and the time constraints imposed by the limited jurisdiction of the children’s court, the system cannot rehabilitate some children who commit serious crimes. See, e.g., § 32A-2-20(D), (E) (stating that child may be committed up to age twenty-one). Where evidence shows that a child will not benefit from the structure of rehabilitation or that the danger the child poses to the community outweighs the possible benefits of treatment within the juvenile system, the law has traditionally allowed a child to be transferred to the district court for prosecution as an adult. See, e.g., 1955 N.M. Laws, eh. 205, § 9 (allowing juvenile court to transfer juveniles over the age of fourteen years to district court for prosecution if juvenile charged with felony is found “not a proper subject for reformation or rehabilitation”).
{15} Prior to 1993, New Mexico maintained a system of transfer that was similar to systems developed within the federal and other state governments. However, the 1993 amendments to the Children’s Code created a new system that is unique in this country. Whereas most jurisdictions have maintained provisions allowing a court to waive or transfer juvenile court jurisdiction, New Mexico has chosen to abolish the transfer system in favor of vesting the children’s courts with the authority to sentence youthful offenders as adults. See Patricia Torbet, et al., Juveniles Facing Criminal Sanctions: Three States That Changed the Rules (2000) chttp:// ojjdp.ncjrs.org/pubs/court.html# 181203>. Although the form of the statute may be different, the purpose and effect remain the same.
{16} In 1993, the Legislature created three “classes” of juvenile offenders: serious youthful offenders, youthful offenders, and delinquent offenders. See §§ 32A-2-3(C), (H), (I). These classifications reflect the rehabilitative purpose of the Delinquency Act, coupled with the realization that some juvenile
{17} The class of youthful offenders to which Defendant belongs includes children fourteen years or older who are adjudicated guilty of any one of twelve enumerated violent felonies or who have three prior felony adjudications in the previous three years in addition to their current felony offense, as well as children fourteen years of age who are adjudicated guilty of first degree murder. See § 32A-2-30). For these offenders, the determination of amenability to rehabilitation within the juvenile system is a more complicated question. Under the Delinquency Act, youthful offenders are entitled to be sentenced within the juvenile system unless the court makes the findings required by Section 32A-2-20(B). The provisions of Section 32A-2-20 apply if the prosecutor has filed an intent to seek an adult sentence and the child has been adjudicated guilty. See §§ 32A-2-20(B), 32A-2-3(I). Under Section 32A-2-20(B), a trial court has the discretion to sentence a youthful offender as an adult only if the court finds that “the child is not amenable to treatment or rehabilitation as a child in available facilities,” and “the child is not eligible for commitment to an institution for the developmentally disabled or mentally disordered.” In making these findings, a court is required by Section 32A-2-20(C) to consider the following factors:
(1) the seriousness of the alleged offense;
(2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
(3) whether a firearm was used to commit the alleged offense;
(4) whether the alleged offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted;
(5) the sophistication and maturity of the child as determined by consideration of the child’s home, environmental situation, emotional attitude and pattern of living;
(6) the record and previous history of the child;
(7) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child by the use of procedures, services and facilities currently available; and
(8) any other relevant factor, provided that factor is stated on the record.
{18} If the court finds that a child is neither amenable to treatment as a child nor eligible for commitment, the court may impose either a juvenile disposition or an adult sentence. See § 32A-2-20(A). The findings trigger the court’s discretion; they do not require the court to sentence a juvenile as an adult. By contrast, a finding of either amenability to rehabilitation or eligibility for commitment restricts the court’s range of possible dispositions to those available within the juvenile system. See § 32A-2-20(B), (E).
{19} Although the consequences of the determination that a youthful offender is non-amenable to treatment and ineligible for
{20} With these considerations in mind, we now turn to Defendant’s constitutional arguments. The issues presented by this case are whether the due process clause of the Fourteenth Amendment to the United States Constitution requires that the Section 32A-2-20(B) findings be made by a jury beyond a reasonable doubt or whether Article II, Section 4 of the New Mexico Constitution requires that the findings be made by the court pursuant to a reasonable doubt standard.
2. Apprendi
{21} Defendant does not argue that federal law decided prior to Apprendi compels the application of the “beyond a reasonable doubt” standard to the Section 32A-2-20 findings. To the contrary, prior to Apprendi, most federal courts that have squarely addressed this issue hold that the proper standard for transfer is preponderance of the evidence. See United States v. Parker,
{22} In Apprendi, the Supreme Court held that, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
{23} Defendant argues that the Apprendi decision applies to the amenability determination, given the fact that the Section 32A-2-20(B) findings are necessary to expose a youthful offender to the possibility of an adult sentence. Defendant argues that the consequences of sentencing as an adult in terms of both the length of incarceration and removal of the protections of the juvenile system render the amenability determinations more like elements of a crime than sentencing factors. We disagree. We conclude that accepting Defendant’s argument would require an overly broad interpretation of Apprendi that is unsupported by the Court’s reasoning.
{24} By way of introduction, we note that a determination that a child is not amenable to treatment within the juvenile system differs from findings related to the elements of crime in three significant ways. First, while findings of guilt are measures of the degree of an individual’s criminal culpability, the finding that a child is or is not amenable to
{25} Whether ultimately given a juvenile disposition or an adult sentence, every youthful offender has the constitutional right to the State’s proof of every element of a criminal offense beyond a reasonable doubt. See Apprendi,
{26} The second difference between the Section 32A-2-20(B) findings and the elements of a crime is in the nature of the findings. The determination of a child's prospects for rehabilitation is a complicated and difficult question that requires consideration of a child’s environment, age, maturity, past behavior, and predictions of future behavior as well as specifics of the offense as they relate to the prospects of rehabilitation. Unlike the finding that a child has committed a criminal offense, the finding that a child is not amenable to treatment as a child within the juvenile system requires a predictive, more than historical, analysis.
{27}'As such, a finding of non-amenability is different in nature from the type of findings discussed in Apprendi. Whether a defendant acts with the intention to intimidate another based on prejudice or bias is a fact susceptible to proof beyond a reasonable doubt. See Apprendi,
[T]he initial inquiry in a civil commitment proceeding is very different from the central issue in either a delinquency proceeding or a criminal prosecution. In the latter cases the basic issue is a straightforward factual question — did the accused commit the act alleged? There may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and ’ dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists. Given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonabledoubt that an individual is both mentally ill and likely to be dangerous.
{28} Additionally, a court, which has regular exposure to both the criminal and juvenile systems, is in a much better position to determine an individual child’s amenability to treatment within existing programs. In their day-to-day interactions with sentencing decisions, presentenee reports, probation violations, and the whole range of criminal and juvenile justice issues, trial courts become knowledgeable about the basic considerations governing appropriate dispositions for offenders.
{29} With the foregoing as background, the important point is that the reasoning of the Apprendi decision itself supports our result. In reaching its holding, the Court distinguished and upheld trial courts’ traditional discretion to consider factors relating both to the offense and the offender in imposing a sentence within the range set by statute. See id. at 2358. The Court also distinguished its holding from cases dealing with fact-finding in capital sentencing on the grounds that it is the jury’s verdict of guilty of first degree murder that exposes a defendant to the possibility of a death sentence. See id. at 2366. The Court adopted the position that
“[ojnce a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed---- The person who is charged with actions that expose him to the death penalty has an absolute entitlement to jury trial on all the elements of the charge.”
Id. (quoting Almendarez-Toms v. United States,
{30} The test for determining whether a particular fact is a sentencing factor or an element of the crime “is one not of form, but effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Apprendi,
{31} While a finding of non-amenability and ineligibility for commitment may expose a youthful offender to a longer period of deprivation of liberty than is possible under the Children’s Code, only two factual findings are required to expose a child to the possibility of adult sentencing: (1) the child’s age at the time of the offense and (2) the jury’s verdict or a plea of guilty to a specifically enumerated felony or to any felony, provided it is in fact the child’s fourth felony in three years. Under Section 32A-2-20(D), if the court invokes an adult sentence, the sentence may be “less than, but shall not exceed, the mandatory adult sentence.” Therefore, at the time the child pleads or is adjudicated guilty of an offense, the range of possible sentences is fixed. In this case, the finding of non-amenability and ineligibility for commitment did not expose Defendant to a first degree sentence for a second degree crime as was the case in Apprendi We note that the plea agreement signed by Defendant prior to the amenability hearing included the range of juvenile dispositions as well as the adult sentences applicable to the crimes committed. Under no circumstances do the Section 32A-2-20(B) findings result in the child being found guilty of or sentenced for a greater offense. Furthermore, no child will be subject to the possibility of sentencing as an adult if, at the time of the finding of guilt, the child does not meet the statutory definition of a youthful offender under Section 32A-2-3(I).
{32} In conclusion, we hold that Apprendi is inapplicable to the Section 32A-2-20(B) findings.
3. State Constitution
{33} New Mexico cases have never articulated the standard of proof pursuant to which the findings required by Section 32A-2-20 are to be made. Prior versions of the children’s code statutorily established the very low standard of “reasonable grounds to believe” that the enumerated crime was committed
{34} Defendant argues that two provisions in the current Delinquency Act suggest the Legislature’s intent to apply the beyond a reasonable doubt standard to the Section 32A-2-20 findings. These two provisions, Section 32A-2-24(B) (requiring proof beyond a reasonable doubt in probation revocation hearings), and Section 32A-2-16(E) (requiring proof beyond a reasonable doubt in a delinquency proceeding), are readily distinguishable from the amenability determination under Section 32A-2-20(B). First, the requirement of proof beyond a reasonable doubt in a delinquency proceeding is constitutionally mandated. See In re Winship,
{35} We note that New Mexico courts have consistently held that the lack of a standard of proof for the amenability findings does not violate due process under the federal constitution. See State v. Doyal,
{36} Finally, when compared with the laws of other states, the lack of a discernible standard in Section 32A-2-20 appears in keeping with the majority rule. As of 1999, 47 states have statutes granting juvenile court judges the power to waive jurisdiction over cases involving juvenile offenders so that they may be transferred to an adult criminal court. See Patrick Griffen, Frequently Asked Questions (2000) < http://l61.58.45.127/stateprofiles/transfer2.html >. The most prevalent transfer statute gives the juvenile courts complete discretion in deciding which cases are appropriate for transfer. In the 46 states with discretionary transfer statutes, the majority require proof by substantial or a preponderance of the evidence. See id. In two states, the prosecution is required to prove non-amenability to treatment as a juvenile by clear and convincing evidence. See Miss. Code Ann. § 43-21-157 (1999); W. Va.Code § 49-5-10 (1997). In four states that combine discretionary and presumptive waiver provisions, the burden of proof by clear and convincing evidence rests upon the party seeking to rebut the presumption (for discretionary waivers, the prosecution; for presumptive waivers, the defendant). See Ark. Code Ann. § 9-27-318(h) (1999); Minn.Stat.
{37} Based on the legislative history of the code, New Mexico case law, and statutes from other jurisdictions, we find no reason to hold that the New Mexico Constitution requires a “beyond a reasonable doubt” standard. We need not decide in this case whether to adopt the preponderance standard advocated by the State in view of the trial court’s use of the “clear and convincing” standard and our upholding of its decision based on it in the next section of this opinion.
C. Sufficiency of the Evidence
{38} Defendant argues that whatever standard of proof is applicable, the State failed to prove that Defendant was not amenable to treatment as a juvenile or eligible for commitment to an institution for the developmentally disabled or mentally disordered. See § 32A-2-20(B). We disagree.
1. Standard of Review
{39} Defendant argues that this Court should review the entire record in a de novo type of manner to determine whether the evidence supported a finding that Defendant was not amenable to treatment as a juvenile or eligible for commitment. Defendant argues that State v. Sheets,
{40} In assessing a claim of evidentiary insufficiency, this Court asks whether substantial evidence supports the court’s decision. In re Ernesto M., Jr.,
2. Amenability to Treatment
{41} Defendant challenges the trial court’s finding of non-amenability on three grounds: (1) the court ignored the uncontradicted expert testimony that Defendant was amenable to treatment, (2) the court misunderstood or mischaracterized the expert testimony in its finding, and (3) the court misapplied the Section 32A-2-20(C) factors.
{42} The evidence regarding Defendant’s amenability to treatment or rehabilitation was not uncontradicted as Defendant suggests. Although the experts testified that Defendant had made some progress in therapy, the testimony indicated that he carried the risk of violence with him and that it was impossible to predict whether he would re-offend given that, at the time of the hearing, he was sheltered from his peers. At least one of the defense witnesses who had observed Defendant’s progress while in treatment testified that Defendant’s progress had been sporadic: some days Defendant seemed to work at getting better, other days he appeared to be just “playing the game.” Furthermore, several expert witnesses expressed concern over Defendant’s lack of remorse for the murder. Finally, most experts expressed an understanding that amenability to treatment or rehabilitation under Section 32A-2-20(B) is a bigger question than responsiveness to psychiatric care.
{43} As stated above, “[i]t is well settled in New Mexico that a factfinder may disregard the opinions of experts.” In re Ernesto M., Jr.,
{44} Furthermore, although the trial court did appear to misunderstand or misremember some of Ms. Grano’s testimony, other evidence supported the court’s conclusions. For example, although the court seemed to misunderstand Ms. Grano’s testimony regarding Defendant’s appearance of passivity at the time of the hearing, Ms. Grano later testified that it was impossible to predict whether Defendant’s passivity was a permanent change given that Defendant was sheltered from his peers at the time of the hearing.
{45} Finally, Defendant argues that the court erred by using the seven factors set forth in Section 32A-2-20(C) to control, rather than guide, its finding that Defendant was not “amenable to treatment or rehabilitation as a child in available facilities.” Section 32A-2-20(B)(l). We note that the court was required to consider and balance these factors in making its finding. See § 32A-2-20(C). Furthermore, contrary to Defendant’s assertion that factor (C)(7) is the only factor relevant to determining a child’s amenability to treatment, we believe that every factor provides important information about the child and the child’s prospects for rehabilitation. See § 32A-2-20(C).
{46} Defendant pleaded guilty to second degree murder, aggravated battery, two counts of aggravated assault, and aggravated burglary. Any one of these offenses alone was sufficient to subject Defendant to the possibility of adult sentencing. See § 32A-2-3(1) (list of crimes subjecting child to youthful offender status). These offenses were clearly committed in a violent and aggressive manner. After killing Victim, Defendant and his accomplice fired 18-22 shots at Wife and the neighbors. In addition, Defendant purposefully damaged Victim’s home. Furthermore, there was considerable evidence that Defendant had grown increasingly out-of-control and violent in the year preceding the murder. Several experts testified to an inability to predict whether Defendant would pose a threat of danger in the future, and Ms. Grano testified that rehabilitation was possible only with long term therapy at a
3. Eligibility for Commitment
{47} Defendant appears to argue that if any expert deems a child eligible for commitment under NMSA 1978, § 32A-6-13(1) (1995), or if any treatment facility is willing and able to accept the child, then the court must find the child eligible for commitment to an institution. However, this is not the standard under Section 32A-2-20(B)(2). In deciding whether Defendant was eligible for commitment, the trial court was required by statute to consider the seven factors listed in Section 32A-2-20(C). The court’s role in determining a child’s eligibility is not as simple as tallying votes for and against commitment. The trial court must observe the child, measure the credibility of witnesses, consider the security and appropriateness of available facilities, and analyze all the evidence in light of the Section 32A-2-20(C) factors. It was not enough that Defendant made some progress in therapy; the question was whether he could be successfully rehabilitated or treated for his mental illnesses given available facilities and the time remaining before Defendant reached the age of twenty-one.
{48} Furthermore, one expert witness testified that Defendant’s mental status would need to decline significantly before Defendant could be committed under Section 32A-6-13(1). If, at age 21, Defendant was dangerous to himself or others, but was not mentally ill, the State would be severely limited in its efforts to protect the public. In addition, another defense witness testified that, while Defendant may be eligible for some degree of residential treatment, he was not eligible for high security residential treatment. Finally, several experts testified that Defendant was ineligible for commitment to an institution for the developmentally disabled. Based on these opinions and a review of the evidence considered under the seven factors of Section 32A-2-20(C), we hold that substantial evidence supported the trial court’s finding that Defendant was not eligible for commitment by clear and convincing evidence.
III. CONCLUSION
{49} We affirm.
{50} IT IS SO ORDERED.
Concurrence Opinion
(specially concurring).
{51} I agree with the majority that affirmance is appropriate. However, I would take the opportunity to finally determine the standard of proof required to establish that a youthful offender is not amenable to treatment or rehabilitation. I concur in the result the majority has reached as to the Apprendi issue, though I cannot agree with most of the analysis which produces it.
STANDARD OF PROOF
{52} The majority declines to decide which standard of proof is appropriate for the amenability finding. I agree that the two provisions Defendant relies upon in the juvenile code do not support his argument, and I recognize that the majority accurately cites New Mexico ease law on this issue, but I believe it is time to settle the issue.
{53} In our last pronouncement on the issue — In re Ernesto M., Jr. — we rejected a constitutional challenge to Section 32A-2-20 by noting that the current provision gave more guidance than its predecessor, which had also passed constitutional muster. We held that the statute provided “elemental due process” (notice, hearing, assistance of counsel, and a statement of the judge’s decision rationale) and did not address what standard of proof was required. In re Ernesto M., Jr.,
{55} A standard of proof has at least two functions: It serves to guide the fact finder as to the level of confidence it should have in its decision and it serves as a means of allocating the risk of error between the litigants. In re Winship,
{56} By way of illustration, the Supreme Court in Santosky contrasted the bases for the preponderance of the evidence and beyond reasonable doubts standard as follows:
Thus, while private parties may be interested intensely in a civil dispute over money damages, application of a “fair preponderance of the evidence” standard indicates both society’s “minimal concern with the outcome,” and a conclusion that the litigants should “share the risk of error in roughly equal fashion.” [.Addington,441 U.S. at 423 ,99 S.Ct. 1804 .] When the State brings a criminal action to deny a defendant liberty or life, however, “the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” Id. The stringency of the “beyond a reasonable doubt” standard bespeaks the “weight and gravity” of the private interest affected, id., at 427,99 S.Ct. 1804 , society’s interest in avoiding erroneous convictions, and a judgment that those interests together require that “society imposte] almost the entire risk of error upon itself.” Id., at 424,99 S.Ct. 1804 .
Santosky,
{57} I appreciate the concern the majority expresses concerning the propriety of imposing the criminal beyond a reasonable doubt standard to this particular finding. Amenability is more predictive than historical. It is an attempt to predict the future conduct of the juvenile defendant. Moreover, the statute makes it clear that it is not simply a medical or psychological question. It is a mixed bag of history, potential for treatment, and a straightforward need to protect the public. In addition, by the time the trial court is making the amenability assessment, the juvenile has already been convicted or has pled to criminal conduct making the sentencing necessary. The conviction must occur under the normal beyond a reasonable doubt standard. Thus, by the time of sentencing, the criminal policy objectives noted above have, for the most part, been fulfilled.
{58} Employing the three-part test enunciated by the United States Supreme Court in Mathews v. Eldridge,
{59} Applying Mathews points to the need for at least an intermediate standard of clear and convincing evidence. The weight or value of the private interest at stake is clear and significant. Personal liberty and freedom of movement have consistently been treated as surpassing values in the United States, and state initiated proceedings curtailing freedom have consistently called for heightened standards of proof. The criminal standard is the benchmark, but there are other types of actions involving curtailment of personal freedom which invoke an intermediate standard, i.e., civil commitments (Addington,
{60} Of course, by the time a juvenile defendant faces an amenability hearing, he or she has already forfeited the right to be free as such. The choice at this point is between the juvenile and adult systems. With the former, the juvenile likely faces a shorter time of incarceration and the potential for treatment and rehabilitation. With the latter sentence, the juvenile faces significantly longer incarceration in a harsher environment and the prospects of little or no treatment and rehabilitation. Thus, while the individual interest at the time of the amenability hearing is muted, it is still significant.
{61} The risk of error is unquestionably heightened by the absence of a specific standard of proof which the trial courts know to apply. This is not to disparage the work, quality, or good faith of trial judges. It is simply a reflection of the difficulty of the task and a common sense observation that the lack of a specific standard makes the task that much harder. Faith in the quality of the children’s court bench is simply not an entirely satisfactory substitute for appropriate due process standards.
{62} The interests of the State are complex. Any adverse monetary impact created by meeting a higher standard of proof can be expected to be de minimis and should be discounted. The State’s interest in the outcome of the amenability hearing are conflicting. On the one hand the State is dealing with a convicted juvenile. The societal policy preferring freeing the guilty to convicting the innocent which drives the criminal standard is no longer applicable in full force. The stronger societal interest is now self-protection and, frankly, punishment. On the other hand, the State has a continuing interest in attempting to salvage its youth from the sad consequences of their actions. Abandoning the goal of rehabilitation should not be made too easy through the mechanism of a too-low standard of proof. On balance, the Mathews
{64} Breed,
{65} In sum, adopting a clear and convincing standard of proof would provide a welcome guide to the trial bench as they make these difficult decisions. It would also make the process more consistent and predictable for the state and defendants alike.
APPRENDI ISSUES
{66} I am simply not as confident as the majority that the rule of Apprendi is inapplicable to our juvenile sentencing system.
{67} The differences between the juvenile and adult justice systems are not in my view so dramatic or fundamental that Apprendi of necessity cannot be applied. To be sure the juvenile justice system places comparatively more emphasis on rehabilitation than the adult system does. But, the juvenile system has increasingly concerned itself with accountability and protection of the public, narrowing the gap between the two approaches. The gap almost disappears in cases such as this where the offenses are serious and the amenability determination can result in tripling the sentence imposed on the defendant. And, despite the theoretical possibility of imposing a juvenile sentence after a finding of non-amenability, I cannot imagine a situation where a trial judge would find any reason to do so. Whatever the ideal purposes of the amenability hearings may be, the end result is punishment, potentially if not probably, at adult levels.
{68} Despite my reservations about the route taken by the majority, I must agree with the result. As the majority notes, juveniles have no constitutional right to be treated as a child within the juvenile system.
Notes
. The United States Supreme Court also used Mathews in two criminal cases. Ake v. Oklahoma,
. There may be limits to this proposition, but they likely would not arise in situations such as we have here — a conviction of second degree murder committed by a then fourteen year old.