*1 motion to ruling upon defendants’ court, And the trial 129.2. strike, makes no reference section defendants overruled
However, the motion di- appeal were arguments qualification reservation Dramshop our Acts. We have entertained rected to both of appeal accordingly. overruling
Finding part of the trial court no error on the Shirley Roy and Russell we by defendants the motion to strike must affirm.—Affirmed. sitting, except Thornton,
All Justices concur J., taking part. no Stuart, J., Joseph S. Wilson, petitioner, Coughlin, Clifford
William Iowa, Institutions State of Correctional director Anthony Superintendent of State P. Travisino, Paul E. Boys, School for Hon. County Judge, District Hardin
Hellwege, Court, respondents.
No.
December petitioner. Freriehs, Waterloo, for A.
C. General, and Bern- Attorney Bobert Scalise, Lawrence Attorneys General, for Elderkin, Assistant J. and David stein respondents. Wilson, age 16, was J. When William Clifford
Larson, Boys from the School for transferred ordered 218.91, Beformatory provisions of Code under the section Men’s certiorari this court petition for writ of 1966, he filed a *3 a this granted 13 writ to review May 27, we 1966. On June petitioner returned to the request that order denied the but Boys. Training School County was Hardin District Court contends the
Petitioner jurisdiction illegally granting in order and acted Boys to the Training School for transferring him from the care, and section 218.91 Beformatory for Men’s custodial act, to purported Iowa, 1966 under which Code unconstitutional, being in of the due clauses violation i.e., Constitutions, Amendment of both the State and Federal and Constitution, I, sections 9 to the United and Article States equal protection clause Constitution, and of the 10, Iowa We no to Amendment 14 the United States Constitution. find in merit these contentions. justification for the ample
There more than was order. a petitioner From the we learn was determined record duly and was delinquent by County the Polk Court Juvenile Boys After committed to at Eldora. Training Sehool for and, while difficulty considerable with him at custodial the school parole, and on Institutions State Correctional Director superintendent proceedings instituted of the school provisions him trans of section 218.91 of the Code to have Beformatory ferred to at Anamosa. the State Men’s 116(3 appears petitioner’s juvenile history August
It dates back breaking in entering. when he was involved a and placed Boys court him in then Three Town, Nebraska. away weeks later he ran and appre- stole an automobile. When he hended, Omaha, Nebraska, was restrained for some time in the brother, Home, Juvenile later to a married when released again breaking entering. he became involved a His com- Boys mitment to the Iowa School followed on 31, December training placed
At the cottage, school he was first a then security removed the medium unit called the Health Center. behavior, His or misbehavior, caused him to sent during period Center different occasions, five he away ran separate from the times, school three caused among trouble the other inmates. August 1965, after nineteen and a half months at the
school, petitioner paroled parents. parole was to his This revoked and he was returned to school October when he would not attend school and became involved the theft of an automobile and old 11, some coins. On March special granted leave was employment him to find in the Water- loo area. Tins parole “leave” was to terminate if made he satisfactory adjustment employment. at his However, found he employment no and was returned school at twenty days FJdora some later when he was in a involved drunkenness episode, in stealing assisted ears, helped two up cut tops convertible on other automobiles.
Being petitioner’s convinced presence at the school would *4 not be conducive to his welfare or the welfare of in- the other mates school, of the the authorities decided he should be trans- reformatory ferred to the for custodial care and treatment. On day the 12th of May, 1966, application for such transfer granted, and since that time he has been for in cared correctional Apparently institution. change place of of confinement is not to liking his and he asks us find the transfer invalid. 218.91,
Section as now found Iowa, the 1966 Code of May effect on 12, 1966, provides as follows: or the “The board of control director of corrective institu- may training tions order the transfer of inmates of the school boys for custodial men’s care whenever it is that such action will conducive to the wel- determined fare of the of other inmates the school. Such transfer shall be court, by application any effected in writing to the district judge thereof, county training in which the said school Upon granting transfer, situated. of the order of place. attorney county transfer shall county take The said appear support shall application. The cost of paid transfer shall from the funds of school boys. Subsequent section, to a transfer made under this person subject provisions transferred shall be to all the of law regulations transferred, of the institution to which he is purposes for the chapter person 745 such re- shall be garded as having been committed to the institution.”
This section does not violate the fundamental law, federal or state.
I. upon resting alleging provision burden one of the Code heavy unconstitutional is a is a one, for there presumption that all legislative acts Peti are constitutional.
tioner must exactly show to the court which constitutional provisions are infringed upon and in what manner. Cook v.
Hannah, 230 249, Statton, 262; Spurbeck Iowa 297 N.W. 279, 283, Iowa (1960). N.W.2d 660 Cook, power we said: legislation “The un to declare
constitutional great caution, one which courts exercise with only when [Citing such conclusion is unavoidable. eases] And presumption constitutionality especially favor of strong statute, where the us, like the one before was enacted * # promote public purpose,
In Spurbeck, we said: “At the state some outset we well- general principles pertinent established in all considerations questions. constitutional Thus, presumptions indulged all are constitutionality; constitutionality favor of he who attacks prove beyond must invalidity doubt; a reasonable the fact that may hardship unconstitutional; law work does render it if supports reasonable which the statute basis be con- *5 have no concern with the upheld; the courts
eeivecl will be statute, and are not wisdom, justice, policy expediency or of a elements responsible presence or absence of those for the stated over legislature. Act of the These rules have been recently.” again many cases, quite and of them over some mind, these rules well the District Court With County agreed Hardin state authorities that there with the plainly, showing clearly, was no section 218.91 of the Code upon palpably, doubt, infringed and without the fundamental laws, granted state and affirm its federal, this transfer. We action. relating
II. Title XI of the Code 1966 to Social Welfare and Rehabilitation, including chapter 218, provides that manage- board designee control, of control or its shall have the operation State, ment and of certain custodial institutions of the including Boys Training School for and the Men’s Reforma- tory. 218.1, Section Code, 1962-1966. 218.77 218.78 Sections and provide appointment for the and duties of a director of correc- tive institutions board, including penal, under the and Among correctional institutions. his duties he shall “Estab- lish acceptable training and maintain treatment, standards of penal education insti- various state and corrective tutions” and “Develop program corrective institutions juveniles designed patients, to rehabilitate the inmates and program placement institute a parole supervision parolees all of said juveniles.” corrective institutions for Section 218.91, provides supra, training for transfers from the school reformatory.
There is no contention made here that authorities did comply provisions. petitioner with these words, other properly Boys committed to the School for prescribed procedure making was followed in transfer. as a Petitioner, delinquent child, ivas committed to the state placement board of control at a state school n provisions pro- of section 232.34 the Code. Section 232.35 vides: “Commitment to the state board of control shall vest guardianship person of of the child in the so committed jurisdiction.” board shall terminate the court’s *6 crime, charged and or convicted of a not was Petitioner under the of control institution board in a state his confinement discipline and rehabilitation. education, purpose of for custodial, penal not detention 242.2, Petitioner’s Code. Section necessary for his security provisions detention nature, in but boy. If strictly up he cannot to instance, first are, in the to permission given school, the board at the be detained so, he is not facility. By doing him secure transfer to a more no He has prisoner. as a not treated punished and is being him, and must be placed against serve, has no record term to permitted custody. is not parental He a in classified as 246.36. His commit prisoners. Section association with older is not that of a convict. ment or detention or require indictment not
III. Due does delinquent incor a and jury proceeding to commit trial a Bradley, Wissenburg 209 institution. rigible child to a state anno Also see 205, 67 A. L. R. 1075. 813, 816, 229 N.W. Iowa This decision page L. commencing tations on 1082 of A. R. we jurisdiction, for
apparently proposition settled that pronouncement find no later on it. point out a pages 816 and 817 we Wissenburg being is not of control custody of the board
committed to the sense, a is, a action punished crime. “The tried or for state, by statute, wherein special proceeding provided jurisdiction patriae, takes authority parens its as virtue of punishment, jail for it, to incorrigible and commits not child, training. That care, education, reformatory, for its but a by jury, a trial proceeding, a and such such statute state constitutional Federal or the not violate either the does such further stated repeatedly held.” has We provisions, custody not criminal are relating confinement and statutes calcu punishment, but are penal. “They not intended as a are They are becoming a criminal.” child from lated to save the hu progressive generally as by characterized courts proposition. We Many for this cases are cited manitarian. nature, being its criminal “The statute
concluded there: punishment, and the commitment designed nor # * * reformation, the child and for its education benefit of not, in case, require does process of law clause the due many many jurisdictions) (Citing cases jury trial.” simply its Here, proceeding, in a the State assumed civil petitioner, and personal his guardian undertook function custody and care. , early
In an Industrial School case of Wisconsin v. Clark 664, 426, 422, Wis. 79 N.W. the Wisconsin County, power place proper guard- court stated: children “The exercising judges ianship has been exercised chancellors and powers chancery from time immemorial.” must, petitioner’s therefore, It concluded commitment perfectly state board control care treatment was legal, position it in nature, criminal in left *7 parent. permitted his board, such, Section 218.91 as an incorrigible transfer for own child his hasty protection, guard against any benefit and order to arbitrary approval or requiring action of the district court be- completed. fore the transfer was making presumed In transfer, per- the board is to be duty a forming imposed upon it, restraint, that of education liberty reformation. It is restraining the natural child, is placing but him under a restraint, natural a restraint practicable so is by far as parent. as should be exercised words, severity other governed the restraint entirely the actions resisting parental authority. of the child It is not like the unnatural restraint one of a convicted crime where punishment. only restraint Bather long it is so child needs a firm restraining hand, may anytime end the child shows a willingness to behave.
Here we are told every way the state board has tried other proper parental to exercise authority, appreciable with no effect. place There was no other of custodial care where he could receive proper education, care, and training. rehabilitative we While place feel restraint generally occupied by used and quite proper convicted felons is for a child of 16 years, yet this policy seems be a question legislature, not the courts. Perhaps facility an intermediate should provided, but that is problem not our here. There is prohibition no constitutional
1171
known to us which
persons
bans association between
convicted of
crimes and others, even children. We have been cited no recent
legal authority which holds an
usually housing
institution
crimi-
nals is an improper institution for the restraint of a minor de-
linquent, or
that due
violated
his care and reten-
tion
such an institution.
hand,
On the other
state
several
many
cases and
Federal
opposite
decisions seem to reach the
Long
conclusion. See
Langlois,
23,
v.
93 R.
618
I.
170 A.2d
;
(1961) In Darnell,
re
173
335,
(1962);
Ohio St.
F. (D. 667 1959) ; C. F. McCoy, United States v. 150 Supp. (M. 1957); D. Pa. Wilkinson, Suarez v.
Supp. (M. 1955). D. Pa. In each case the contention was made that permitted the statute child, previously which a minor committed to a delinquent, school as a transferred to a reformatory confining trial, felons indictment was a violation of Amendments 6 and 14 to the United States Constitution or process. relating State Constitution due In every instance rejected. the contention was
In Long Langlois, supra, plaintiff applied where writ of corpus habeas after transferred to the state re- formatory from Boys, rejected School for the court application place and ruled the of confinement of the child was not in violation of the Federal or State constitution. The Rhode Island transfer statute was much like our own. The court *8 there said page at 27 of 93 I., page R. 620 of 170 A.2d: “This statute, far from defeating purpose juvenile the of the court which is to reform brought it, minors designed before is to aid by giving right the to the assistant director of social welfare to transfer from the who, by school actions, failing those their are * * to reform and hurting are the rest of the school *. After boy commitment to is, sense, the school a in a on his own and his conduct degree must to a If determine where he shall remain. boy by
removal of a reason of upon his conduct is determined as a means of saving him or the rest of the school both,
determination, harmony purposes with the appear to be in would court.” the largely up and treatment is
Thus, place of his detention the those who have delinquent boy, and the association with denying is for the of a crime not a valid reason been convicted fact, such place a him. State to restrain rehabilitate permitted in associations under conditions are section certain may in provided 242.6 it that the court Code, of the where is felony certain a minor convicted of a to instances commit may We boys, the ease be. girls, school for or for as peti- conclude, then, determinative the association rights. tioner’s It is rather the facilities of institution provide opportunity to restraint, training, education showing here that that must There is no rehabilitate control. provided. such facilities were not considering provi-
In the federal cited cases the court Attorney sion of the authorizes the United States Code which institution to General to order inmate transferred from one authority provides: another. Section 4082 of Title 18 “The upon Attorney conferred shall extend General this section persons all School committed to the National Boys,” Code, 5034, provides: and 18 “If the court U. S. section may proba- finds a delinquent, place to be a him period exceeding tion him to minority, his or commit custody period.” Attorney General for like court, Wilkinson, supra, Supp. 38, Suarez v. turning petitioner’s application of habeas down writ corpus, provide flexibility possible, said: “In order to as much pro- correctional and ‘training institutions schools’ have been Custody juveniles thereby. vided for those who benefit an parole essential feature those cases where is not feasible custody, juvenile’s and the nature of such reac- line with the thereto, necessarily must of those in tion be left to the discretion problem charge rehabilitation.” unnecessary decisions it would seem for the Under these legislature require approval district court for a transfer of incorrigible problem reformatory, for it is the board’s boy of how where the is to be confined and treated for *9 proper However, as noted, legisla- rehabilitation. we have safeguarded juvenile’s rights by ture court review of the cir- necessary making cumstances the transfer. think We he cannot complain this requirement, unlikely and it seems a court deny would of transfer if jus- order the circumstances would tify legal it. We do not consider the here, court’s discretion but find ordering the court made no mistake in this transfer.
IY. Petitioner further contends there is a conflict be chapter tween section Code, provides 218.91 and 687 of the which person that felony may punished impris by convicted of a be penitentiary onment in reformatory. or do men’s Nowhere we find in chapter any provision only this which states that con victed felons for refor restrained eared at the men’s matory. provision, absence of we find no con reformatory simply flict here. The men’s in a custodial purpose stitution under of control, the board its use for that has felons, contrary appears. been restricted fact the There is no merit this contention. Finally, petitioner
V. argues one’ re that because strained at obey the men’s required the rules regulations subject pros institution, is made escape ecution it, provided from as chapter him Code, prisoner subjects somehow makes him a punishment increased without due of law. The short is, petitioner answer to this course, contention is not a prisoner being punished and is not under such when detained paternal custody. His delinquent changed status as a mere is not parole this transfer and is still at eligible he or release anytime his conduct that he no convinces the directors board longer control, beyond needs that and under no circumstances birthday. his 21st
Perhaps penalty escape from the men’s reforma tory greater Boys, than from the School for but boy away is a from the there marked distinction. runs When training school, judicial hearing may punished he petitioner occa Indeed, the school authorities. on several summarily punished has for rule infractions and has sions been security In the confined or Health Center therefor. *10 punished reformatory, escape, before he is he is entitled in Furthermore, trial the district court. as an inmate of either always institution, subject prosecution he has been to criminal any certainly charged crime committed and could be with escape any when arrested for one of them. At rate we fail in- petitioner prosecution escape is an subjecting see how punishment all until he punishment, crease for it is not at escape against himself has added the crime of to his defections society and has tried and been convicted of offense. sustaining writ, Having
YI. found no basis for same must annulled and the order of transfer sustained.— be Writ annulled. J., JJ., C. Moore and con-
Garfield, Stuart, Snell, cur. JJ., dissent.
Becker, Mason Rawlings, J., Thornton, sitting. gravity question I dissent. The involved
Becker, J. requires that disagreement reasons for recorded. be Perhaps way
I. quotation the best to start would with a be from a very problem Federal Court faced with a similar United Hegstrom, Supp. 17, States ex 18: rel. Stinnett v. disciplinary problems youths
“The arising these com- when juveniles mitted proved incorrigible con- have led to their penal finement by correctional institution order of the Attorney abrupt General. This transition from ward prisoner popu- of the United general States to a member of the points up lation present system. a weakness in has There any been no criminal process requires trial of these eases. Due youthful that a criminal either tried and as such at sentenced outset, open course which is in the ease of those considered hoodlums or hardened if criminals, original an decision invoke proceedings rather than made, criminal proves process misconduct, ill-advised reason of later due requires right some of trial ne- for the later misconduct which provision cessitates treatment as a criminal. No has made for either trial in instant cases.
“The Fifth Amendment to the Constitution of the United provides person States that no shall deprived liberty with- out due of law, the Sixth Amendment, that in all crimi- prosecutions nal enjoy shall right accused speedy to a public trial, impartial jury the State district wherein crime shall have been committed and to be informed of the nature and cause the accusation; to be confronted with against him; the witnesses compulsory process to have for ob- taining favor, witnesses his and to have the assistance for his counsel defense.”
The record affirmatively here shows boy, that neither this nor the other two with him, transferred had of the consti- *11 safeguards by tutional mentioned the juve- Federal Court. Our nile courts in they determine the first instance whether will as- jurisdiction sume or let matter take a normal adult criminal procedure. Code, 1966, Iowa sections 232.3 and 232.62. constitutionality
II. Code, The of section 1966, 218.91, is challenged. quoted majority The section is in verbatim opinion and repeated will not pro- here. Some of the salient visions, and omissions, first will be noted. provides
The statute Board that the of or the Direc- Control may tor of Corrective Institutions order of in- the transfer Boys mate of the for School from that school to the Reformatory Application to Men’s at Anamosa. do so must be county attorney county made the court. the said “The of appear support school shall [where located] application.” may order of such transfer be made when- ever it is such action determined that will conducive welfare of the other inmates of the school. of the indi- Welfare vidual concerned is not mentioned. provide inmate,
The statute does not
for
or to
notice to
anyone
provide
hearing. Although
It
it
else.
does not
for a
by
provides
represented
county
at-
shall be
state
torney,
provide
Notice,
it does
for
inmate.
counsel for the
provided
it would
hearing all
here
seem
counsel were
but
constitutionally impermis-
that these omissions in
statute are
statute rises or falls not on what has
sible. We have said that a
authority
by
by
by
done
its
but
what
be done
its
been
authority..
Liddle,
I. & P.
253 Iowa
Chicago, R.
R. Co. v.
ap-
402,
judicial
is quite
“The special sense, a a is, in proceeding for crime. The action state, virtue proceeding provided by statute, wherein incor- parens patriae, jurisdiction of the authority its takes hut to rigible punishment, it, jail and commits child, not to training. reformatory, care, education, That its statute, by jury, does trial proceeding, and .such-a .provi- constitutional violate either.the Federal the state sions, repeatedly added.) (Emphasis has held.” Wissenburg holding
The reasons for such
are examined
*12
from other courts:
quotations
“
provide the
object
only
such laws
..
'The whole and
of
child,
state
the
save him to
such as will
with an environment
him
give
citizen, and to
society
law-abiding
and
as a useful
attain, that end.’
requirements necessary
the educational
Brown,
(88
609).
Mill
31
473
Pac.
v.
Utah
* *
.
qv^g
being
nature,
nor
.statute
criminal
its
designed
punishment,
for
and the commitment
the
for
ben-
efit of the
reformation,
child
for its education and
an
institution,
school or similar
industrial
the due
law of
not,
case,
require
jury
clause does
such a
trial. State v.
Scholl,
(167
830);
for
167 Wis.
N.W.
Wisconsin Ind. Sch.
Girls v.
County,
(79
Clark
It is enlightened reasoning caused the Federal Court to Wissenburg cite the Reid, case in White Supp. 649, at authority as following the statement: having
“Petitioner been committed under Juvenile Court proceedings, applied pres- the test to be whether the state is ently exercising par- a reasonable restraint as in loco guardian entis, or petitioner whether is being punishment as confined an upholding offense. In Constitutionality juvenile the of court acts, emphasized only proceedings Courts have that the noncriminal, are but also that the institution to the delin- which quent penal is committed is not of a character.”
Our authorizing Reformatory statute transfer to the Men’s provides: also “Subsequent to a transfer made under this sec- person tion, the subject provisions transferred shall to all of regulations law and of the institution he is trans- to which ferred, purposes chapter person 745 such shall regarded having been committed to the institution.” juvenile could,
No one would contend court present law, juvenile our find a him delinquent to be and commit Reformatory to the Anamosa offering opportunity jury for a trial. State, Can the in the of administrative name efficiency indirectly, cannot, do what it in the name of law en- directly forcement, appear do ? It that this is not would statute parens patriae within spirit that makes the custo- provisions dial constitutional. juvenile custody has been assumed State in an spirit
enlightened helpfulness. The State does not seek to punish train, him but to educate rehabilitate him. This is the basis of his in training incarceration school without benefit jury of a trial. This the basis for the court’s action without benefit of informality defense counsel. This is the basis and confidentiality proceedings. of much court’s
But admittedly here the State has failed. No matter that boy’s the failure was the fault —or the State’s. Failure there is. parent admitting simply What other pack failure can child *13 safeguards penal constitutional off a institution without ? years until the is 21 old child completely boy is is treated that how the observation boy If is
up presented. here boy begs questions to the responsi- shouldering capability of that considered have boy, as an as a he must be treated bility he treated cannot be is meeting challenge a capable he adult. That is training very special treatment, his reason —not penalty theory system. of the entire — attorney petitioner insists that before Through his this IY. he must Reformatory Anamosa, at placed in the he be Men’s can only punish- must accorded not be as a man. He be treated safeguards of man. It a a man but the ment of constitutional juve- to him and to all other this do a said that will disservice proce- criminal more tend use for the courts will often niles against juveniles aggravated cases. dures a good showing that this would First, there is no juve- require that all does not development. The law wing. circumstances, taken under its niles, all so the State if a minor’s activities are bad Second, be treated minor, handle him as a he should facilities cannot an adult. to be as an happens he is entitled
But when treated his only in character of incarceration but adult not judicial process that results his incarceration. change occasioned transfer from
Y. The treatment change degree, a is not school to defendant in kind. shows that State change The record applica- quite clearly. Attached recognize this officials authority reports signed Darrell tion for to transfer are two Lloyd L. and Dr. Weigert, E. Section Director Observation Spencer, Psychiatric Consultant. Weigert
Mr. concluded: about 110 hours reviewing “In Clifford’s file it reveals that counseling has with this been conducted group individual gained many particular boy. It that Cliff has evident from and will strengths experiences he has benefited probably lose, but in view of the recent involvement never *14 adjustment Special and minimal School Leave possible program I feel that he should be considered for transfer Reformatory to the Men’s at Anamosa.” Spencer
Dr. concluded: boy history 16-year-old “This is a with a chronic of delin- experience apparent inability profit from or quency and an to possible Although it is group counseling. or from individual this program could worked out which would benefit that be boy, program and facilities have not been able our current really maximum accomplish I that he has obtained this. feel existing program. from our benefit * * “* I institutionalized because of feel that Cliff be time. He has exhibited ex- anti-social activities for some modifying I do pressed his current behavior. little desire necessary possesses ego strength him that feci Clifford adjustment penal adult institution with- to make an in an life (Emphasis added.) out undue difficulties.” attitude
Faced with such stark evidence State’s juvenile “is that this purpose, this court should not conclude prisoner.” The being punished and is not treated as a boy If this psychiatrist far opinion of the more realistic. strength” “ego prisoner, as a he will not need
will not treated be doctor penal But the adjust life an adult institution. will different implicitly recognizes new custodial care be that the in kind. So should we. permitted asso- that inmate not be
The statement will Code, prisoners predicated 246.36, ciation with older on section shall, so far as prisoners. 1966: “Classification of The wardens years age from prevent prisoners eighteen practicable, under presume prisoners.” from associating with other We should has equivocal at Anamosa been such an section the warden in- juvenile provided budget to handle with the facilities matter, separately. Though on the the record is silent mates contrary. attorneys argument indicated the oral rec- statutes, or if the factual VI. If other sections our equipped here, at Anamosa was ord showed n juvenile within and education of this to continue the treatment (albeit, spirit and the of our statutes letter far circumstances), more restrictive this dissent would not be filed. But not so the record does show. Nor should the burden to show lack of facilities be on the State has the inmate. The knowledge and give picture. the evidence to true It should required if proposed to do so its action is See to be allowed. Reid, Supp. White v. page 647 at 650: “It is proceed- that in true both court and criminal ings person may deprived liberty. true of his It is likewise penal increasing the modern administration of institutions emphasis wisely placed upon has rehabilitation *15 training prisoners of program as essential elements a prevention crime and correction. Therefore of features some the penal of institutions industrial educational, resemble those of and training juvenile delinquents. schools for func- basic purpose penal tion and institutions, however, punishment of is as a deterrent to crime. However the different methods broad of discipline, appropriate care and that for indi- treatment are prisoners condition, vidual according age, character, mental and like, the there is legal practical a difference fundamental purpose technique. Unless the institution is one whose primary physical is concern the individual’s moral and well- being, adapted unless its facilities are intended for and guidance, care, punishment, education and than rather supervision unless its is guardian, prison that a of guard jailor, or it seems clear a commitment to such institution by is reason of conviction of crime and cannot withstand an assault for safeguards.” violation of fundamental Constitutional majority’s
VII. The reference to federal cases on this subject juvenile overlooks the salient difference between our law By federal statutes. the the terms of Federal Juvenile Delinquency (which Act is not the same as the Juvenile Court Reid, Act the Columbia, District of see v. White F. Supp. 867, 870) affirmatively minor the must consent to come under that approval act. This has been the basis for of transfer juveniles to federal in cases similar to the case at hand. reasoning rejected by But even this has been some Courts, Federal- causing split authority thus on how far Attorney the General go United States can field. “* * * the federal act it has argued Under that the due are requirements of met the crime, accusation of jury trial, finding waiver of indictment and the the of delin- general quency, and custody commitment to the of the Attor- ney General, inception for here the case has its aas criminal proceeding, safeguards usual procedure of criminal are voluntarily available to the and are waived with knowl- edge Attorney designate place General type of correctional institution for confinement. The later trans- fer from another, one institution to is said, may well be con- punishment sidered treatment for the first offense. The dif- ficulty argument with that pur- that the waiver pose of a proceeding, not criminal in A nature. later change opportunity reconverting heard, it into process.” criminal proceeding, lacking in due States United ex rel. Hegstrom, v. supra, Stinnett Supp. 178 F.
See also Markley, Supp. 586, Arkadiele v. 186 F. where split of authority recognized analyze with real no effort to problem.
Little can Stone, comfort taken from Trimble Supp. 483, majority. cited case That involved avail- ability of bail under the Juvenile Act of District of Court In passing Judge Columbia. on the matter Holtzoff observed *16 page at 486:
“A proceeding in dep- in the Juvenile Court terminate liberty period rivation of minority, in of the child’s years. this case as as six urged much It is that a commitment by the Court Training Boys, Juvenile to the National School is in boys, pun- which effect a reform school for does not involve merely ishment treatment, person eighteen, but while if over jurisdiction or a by over whom is waived the Juvenile Court, is committed to a penitentiary, or a punishment is action and not This is treatment. distinction realistic. say boy To that a who is sent to a or school by paternalistic reform spirit, school the Government in a punished, person while a is who committed to a re- formatory penitentiary there punishment, does not bear aspect reality. of All on in- consequent incarceration
1182 deterrence, punishment, and treat- law combines
fraction degrees. In instances varying in some ment for rehabilitation every in greater others, than on element is but emphasis on one present to extent.” case some each pro- purpose of page 488, “It was the beneficent And at creating ameliorate some legislation courts to gressive formality of the criminal law eases rigidity objective juvenile. is a to introduce The which the accused informality juve- dealing humanity, and with leniency, more rights end was to new ultimate confer nile offenders. they beyond had juvenile offenders those to which privileges on previously pos- as to those entitled, as well addition It is that it was the sessed adult offenders. inconceivable juveniles rights they have had deprive would intention to they if treated the same basis adult defendants.” were Reid, subject of a above, v. noted was the second
White opinion Supp. at 126 In that case court found F. page 871: at concluded Court, Constitution accordingly,
“The concludes both youth the transfer of committed statute forbid designed Act institution for the cus- Court Juvenile tody persons crime, including the Federal Cor- convicted of Ashland, rectional Institution at and the commin- Kentucky, gling juveniles of such criminals.” with Supp. ex F. Hegstrom, United States rel. Stinnett v. 178 17, supra, page the court at that in neither Suarez v. *17 right This to trial. be violative of the constitutional would right and to the due the Fifth Amendment process to or all of fair trial of the Sixth Amendment. Some guaranties They admittedly disciplinary problems. are petitioners are of and juveniles as and not been tried custody have in however they placed in cus- were committed before crime sentenced committed, in while juveniles, or for offense since tody as juveniles custody. They only with other must confined such charged and convicted of crime.” with until unless constitu- regard to the need for constant reminder of per- authoritative, the most tional. issues matters the Supreme the Court of haps word comes from latest, the speaking: Fortas States, Mr. Justice United pur- original can be doubt of the laudable
“While there no years juvenile courts, critiques pose studies recent of performance meas- questions as to whether actual raise serious against purpose to make tolerable enough well theoretical ures of immunity the from the reach constitutional of the that to is much evidence applicable adults. There guaranties Columbia, of of juvenile courts, including that the District some adequate- personnel, techniques perform facilities and lack patriae parens capacity, in a ly representatives of State respect charged with law violation. with children at least evidence, fact, grounds there for concern There gets worst of worlds: that he that the child receives the both protections care to adults nor the solicitous neither accorded postulated Kent v. regenerative treatment for children-.” 555, page 1054, at 541, 383 U. S. S. Ct. 1045 States, United Ed.2d L. balance, weight author-
On would seem that federal ity against the result that we reach here.
VIII. of this has not confined Consideration matter to the courts: only fair illogical blatantly
“It is not but inconsistent with argue, safeguards on one hand, treatment Hie child unnecessary are cases procedure criminal noncriminal then, hand, apply other criminal sanctions youngster pro only practices deny Not do these cases. proceedings, they of criminal but also undermine tection Delinquent court movement.” philosophy the whole *18 Dept. Institutions, p. Health, U. S. of Children Penal Welfare, Bureau, & Publ. No. 415-1964. Education Children’s n by Judge Judge Gardner, See also the article Robert of Superior (Orange County, Cal.), in Bar Court American (October 1966), page Association Journal significant IX. It is that the trial it court felt that had was, fact, just in this matter. it no discretion That “rubber Assuming stamp”. that the statute is constitutional, the trial probably right court because the decision under the statute turns on institutional internal administrative needs. strength presumption validity
The of the of the of the acts government right on necessity of the and the based protect operate effectively. State to itself and to But the safe- guards prohibiting constitutional sections certain acts against recognition individuals are based on the that the'State go far in own ignore cannot too its behalf. It cannot the in- by rights people constitutionally pro- dividual declared to be does so, operation tected. When State of its government, duty it is branches our interfere behalf of the individual. boy may
This well deserve to be in an incarcerated adult penal institution,- put or, differently, the interest of the State well demand such treatment. If that be true the can, charge and I must, State believe him with one or'more of obliquely the crimes referred to in the report school’s and noted majority. final decision must then regu- await the judicial lar process. outcome of that only process That is the that can be termed due in this situation.
I would declare section 218.91 Code of 1966 unconstitu- grant tional, writ, and remand the ease to the district court disposition. for constitutional JJ., join
Mason in this dissent. Rawlings, notes Supp. McCoy, Wilkinson, 133 F. nor United States upon by Supp. (relied majority), were the constitu- surrounding problem In that tional issues raised. case the court concludes: Attorney Congress given “The discretion General designate.the institution and to transfer the National Train- from only Boys ing School for deemed can to an proper, when custody for the care facilities juveniles, institution with comparable To degree some to the National School. permit hold otherwise would be to confinement for crime