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PROSECUTION IN This microfiche was produced from documents received for inclusion in the NCJRS data base. Since NCJRS cannot exercise THE JUVENILE COURTS: control over the physical condition of the documents submitted, the individual frame quality will vary. The resolution chart on GUIDELINES FOR THE FUTURE this frame may be used to evaluate the document quality. By '1 M. MARVIN FINKELSTEIN, Project Director

2 8 2 5 ELLYN WEISS I .0 ~~ 11111 . 11111 . 3 2 U£&liM 11111 . I 22• STUART COHEN B~ ~[i[~ Jl,; tu~!~ I~ PROFESSOR STANLEY Z. FISHER, Consultant 1.1 ""u -- -- 111111.8

111111.25 111111.4 111111.6

This project was supported by Grant No. 71-109-6, awarded by the National Institute of Law Enforcement and Criminal Justice, Law Enforcement Assistance Administration, U.S. Department of Justice under the Omnibus Crime Control and Safe Streets Act of 1968, as MICROCOPY RESOLUTION TEST CHART amended. Points of view or opinions stated in this document are NATIONAL BUREAU OF STANOARDS-J963-A those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice. , '

Microfilming procedures used to create this fiche comply with the standards set forth in 41CFR 101·11.504

Points of view or c~inions stated in this document an December 1973 those of the author[s! and do not represent the official position or policies of the U.S. Department of Justice.

I ' U.S. DEPARTMENT OF JUSTICE U.S. DEPARTMENT OF JUSTICE ! . . ·t ',':>.1 LAW ENfORCEMENT ASSISTANCE ADMINISTRATION Law Enforcement Assistance Administration

1 NATIONAL CRIMINAL JUSTICE REFERENCE SERVICE '. National Instttute of Law Enforcement and Criminal Justice WASHINGTON, D.C. 20531 6/29/76 ," ., :-~ i LAW ENFORCEMENT ASSISTANCE ADMINISTRATION FOREWORD Donald E. Sllntorlllll, Admiflistfl/(or Richard W. Voldo, OO/Jllty Arllllillistflltor Charles R. Work, Oll/lllty Admillistmlor The juvenile justice system in the United Scates is in the process of trans· formation. Recent court decisions have impacted strongly on many traditional methods for processing juvenile cases at tbe variolls levels of the judicial system. The winds of chtll1ge have been particularly strong in the area of procedural safeguards and the juvenile's right to legal counseL Largely overlooked in the NATIONAL INSTITUTE OF LAW ENFORCEMENT rethinking of juvenile justice, however, is the role of the juvenile proseclltot'. AND CRIMINAL JUSTICE And yet the prosecut'Or bears a double responsibility: protecting soci(~ty against criminal behavior while at the same time preserving the juvenile's rights. Gerald M. Caplan, Director This study analyzes the functions of the prosecutor in the juvenile system. The researchers examined in detail the existing prosecution system in the Boston Jllvenile Court and surveyed procedures in a number of othel' cides. Their fincl· ings show a wide disparity in practice and, the authors believe, in the quality of justice dispensed. In Boston, for example, the arresting police officer is solely responsible for presenting evidence. Equipped with only Stich Jegal training as his law e~lforce­ ment career may have given him, he frequently must c:;onfront either a publk defender or a private attorney. In SliGh cases, the report notes, the odds would appear to be weighted against the law enfol'cement interests of the community. To develop a judicial framework which serves both the rights of tbe accused juvenile and the safety of the community, the study recommends that juvenile courts adopt a modified version of the prosecuror-defender structure which has long served the adult criminal justice system. Included in this report arc guide­ lines for such a juvenile prosecution system. LEAA publishes this report in the belief tbat the issues it raises can contribute to current efforts to develop a fair, effective system of juvenile justice.

CHARLES R. WORK Detmty Aclminstr(ttor for Administration L(ttl, Enforcement

For sale by the Superintendent of Documents. U.S. Government Printing Office Assist(tnce Administration Washington. D.C. 20402 • Price $1.60 Srock Number 2700-00246

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ACKNOWLEDGEMENTS CONTENTS

\V:;C HJ'C gmlc;[ul to the mnnyindivIduuls whose Hssistnl1ce we I.·c(.'cived in the PIIIIIl l*~piH'atiOl1 ol this report, Hnd arc pleased to nd<:oowlcdge their (;oncribuciolls FOREWORD iii Hl1d co expl'ess O\H' Hpprcdntion. \'V/c nrc vc:ry thnnkful to Pt'csiding ]ustic:<: Fmnc:is POiCI'Hst find Chief Clerk ACKNOWLEDOHMENTS iv Jo111' Louden of the Dostoll Juvenilc COlH't without whose coopcmtion :lnd assistnncc 1l1ll<:h of the J:escl\n:h could not have been (.'OOdUl'wd. We also wish SUMMARY yiii to thank Chief Probation omcer Louis Mtlglio) Liclltt:nnm John R. Chisholm CHAPTER 1. INT.RODUCfJON. of the Juvenile Aid Sc~'tion of the Boston Policc l)cplutment, and the Vfu:ious juvenile o(}iccrs and Stan: membcl's of the Massachusetts :DefendcJ's Committee CHAPTER II. THE DEVULOPMIlNT OF THE JlJVENILE COURT who gave so had}' of their time. SYSTllM IN THE UNlTED STA'fnS . 1/ l.ouis \Xr, ~~kHnt:dy, Exut'utivc Director of the Nntiol11l1 Council of Juvenile.: A. Endy Development . It COUt:t Judges, wns gl'rtclOllS enough to provide It covel' [ertel' Eor the qllcstion. D. Challenge and Reform (, nnires. whkh we fOl'WHl'dcd to juvenile court jl1dges throughout the United Stntcs. . CHAPTER HI. 'rBl~ FROSEC(JTOR'S ROLE IN 'floW JUVIiNIU1 \Xfc al'e espcdnlly £l'awful to Pmfcssol' Sheldon Kmntz, Director of the COUR1': FORMER STATUS AND CORRENT TRENDS. 9 Cemet· fOt: Cdminnl Justku, fot' his vCI'y vnll1nblc contributions of o1'iHinal A, The Pmsecurot's Role Historically. 9 rnatcdnl nnd his extensive nssistnnce in nil sections of the report. n. Tbe Potential Impnct of G'(lIItt on tbe Pmsec:utor's Role. 10 \V[C I\lso w.ish to acknowledge the important research elIorts of Con tel' stnff 1. Re«)gnition of the need for legally tmincd state repre- members Jonathan Brnnt, Snu! Schupiro. Susnn SHbey and the nssismnce pro­ sentatives . 10 vided by Jeffrey D. \Xroolf in many phases of out: work. 2 . .Impact of no prpsecutor upOn pt:Obaeion officer and Finall)', n word of t1~nnks is due to Boston Unversiey lnw students I.awrence judicial roles . 1 J 3. Trends in proposed and recent legislation . 12 Gustafson, :Mkhnel WI. 1vJarean l Julie G. Smith, and Paul Onkka for their rcsearch assistance nne! to Susan Leavy who typed the [mal manuscript. 4. Cmrcnt utilization of prosecLltors in juvenile courts 11/. C. The Center's 1972 National Survey . . . . 1A 1. Defense counsel involvement in juvenile l_roceedings 15 2. Scope and nature of attorney~proseclltion . . 1(, 3. The division of court functions and the prosecutor's role. ] 8 a. The initial detention decision. . . . . 18 b. Preparation and review of the petition . 19 c. Pretrial motions, probable cause hearings, and consent decrees . 19 d. Adjudication and disposition . . . . . 19 4. The views of juvenile court judges towards an expanded role for the prosecutor ...... 20 5. Narrative comments of judges responding to survey .' 23 6, Summary of National Survey...... 25 a. Defense counsel involvement in juvenile proceedings. 25 iv v P(lglJ Pago b. Attorney representation of the State. . . 25 1. Police enforcement and investigation. 90 91 c. Judges' views of the expanded use of attorney-prosecu- 2. Pretrial detention...... 91 tOrs in juvenile court. 25 3. Court intake . . . 4. Diversion of cases before adjudication 94 CHAPTER IV. THE IDENTIFICATION OF PRELIMINARY OB· 5. Preparation of cases for trial . . . 94 JECTIVES FOR PROSECUTION IN THE JUVENILE COURTS . 27 6. Pretrial motions and discovery. 95 7. Presentation of State's case at trial . 95 CHAPTER V. PROSECUTION IN THE BOSTON JUVENILE 8. Disposition. . . . 96 COURT . 30 9. Appeals and collateral attack . 96 A. History of the Boston Juvenile Court. 30 10. Proceedings at the correction stage 96 B. Boston Juvenile Court Procedures. 33 11. Personnel and training. 97 J urlsdiction 1. 33 12. Relationship with other agencies. 99, 2. Initiation of juvenile delinquency cases. 34 101 3. Notice and detention. . 34 APPENDIX A . . . . 4. Bail. . 34 102 5. Arraignment anel issuance of process. 35 APPENDIX B 6. Adjudicatory hearing-confidentiality 36 106 7. Patties present 36 APPENDIX C 8. Conduct of the hearing. . 36 9. Adjudication and disposition 37 10. Waiver to criminal court . 37 11. Appeals 38 C. Caseload in the Boston Juvenile Court: 1962-1971 . 39 D. Introduction and Methodology. 39 E. Public Defender Services in the Boston Juvenile Court (Over- 0~) ® F. Polke Prosecutor Services in the Boston Juvenile Court (Overview) . 42 G. Pre-adjudication 43 H. Adjudication 51 1. Post-adjudication 62

CHAPTER VI. PROSECUTION IN OTHER REPRESENTATIVE COURTS. . ... 69 A. The Fulton County Juvenile Court, Atlanta, Georgia . 69 B. The Second District Juvenile Court, Salt Lake City) Utah 71 C. The King Cql1uty Jl1v;::uile Court, Seattle, Washington 71 D. The Rhode Island Family Court, Providence. . 74 E. Metropolis ...... 79 F. Connecticut Juvenile Court, Third District, Hartford 85

CHAPTER VII. PROSECUTION GUIDELINES FOR BOSTON JUVENILE COURT . , .... 89 A. General Principles for Juvenile Prosecution 89 B. Specific Guidelines 90 vii vi I " .. I .'

tion which conclude the report. It is hoped that III. these guidelines will have useful application to The traditional juvenile court process did not juvenile courts throughout the country as they include a "prosecutor" in the sense of a legally seek to formulate new directions for juvenile trained person with responsibility to represent the prosecution. state in court proceedings. For several reasons, the SUMMARY inclusion of such a role would not only have been II. seen as unnecessary, but as positively harmful to In spmt, the juvenile court was designed to the proper functioning of the court. Juvenile court I. three jurisdictions and a survey of juvenile court function as a "non-legal" social agency, providing proceedings were designed to diagnose and treat judges in the one hundred largest cities in the needed care to endangered children, and resorting the problems of children appearing before the With the Supreme Court decisions in Gattlt and country was conducted. to coercion only as necessary to serve the best court. The proceeding was conceived to be one other recent cases, there has been a perceptible Throughout the course of our work, we were interests of the child. Hearings were to be con­ instituted "on behalf" of the child, rather than trend away from the very informal, paternalistic guided by certain preliminary assumptions which, ducted informally and in private, legal "techni­ against him. In this proceeding the state was repre­ models of the past in favor of greater formality in in turn, were tested throughout the project and calities" were to be put aside, and records were to sented by the judge, who had the dual role of the adjudicative process. Although the future shape which now follow. As an advocate of the state's be kept confidential. Because the judge and pro­ deciding whether the court had jurisdiction over of the juvenile justice system remains in flux, interests, the juvenile court prosecutor must balance bation staff were to act as "parens patriae/, in the the child and, if so, of prescribing that disposition recently-imposed requirements have already creat":0 considerations of community protection with an child's best interest, claims that the child needed which would best further the state's interest, as serious stresses in the administration of juvenile equal duty to promote the best interests of juve­ representation by counselor other protection of parens patrirle, in promoting the child's welfare. justice, and have raised many new questions con­ niles. His responsibilities to prepare and present his "rights" were viewed as misconceived. The Proceedings "on behalf of the child" could often cerning the future of juvenile justice in the United the state's case must be tempered by his role as court's process was to be paternalistic rather than be instituted by "any reputable person," but it States. parens patriae and by a commitment to the child adversary, The function of the proceedings was to generally feU to the probation officer to investigate Within this dev·:;loping controversy, the matter welfare concerns of the juvenile court. Accordingly, diagnose the child's condition and the prescribe and actually prosecute the petition in court. of juvenile prosecution assumes new importance. the prosecutor must assume a major role in pro­ for his needs-not to judge his acts and decide his The participation of a state prosecutor would Virtually ignored in the literature, the juvenile tecting the legal rights of juveniles by proceeding rights. have implied the existence of some particular state prosecutor has, in the past, occupied a status of little only on legally sufficient petitions or complaints, However, the essential thrust of the recommen- interest which required advocacy, an interest dis­ consequence. However, with the growth of defense by insisting that police field practices are consistent . ~ations of the President's Task Force on J uyenile tinct by definition from those of both the child counsel participation in juvenile court proceedings with legal requirements, and by encouraging fair Delinquency and the Supreme Court's decision in and the judge (court). But such a conception was and the increasing number of legal issues which are and lawful procedures in the court. Similarly, he Gattit was that greater procedural formality in considered contrary to the traditionally prevailing now being raised at all stages of the process, the should participate in efforts to adjust and divert all juvenile courts was needed in order to safeguard notion that only one interest-the child's-was at effects of inadequate prosecutorial services take on appropriate cases prior to adjudication and to strive the constitutional rights of juveniles. Develop­ stake in juvenile court proceedings. significant new dimensions. Certainly, whatever to obtain the least restrictive alternatives which Aside from the impact of defense counsel in the future course of juvenile law, the role of ments which have taken place since 1967 have, may be warranted for those juveniles who are juvenile delinquency cases, according to the post­ prosecution will, of necessity, have to be rethought. for the most part, continued this trend. referred to the court. While the establishment of Gattlt, "due process" view of the juvenile court, it Accordingly, our effort was directed toward a However, for juvenile courts to survive as dis­ a balanced adversary system in juvenile courts is i., no longer possible to conceive of juvenile court comprehensive examination of the need for attor­ tinct institutions dedicated to non-punitive treat­ an essential element in their future development, proceedings as involving a single interest-the ment and rehabilitation of offenders, they will ney-prosecutors in juvenile delinquency proceed­ the cause of juvenile justice will not be served if child's. Until, at least, the adjudicatory stage h~s have to continue to absorb the impact of judicial ings and a consideration of the appr9priate scope the traditional ideals of the juvenile court move­ ended, the Constitution requires procedures which and legislative actions which "legalize" and "for­ of their responsibility. Although much of our ment are lost as a consequence. It is, therefore, recognize that distinct and possibly conflicting empirical research was focused on the Boston Juve­ imperative that the design and implementation of malize" their processes, without surrendering their interests are involved. The State has an interest in nile Court, where prosecution is conducted by new programs of juvenile prosecution be aimed distinctive goals. Valid criticisms of existing proce­ taking jurisdiction over appropriate juvenile sub­ police officers, considerable attention was given to toward sustaining and enhancing the court's orig­ dures, whether on grounds of unfairness or ineffi­ jects on two grounds: to protect society from placing our Endings in a national context. In addi­ inal high purpose. ciency, should be anticipated, and solutions should threatening conduct and, as pm'ens patriae, to tion to a review of statutory and other legal mate­ The findings of this research form the basis for be tailored which will interfere as little as possible promote the juvenile'S welfare. The child, on the rials from many states, on-site visits were made to the recommended guidelines for juvenile prosecu- with the substantive goals of the system. other hand, has an interest in avoiding inappro-

viii ix ...

priate or unnecessary juvenile court proceedings, contested cases, cases where the juvenile is repre­ involvement show similar variation by case type, raised specific needs for professional prosecution stigmatic adjudications, and other consequent sented by counsel, etc.), no criteria for guiding overall; attorney representation of the juvenHe sllch as in preparing or screening pctitions, most deprivations. This recognition of potential adver­ the cOllrt's discretion, sllch as the complexity of the appears to exceed thnt of the state. cited the need to maintain adversary balance in sadness in juvenile court proceedings was expressed case, are given. An examination of the attorney-prosecutor's their COUl'ts. Although there were philosophical in the Supreme Comt's application of various proce­ There is recent evidence, howevel') based upon pnt·tidpntion in specific court functions reveals that, differences among judges with reference to G(lldt, dural protections drawn from the Constitutional newly enacted and proposed rules and statutes, by and large, his role is a restricted one. He rarely the rccognitions of the necd for nttol'11ey-prosew­ requirements in criminal proceedings. that there may be a decided trend in the direction participates in initial detention decisions or their tors in the juvenile court sctting seemed to override Aggressive defense of the child's interest in of increased utilization of prosecutors in juvenile review nor is his lawyer's expertise often utilized any basic differences in judicial philosophy. avoiding adjudication is now taking such "tech­ court. At the same time, it is clear that there is in the preparation or review of l)etitons. He repre­ nical" forms as suppression of illegally seized evi­ little agreement on the precise nature nnd defini­ sents the state in pretrial motions, probable cause IV. dence or defective witness identifications, demands tion of his role. hearings, COIFcnt decrees (where they arc used) As one of the oldest independent juvenile for probab!e cause hearings, and objections to the In an effort to obtain information concerning and, of course, at adjudication hearings. However, courts in the cOllnt.ry, the Boston j uvenilc Court sufficiency of proof. Without any legally trained the current status of juvenile court prosecution as the attorney-prosecutor's ,Presencc is diminished at has achieved considerable respect as :i rourt with prosecutor available in the juvenile court to pre­ well as the views of juvenile court judges on the the disposition stage and only rarely is he respon­ high commitment to the treatment and :ehabilita­ sent the state's response to such objections, the role of juvenile prosecution, a survey was conducted sible for recommending dispositions to the judge. cion of juveniles and to the protection of juveniles' state's interest may not be represented adequately, of juvenile judges serving in the one hundred Almost two-thirds of the 137 responding judges legal rights. In recent years, the court has moved unless the judge compensates by acting as prose­ largest cities in the United States. were satisfied with the extent of attorney-prosecu­ increasingly toward the adoption of a full adversary cutOr. \'(fhen the latter occurs, as it has in many The survey data revealed that the representation tion in their courtS while one-third favored a marc model for the adjudication of juvenile offenses instances, other problems arise. of juveniles by attorneys has increased dramatically extensive role for professional prosecutors. In and and, through the efforts of its presiding justice, has A review of juvenile court legislation currently since the Grlltlt decision in 1967. Although full of itself, the present frequency of professional encouraged the active participation of legal counsel in force across the nation discloses considerable representation of juveniles is not yet a reality, prosecutorial involvement appears to be unrelated for juveniles. \X7ith almOSt 90 % of all juveniles variation among the jurisdictions on the question attorneys are playing a far more pr'ominent role to judges' attimdes tOward extending the role of represented by counsel, defense attOrney represen­ of prosecution. About half of the state's laws still in juvenile proceedings than ever before and, in attorney-prosecutors. However, judges in courts tation in the Boston Juvenile Court equals or reflect the traditional, pre-(undt conception of delinquency proceedings based upon serious with unbalanced adversary systems were far more exceeds that of any juvenile court in the country. the juvenile court by their silence on the subject offenses, are representing more than 75 % of juve­ likely to approve an increase in the role of pro­ Yet, in spite of the ver.y widespread involvement of prosecution, although they will assign partic­ niles in the majority of the surveyed cities. The f~ssional prosecutors than were judges in courts of lawyers to represent juveniles, there has been no ular prosecutorial roles, such as preparation of the increase in defense counsel participation in juvenile displaying a balance in the amount of prosecu­ corresponding increase in the use of attorneys to petition, Or presentation of the evidence, to the pro­ proceedings has been accompanied by a sharp rise torial and defense counsel involvement. represent the state. Like Massachusetts' district bation officer or judge. In at least nine jurisdictions, in the use of professional prosecutors. Almost A majority of judges favored the use of attorney­ courts, which have always made extensive usc of the participation of professional prosecutOrs, at 95 % of the responding cities reported that prosecutors in all juvenile cases. Support for broad police prosecu tion, the Boston Juvenile Court uses least in certain kinds of cases, is mandatory. In attorney-prosecutors regularly appear in their participation by professional prosecutors was most police officers, exclusively, in the prosecution of its eleven jurisdictions, such participation depends juvenile courts. In almost half of these cities, the often found among judges from jurisdictions where cases. In this regard, the Boston Juvenile Court upon the juvenile court's discretionary request or regular use of professional prosecutors began since prosecutors already participate heavily. Resistance is among the small minority of big-city juvenile consent. In some states, authority for professional the Grlltlt decision. to a broadly inclusive role for professional prose­ courts which still do not utilize professional prose­ prosecution is found not in statutes, but in court Although they appear regularly, the !req1tency curors was most apparent in jurisdictions 'INhere cution. The tremendous gal) between attorney rules, or in the "inherent power" of juvenile court with which attorney-prosecutors participate in prosecution is relatively inactive. representation which is available to the state and judges to procure needed assistance .. juvenile proceedings varies, but is greatest in cases The judges surveyed were encouraged to include that which is available to the juvenile makes the Statutes which do provide for mandatory or involving serious delinquencies. Almost 60% of . extended comments concerning the use of attorney­ Boston Juvenile Court unique . discretionary participation by prosecutors in juve­ the cities reported that professional prosecutors prosecutors in the juvenile court. The judges who The Boston Juvenile Court also lacks any intake nile court proceedings typically offer few details appear for the state in more than three-quarters of returned narrative comments were unanmious in screening mechanism for the informal adjustment on the nature or scope of such participation. While all felony-based delinquencies. Only about 30% their support of the use of attorney-prosecutors. In or diversion of cases. The absence of in-coLlrt ad jest­ a statute may restrict the categories of cases in of the cities reported that professional prosecutors the vast majority of responses, this suppOrt could ment procedures places greater power in the hands which the judge is authorized to request prosecu­ are used in more than three-quarters of their PINS be related to the increase in attorney representation of the police in controlling the flow of cases than torial participation (e.g.) in delinquency cases, cases. Although levels of defense and prosecutor of juveniles since Gattlt. While a number of judges they might otherwise have. In examing the oppor-

x I xi I J The commendable work of the juvenile officers dons, infrequent in the past, are increasing with However, until very recently, the increasing tunmes and needs for adjustment and diversion at the complaint stage is undoubtedly strengthened the recent expansion in the number of public caseload carried by the Massachusetts Defenders procedures in the Boston Juvenile Court, the by their work as prosecutors and their daily contact defenders assigned to the court. Even with the was not matched by a corresponding increase in limitations of police prosecution assume critical with the court. Their responsibilities for presenting assistance of law students, the police are not able the number of attorneys assigned to the Boston importance. the government's evidence at adjudicatory hearings to provide adequate representation of the State in Juvenile Court and the annual average number Nine police officers are used to provide most on referrals and complaints which they have this area. of cases per defender swelled from 40 in 1966 to prosecutorial services in the Boston Juvenile Court. approved provide them with firsthand exposure At the adjudcntory stage, the government oper­ 649 in 1971. Eight are juvenile officers assigned to the three to the court's standards and requirements. Their ates under a severe handicap in presenting all but district police stations which cover the area in In mid-1972, prior to the commencement of continuing relationship with the court and the the most simple cases in the Boston Juvenile Court. Boston falling within the jurisdiction of the Boston our court observations, the Massachusetts Defen­ forceful criticism of its presiding justice have pro­ Although the best of the regular police prosenl­ Juvenile Court. They generally spend the mornings ders increased in manpower in the Boston Juvenile duced police screening criteria which closely tors have little difficulty in representing the State in court prosecuting cases which arise out of their Court to five or six attorneys-by far the largest approxima.te those of the court itself. However, in simple cases which do not involve complicated ." respective districts and the latter portion of the number of public defenders ever to serve in the no amount of court contact is likely to overcome fact situations or issues of law, the'y are who1ly day in performing their regular responsibilities as court. With this number of defenders available to the natural limitations of police prosecution. As the unable to respond effectively to most objections juvenile officers in their districts. A police sergeant, provide representation, the caseload for each defen­ adversary demands on juvenile prosecution have and motions. Unable to argue points of law and attached to headquarters, has overall supervisory der since July 1972 would probably be well under grown, the police prosecutors have been increas­ often L,iing to elicit testimony which is necessary responsibility for police prosecution in the court. 300 cases a year, a considerable improvement over ingly handicapped by their lack of legal training. to establish all the essential elements of an offense, None of the juvenile officers is an attorney or has previous years. It should also be mentioned that In addition, because they view prosecution as an police prosecutors would seriously jeopardize a had any formal legal training. the Defenders came under new leadership in the appendage to their primary responsibilities as police large proportion of their cases were it not for the In theory at least, all arrests of juveniles in a summer of 1972 with the appointment of a new officers, the juvenile prosecutors are properly gov­ reluctant allowances which the court makes for particular police district are screened and processed chief counsel. erned by an awareness that their post-complaint the untrained police prosecutors and the active at the station house by a juvenile officer who, jf the The exclusive use of police prosecutors in the discretionary authority is and should be limited. assistance which it provides. The judges them­ case is not adjusted at the police station, will sub­ Boston Juvenile Court, while effective in certain They neither seek nor desire the broad discretion­ selves routinely "argue" the government's side sequently prosecute the case in court. In fact, about limited areas, has not only hampered the proper ary and advisory responsiblities which prosecuting when a legal issue is raised by an objection or 30 % of all cases are prosecuted by persons other administration of juvenile justice in the court as it officials normally assume and which are needed in motion. On occasion, judges examine prosecution than the regular police prosecutors (the juvenile is presently constituted, bur has also created barriers the juvenile court. It is clear that whatever their witnesses to ensure that the prosecutor does not officers). In most instances, these cases are pre­ to the introduction of needed new procedures and competence as juvenile officers, police prosecutors neglect to establish all the essential elements of sented by the police officers who made the arrests. services. In general, the prosecutorial activities of are not now able to fully meet the prosecutorial government's case. The regular police prosecutors may also present the juvenile officers are carried out most success­ needs of the COurt. Moreover, it is important to With no competent State's representative the cases in which they were the arresting officers. fully in areas which relate most closely to conven­ note that police effectiveness at the complaint stage court is placed in the difficult position of dismissing The Massachusetts Defenders Committee pro­ tional police work. For example, the juvenile offi­ may be dependent upon their participation in other a large percentage of otherwise viable cases or inter­ vides state-wide public defender services to indi­ cf,~s presently do an effective job, within the scope phases of juvenile court prosecution, and may be vening to assist the prosecution. The interests of gents in criminal and juvenile proceedings. Since of their discretionary authority, of screening out severely reduced as they are replaced by professional the community in the fair and efficient adjudication July 1965, the Massachusetts Defenders has many inconsequential cases without court referral. prosecutors at other stages in the process. Accord­ of juvenile cases are not furthered in either event. assigned at least one lawyer to represent juveniles The court's caseload, therefore) does not reflect ingly, the guidelines for juvenile court prosecution, Judicial intervention on behalf of the prosecution in the Boston Juvenile Court and, in each year a high proportion of trivial complaints which are as set forth below, envisage an important role for raises significant doubt concerning the fairness of since it began its work in the court, has represented indiscriminantly referred for judicial attention. professional prosecution at the complaint stage the proceeding and is not likely to leave a juvenile an increasing number of juveniles. Although Also, the p0lice prosecutors, together with the notwithstanding the fact that many of the duties or his parents convinced that "justice is blind" in privately retained counsel occasionally appears in court clerk, have been quite effective in minimizing which attended that stage are now capably per­ the juvenile courts. the court and some cases are still assigned to mem­ the number of legally insufficient compl.aints which formed. A substantial percentage of cases are prosecuted are approved. Excessive charging is the rare excep­ bers of the private bar, the Massachusetts Defenders The police prosecutors' lack of legal training by the arresting officers, many of whom are tion and while errors do occur in applying the has clearly emerged as the court's dominant has placed severe stresses on the court's adjudicatory entirely unfamiliar with the basic requirements of proper legal charges to particular fact situations, defense counsel resource, representing over three­ process and has impeded the development of a presenting the evidence at a trial. Moreover, in they are not frequent. Complaints are \'veIl drafted quarters of those juvenile who do receive defense properly balanced adversary system. Pretrial mo- appearing as a witness, the police prosecutor can counsel assistance. by the clerk. xiii xii no longer be regarded as the objective State's repre­ the intake stage. The guidelines, at the end of the process so as to advance the court's efforts in Lastly, the community'S interests in protecting its sentative. An unfavorable finding by the court report, therefore, recommend the establishment meeting the rehabilitative needs of juveniles security do nOt cease at the adjudication stage and may be tantamount to an attack on the witness­ of an intake screening process which would seek to through thoughtful, informed and responsive dis­ neither should its representation. In the small num­ prosecutor's truthfulness. Because of the prosecu­ identify and divert appropriate cases not requiring positional programs. It is believed that the creation ber of cases where confinement is deemed vital. to tor's personal involvement in the case, all the full judicial action. The participation of a juvenile of a role for an attorney-prosecutor at the disposi­ the rehabilitation of the juvenile or to protect the ordinary elements of an adversary proceeding­ court prosecutor is deemed essential to the proper tion stage can be an important first step in that ~ommunity from a substantial-threat to its safety, cross-examination, objections to evidence-may operation of an intake dlVersion process. direction. It should be the prosecutor's responsibility to argue take on the coloration of personal conflict. Under Also, far more cases are "contested" by defen­ First, there is no vehicle for the development of for commitment. In the vast majority of cases, how­ these circumstances, it is extremely difficult to main­ ders than appear to be warranted. The nominal, joint dispositional recommendations involving the ever, the prosecutor would be expected to encour­ tain an appearance of fairness and propriety in the perfunctory defense which defenders provide in participaton of prosecution, defense and probation. age the least restrictive dispositional alternatives courtroom. many of these cases is rarely of any assistance to Although defenders often do consult with proba­ which are consistant with the treatment and dis­ Prosecutorial weaknesses have not previously the juvenile and diverts greatiy needed time and tion officers prior to the disposition hearing and ciplinary needs of the juvenile. been fully exploited by the public defenders. Public resources from the investigation and preparation read the clinic reports and social histories, there is defenders are often inadequately prepared and their of other, more promising cases. Many of these little evidence that their role is more than passive. v. "success rate" does not compare favorably with "contested" cases e;uld better be resolved through Suggestions by defense attorneys concerning pro­ that of private counsel who appear in the court. the development of negotiated consent decrees or posed dispositions are not always welcomed by Juvenile prosecution in six other jurisdictions Although efforts to vitalize defender services In a diversionary program prior to the adjudicatory probation officers. The active participation of an was also reviewed. Informaton for three courts, the Boston Juvenile Court are under way, it is hearing. However, with no attorney-prosecutor attorney-prosecutor at disposition would provide Atlanta, Salt Lake City and Seattle, was derived doubtful whether a high standard of public defen­ present with autJlOrity to engage in such joint a natural focal point for the participation of defense primarily from Three J1tVe1~ile COltl'ts, A Compara­ der representation can be achieved as long as the recommendations and to approve them in behalf counsel in the exploration of suitable dispositional tive Analysis, prepared by the Institute for Court Management, University of Denver Law Center present system of prosecution exists in the court. of the community, these opportunities are not gen­ alternatives and would encourage a broader coop­ . ' Ironically, the absence of qualified prosecutors may erally available. erative effort in securing responsive dispositional 10 1972. On-site visits were made to the other three jurisdictions: Hartford, Providence and do more to inhibit effective defense representation Police prosecutors play virtually no role at recommendations. "Metropolis" (a large eastern city) . than it does to advance it. When judges feel com­ disposition and frequently are not present at the Second, probation officers should not be cast in pelled to intervene in support of lay prosecutors, hearing. They almost never recommend disposi­ the role of adversaries to defense counsel. How­ In both Atlanta and Salt Lake City, full-time normal adversary relationships break down. Objec- tions to the court. The public defender, when he ever, at the disposition· hearing, it is very difficult professional prosecutors are used. However, in for the defenders to contest the information find- neither city does the prosecutor playa major role in - tions, if they are made, must be directed against does make a recommendation, ()nly infrequently . ' the judge's Own questions and he, in turn must will provide the court with useful supporting mgs or recommendations submitted to the court screening court referrals or preparing and review­ rule On their validity. Arguments on motions may information. In this setting, the judge assumes by probati()n or clinic staff without provoking this ing delinquency petitions. Also, because investiga­ result in an adversary contest between the defender almost total responsibility for obtaining informa­ very consequence. As one defender put it: "With tive work, selection and interviewing of witnesses, and the judge. This distorted adversary climate is tion, proposing alternative treatment plans, recom­ the police, we kno\" we are in an adversary role. designation of charges and pre-trial screening, gen­ not conducive to aggressive advocacy by public mending "diagnostic procedures, evaluating the We can handle that antI be amicable afterward. erally, are conducted outside of the prosecutors' defenders who must appear before the same judges clinic's findings and examining the probation 'With probation officers, especially the older ones supervisory authority, their role is very limited. an a daily basis. officer or others who may appear at disposition. the situation is different. They are not used to bein~ This has resulted in inadequate preparation for trial, inadequate screening and preparation of peti­ The need for an attorney-prosecutor in the Although the judges frequently invite suggestions cast as an adversary." Because the public defenders tions, and Insufficient guidance to police and proba­ Boston Juvenile Court is also essential to the imple­ from those present, they are rarely forthcoming. are dependent upon the probation staff for consid­ tion regarding legal requirements. The prosecutors mentation of more flexible approaches to the treat­ There is almost no cross-discussion among defense era?le inf~rmation, they are not apt to endanger theIr relatIOnship by challenging the probation play little, if any, role at the disposition stage. ment of juveniles who are referred to the court. counsel, the police prosecutor, and probation staff. officer at the disposition hearing. The presence of Many cases are referred to the cOurt which cannot The problem of providing effective services to In response to concern over the broad discre­ a prosecutor at the disposition hearing is designed tionary authority wielded by probation in the King be screened out by the juvenile officers but which juveniles who are in need of help goes well beyond to encourage a more vigorous examination of dis­ County Juvenile Court (Seattle), the function of do not require full adjudication. Stubborn children, the scope of the juvenile court's powers and the p?s~tional alternatives while at the same time pro­ prosecution has been expanded to include deter­ runaways and other offenses which are unique to nature of its dispositional process. However, even vldmg ~ ~rotective "buffer" for non-legal probation mining whether sufficient evidence exists to juveniles are among the ki~ds of cases which many within the court's resource limitations, opportuni­ and clmlc staff whose recommendations are in warrant the filing of a delinquency petition; super­ courts are successful in diverting or adjusting at ties do exist for strengthening the dispositional dispute. - vision of the preparation of delinquency petitions xiv xv j ,J and the prosecution of contested cases. The prose­ proposal and the decentralized, incomplete prosecn­ each week to screen all cases collected for his int0rest in juvenile court includes concern for com­ cutor's oflice is also expected to represent the state torial services which are now provided continue to review, but delays still occur in the fural areas munity protection together with promotion of the at preliminary hearings, at disposition, and proba­ cause serious problems in the court. which fall withil1 the court's jurisdiction. The court best interests of the juvenile; 2) in balancing the don revocation hearings. In addition, the prosecutor In Metropolis, police prosecution in juvenile is also confronted with serious delays as a result demands of community protection with his respon­ is required to provide broad assistance to the police courts was replaced by an experimental prosecutor of inadequate investigative staff. Furthermore, there sibilities as iJl/ralJ.t IHltrillo, the juvenile prosecuto!.' in the devel\>1)1l1ent of operational guidelines and program operated by the City Attorney. Emphasis is criticism concerning the quality of petitions in should consider the circllmstances of each pard· training of personnel. was to be given to post-intake petition screening uncontested cases which arc not reviewed by the cular case; 3) as advocate, the juvenile proseClltor The juvenile prosecutor In Seattle now has and drafting, participating in effortS to resolve prosecutor and for the need to have probation staff should act to ensure proper preparation and pre­ considerable administrative control over the pre­ appropriate cases prior to hearing and representing represent the government at detention hearings. sentation of the state's case at all stages and should sentation and prosecution of juvenile cases. The the petitioner at adjudicatory and probation revo­ Given the relatively small number of contested also participate in efforts to advance legitimate law scope of his responsibility and participation in the cation hearings. cases, the need for a full-time prosecutOr has been enforcement and child wel6lre goals; It) certain juvenile justice process far exceeds that which is For a variety of rens...:'. s, including manpower questioned. However, in view of the need to punitive objectives (a.g.} retribution) 1 are inappro­ found in most jurisdictions. \Xfhile this degree of limitations, little effort has been made to achieve expand the role of prosecution in such areas as priate clements of juvenile prosecution; 5) the authority is reSl)Onsive to the legitimate needs of the first twO objectives. As a consequence, it is esti­ petition drafting and review, coure intake, pre­ juvenile proseclltOr should seek to encourage ellrly the juvenile justice system, there may be a danger mated that r'\vel1t)' to thirty percent of all petitions trial hearings, investigation, etc., it is doubtful diversion of appropriate cases and to i1'n1'ose the in the tendency to use the prosecutOr's ofllce as are defective and must be amended, withdrawn, that exclusive reliance on part-time prosecutors least restrictive alternatives possible; the prosecLltor legal advisor to the COurt beyond the context of or dismissed. In addition, an already overburdened appointed from the private bar will be feasible should proceed only on legally sulTiciene complaints any court proceeding. This use, as legal advisor to court system is further taxed by having to hear 01' desirable in the future. or petitions even where a need for treatment i:1 the court, may conflict with the prosecutor's role a great many cases in which there is no real dispote indicated; 6) the juvenile prosecutor shares respon­ VI. 11S adversary litigant before the court. :Moreover, over the facts or which do not belong in court. sibility for ensuring that pre- and post-disposition rehabilitative programs are carried out and that the recommendation of court practices and proce­ Prosecutors are impeded in achieving the third The proposed guidelines for juvenile prosecution services and fncilities for treatment and detention dures should not become the province of the prose­ objective by a lack of investigatory and clerical which are set forth below in summary seek to meet meet proper standards; and 7) the juvenile prose­ cutor's office to the exclusion of juvenile defenders staff. Cases are poorly prepared and presented and the growing needs for competent adversary repre­ cutOr has a duty to promote justice by insisting on and others whose views, as advocates of juveniles' judges are highly critical of the performance oftlle sentation of tbe state in juvenile delinquency pro­ fair and lawful procedures. rights, are essential to a balanced consideration of juvenile prosecutors. ceedings, while also advancing the child welfare proposed changes. Notwithstanding their present deficiencies, orientation of O.lr juvenile justice system. Although Pursuant to the foregoing general principles, the guidelines for prosecution in the BostOn J llve­ Juvenile prosecution in the Rhode Island Family juvenile court judges regard the use of ~lttorney­ designed for application to the Boston Juvenile Court is conducted by city and town solicitors from prosecutors as a substantial improvement over the Court, the guidelines address the range of issues nile Court recommend the. esrabUsbment of an throughout the state. They prosecute those cases use of police prosecutors. However, it is clear that which are now being considered in jurisdictions independent OfHce of Prosecution with broad arising out of action taken bY' their local police without substantial changes in staff, program con­ throughout the country. Because the problems of responsibility for the preparation and prosecution agencies. As in Atlanta and SnIt Lake City, the tent and commitment to the child welfare respon­ creating new roles for juvenile prosecution are of all cases involving juveniles. The prosecutor's solicitOrs do not. review petitions before they are sibilities of juvenile court prosecution, the Metrop­ only now beginning to emerge, few jurisdictions area of prehearing responsibility include consulta­ filed, resulting in an excess of legally insufficient olis program is likely to remain vastly inadequate. have thus far developed satisfactory responses. The tion with police administrators regarding' enforce­ petitions and a lack of uniform standards for court The Hartford (Connecticut) Juvenile Court kinds of difficulties which confrone the BostOn ment policies and methods in juvenile cases, and referrals. Moreover, because many of state's solici­ uses the services of private attorneys to prosecute. Juvenile Court in providing qualified prosecutorial instruction and assistance to police ofllcers to assure tors regard juvenile prosecution as.a matter of low They are appointed on a case-by-case basis from services have been noted, in greater or lesser effective law enforcement procedures consistent priority, they are frequ~atly unprepared for trial an approved list to prosecute the small percentage degree, in almost all jurisdictions. We are, there­ with applicable legal requirements. He is urged to and repeated continuaih:es are common. of cases (contested) which are not adjusted at the fore, confident that the guidelines will provide represent the State at detention and probable cause t\. committee of judges, appointed in 1969 to intake stage. Prosecutors perform no intake screen­ an important foundation for all jurisdictions seek­ hearings (where they are held) and to approve study the question of juvenile court prosecution, ing functions but must approve cases referred to ing ways to meet the many new challenges which police requests for arrest and search warrants. conduded that an independent juvenile court pro­ them for prosecution. Until recently, these trans­ have come about since Galtlt. The prosecutor has functions at intake in relation secutor's office having broad authority for the actions were conducted by mail and lengthy delays Seven general principles for juvenile court to three objectives: 1) screening of prosecutions prosecution of petitions against juveniles should were encountered in completing the screening prosecution are advanced in the guidelines. In for legal sufficiency, to ensure that any coercive be established. No action has been taken on the process. Now, one prosecutor comes to the court summary, they are: 1) advocacy of the state's treatment, whether administered on a formal or

xvi xvii CHAPTER I The guidelines impose a continuing role for the "informal" basis, rests on an adequate legal basis; juvenile prosecutor at the disposition stage. He is 2) prosecuting or diverting legally sufficient cases obliged to ensure that only reliable evidence is according to "public policy" nnsderations regard­ introduced on the question of disposition and to ing the nature of the conduct alleged; and 3) promote the availability of adequate disposi­ prosecuting or diverting legally sufficient cases on tional recommendations through consultation with the basis of the juvenile's individual needs or pro­ INTRODUCTION defense and probation. His presence at disposition pensities. The prosecutor is also urged to encour­ age diversion of juveniles after the complaint or serves the further purpose of freeing probation and petition is filed, but prior to adjudication through clinic staff from the burden of advocacy and of As noted in the 1967 report of President's responsibility of our Nation's juvenile court the recommendation of consent decrees or continu- providing a more orderly forum in which expert Crime Commission, youth is responsible for a sub­ system. 10 ances without a finding. recommendations may be contested. stantial and disproportionate part of the national In 1970, over one million juveniie delinquency The prosecutor's responsibilities for preparing It is also deemed desirable for the juvenile pws­ crime problem.1 According to the recent study of ~ases, . excluding traffic offenses, were handled by cases for hearing include selecting and interviewing ecutor to represent the State at appeals and col­ the Committee for Economic Development, Red1lc­ Juventle courts in the United States and a signifi­ witnesses, and supervision of investigative activities. lateral proceedings in the juvenile court or other ing Crime and Ass1I1'ing j1tStice} "Nationwide, over cant upward trend in cases has occurred annualt'f The prosecutor should represent the state at hear­ court. He should represent the State in such post­ ll half of all those arrested for the seven Index for over 10 years. The juvenile justice system th:t ings on pre-trial motions and should ensure that dispositional matters as probation revocation pw­ wmes• 2 are under 19 years of age; one fifth are is responsible for responding to the criminal acts liberal discovery is available to the defense. It is ceedings. Juvenile prosecutors should be attOrneys or younger." 3 Even more specifically, the of young people, as well as to a range of other mat­ also important that the prosecutor establish cooper­ 14 with special training in juvenile law and in the ters (such as truancy, neglect, dependency, etc.), ative relationships with defense attorneys in arriv­ Uniform Crime Reports for 1971 reflect that of child welfare goals of the juvenile court. In addi­ has been under severe attack in recent years. Much ing at prosecutorial decisions which fairly reflect all the arrests made during 1971 for Index crimes , tion to lawyers, the prosecutors staff should include of this criticism, as will be discussed below, has the needs of the juvenile and the community. The persons under 18 were involved in 32 percent of adequate numbers of trained social workers, crim­ been leveled, and r,ightly so, at the lack of proce­ prosecutor is also required to represent the State at the arrest for robbery;4 35 percent of the arrests inal investigators and paraprofessionals. Finally, du~al safeguards for juveniles in the juvenile justice all adjudicatory hearings. In exceptional circum­ for burglary;5 50 percent of the arrests for larcenies he should maintain dose, cooperative relationships process and the failures of traditional correctional stances, this responsibility may be delegated to non­ over $50;° 53 percent of the arrests for auto thefts' 7 with social service agencies and community groups programs and institutions to deal with the prob­ professionals (e.g.) police prosecutors or law stu­ and 10 percent of the arrests for homicide:.8 who are involved in the advancement of childrens' lems and needs of delinquents. In response to the dents), but only in a limited range of cases and Although similar figures were not available' for former, the Supreme Court (although in some­ under the close supervision of the prosecutor. rights and welfare. {or:ible rapes and aggravated assaults, the U~iform, . what ambivalent fashion) has expanded the pro­ C1'tme Reports indicated an increasing percent of cedural rights of juveniles and has extended the the arrests made for these offenses are for persons right of counsel to juveniles in juvenile delin­ 9 under 18 as wel1. Most of these cases, as well as quency proceedings. In response to the growing .those for other criminal conduct, become. the attack on juvenile correctional programs, active movements are underway nationally to close down . 1 P.resident·s Commission on Law Enforcement and Admin- 1S5tratlon of Justice, The Challenge of Crime ill a Free Society large ,scale institutions, to direct juveniles away 5 (1967) at 55. from the juvenile justice system if at all possible, I 2 I~dex offenses include murder and non-negligent man- and to create a range of community "treatment" s aug terS'50forcible rape, robbery, aggrevated assault burglar" 0 11 Iarceny3 • and Ved' r, an motor vehicle theft. programs. Comm.Jttee for Economic Development, Reducillg Crime In all of this development, virtually no atten­ alJd ASSIIrmg j 1I!tice 11 (1971). tion has been paid to the question of who repre­ 4 Federal Bureau of Investigation, Crime in the United States, Ulliform Crime Reports-1971 at 18 (1972). sents the State in juvenile delinquency matters or 5 Id., at 21. 10 The upper age range jurisdiction of juvenile courts nor­ 6]d., at 25. malIy varies from 16-18. Further, in many jurisdictions, certain offenses can be tried either in a juvenile court or in a criminal 7 Id., at 29. court. 8 Id., at iO. • 11 U.S. Department of Heitlth, Education and Welfare jllve- n Id., at 12, 14. mle COflrt Statistics 1970, at 2 (1972). ',' '

1 xviii

t \ I , \ ,...I his role in protecting society against criminal beha­ Court; (2) based upon such examination and other might relate from initial handling by police other agencies within the process?" Both the vior while, at the same time, trying to meet the research, establish appropriate objectives for juve­ through dispositional stages. research phase and the later demonstration phase supposed priority objective of the juvenile justice nile prosecution; and (3) develop, implement, Founded in 1906, the Boston Juvenile Couct is attempt to deal directly with such questions within system-responding compassionately and effec­ and evaluate a model juvenile prosecutor project the second oldest juvenile court in the United the context of a specific court-The Boston Juve­ tively to the needs of juveniles. within the BostOn Juvenile Court as a guide to all States. It has the largest juvenile caseload of any nile Court. The findings and recommendations, The accepted notion tbat adversary conflict was interested jurisdictions. first-instance court in Massachusetts; in 1971, over however, hopefully should have a wide effect in best kept out of juvenile court was responsible for Up to now, there has been little empirical 2,000 such cases were recorded. The Court exercises many specific contexts and in the philosophy of the general absence of juvenile court prosecutors research directly concerned with the juvenile pro­ jurisdiction over alleged delinquents and "way­ juvenile justice systems as a whole. from the law, practice and literature of the juvenile secutor's role. The possibility that his can be a key ward" children between the ages of seven and With reference to the proposed model for juve­ courts in the pre-Galllt era. This was consistent with role, involving a variety of significant discretionary seventeen and over neglected children under nile prosecution, an effort has been made to relate other implications of the prevailing "social service" judgments and presenting a major avenue for the sixteen. answers to the above questions and findings and view of the juvenile COLlrt, according to which pro­ introduction of constructive changes, has certainly One full-time Justice and twO Special Justices recommendations of this report to: 1) concrete ceedings were to be informal and non-criminal. not received the detailed study and examination it sit on the Court. Police officers from the Boston objectives and priorities for juvenile prosecution; Although it is not yet clear how far and to what deserves. Indeed, concepts of juvenile court reform Police Department represent the State in almost 2) specified responsibilities of prosecution at extent the Supreme Court will extend constitu­ have focused more often On development of pro­ all cases. (This practice makes a study and new various stages of the juvenile justice process; 3) tional guarantees to juvenile court proceedings, it bation staff, the juvenile court judge, or defense model of the prosecutorial role important.) In recommended relationships between prosecution is dear that the traditionally conceived juvenile counsel than on the potential of an improved pro­ neglect cases, a representative of a social welfare and other juvenile justice agencies and personnel; court has been changed irrevocably. Because the secutorial function. There is an obvious need, agency often assists in the presentation of the case. and 4) recommended criteria for a juvenile pros­ changes that have occurred are fundamental, they therefore, to give attention to the prosecution role In addition, the Court has a full-time probation ecutor's office in areas such as personnel require­ require serious reconsideration of the proper role both because of the impact it can ultimately have staff of sixteen (the staff operates some of its own ments, training, and supporting services. Although of prosecution in the juvenile justice system. on juvenile cases and because of the growing atten­ community-based services), a juvenile court clinic, it is important to address the role of prosecution As the results of the Center's National Survey tion of the courts to procedural requirements in the and an affiliation with a guidance center to which or government representation in other types of will indicate, prosecutors from offices such as a dis­ juvenile court setting. it sends special cases. juvenile proceedings, this project has been confined trict attorney's office have increasingly been utilized The report that follows contains the findings Besides the research within the Boston Juvenile to juvenile delinquency matters. It is recommended in juvenile courts since Gflltit, particularly in the and conclusions of the comprehensive research that Court, a national survey was conducted to ascertain that studies of representation in these other areas handling of delinquency cases. This means that the was undertaken of the prosecution role in the Bos­ the state of the art in juvenile prosecution, recent be undertaken as well at the earliest possible era of having police officers or probation oBjcers tOn Juvenile Court. The report also assesses the comprehensive studies of selected courts were opportunity. "present" a case in juvenile court (or simply of relevancy of those findings and conclusions to other reviewed, brief field visits were made to four other The report that follows examines: 1) the having a judge elicit information from the juvenile juvenile courts based upon both literature and field juvenile courts, and all other literature relevant to growth and development of the juvenile court sys­ and the witnesses) may well be over. This transi­ research. Finally, after setting forth desirable our areas of concern was analyzed. tem; 2) the growth and development of the role tion could be an essential one, but it should not be objectives for prosecution at the juvenile level, this Throughout phase one we raised and tried to of prosecution in the juvenile court; 3) a pre­ made without careful consideration of the appro­ report establjshes guidelines and standards for an formulate answers to the questions: "What should liminary assessment of appropriate objectives and priate role of prosecution in a juvenile justice con­ experimental prosecution program which might the juvenile prosecutor be"; "How can he best functions for prosecution in the juvenile court; 4) text and the implication of this role to others implement its recommendations. It is anticipated serve the individual child, the public, and the an examination of the nature and character of the working within the process. The importance of that the model proposed in this section of the juvenile justice system"; "Does the traditional role Boston Juvenile Court; 5) an analysis of the role having careful development in th}s area led to the report will serve as the basis for the experimental of the prosecutor require redefinition"; "Are of prosecution 'ln this court; 6) an assessment of creation of this project. prosecution program which will be implemented broader discretionary powers at intake and disposi­ the relevancy of the findings and recommendations Funded by the National Institute of Law and evaluated as part of phase two of this project. tion necessary or valuable"; "What will the man­ for the Boston Juvenile Court to other representa­ Enforcement and Criminal Justice, this report power and financial requirements of an improved tive courts; and 7) suggested guidelines for an The research undertaken during phase one represents the first phase of a two-phase research role be"; "How should the prosecutor relate to experimental juvenile prosecution project. and development project centered upon the role within the Boston Juvenile Court included: legal of the prosecutor in juvenile delinquency proceed­ and literature research, extensive observations, ings. The purpose of the two-phased project is to: interviews, and analysis of statistics and case files. ( 1) examine the existing system of prosecution in Research within the court focused upon all parts an urban juvenile court-the Boston Juvenile of the juvenile justice process to which prosecution

2 3 _____- L

CHAPTER II were enacted giving courts power to commit for Rhode Island also required separate detention of reformation children "who are destitute of proper children awaiting tria1. 5 parental care, wandering about the streets, com­ Against the background of these earlier devel­ mitting mischief, and growing up in mendicancy, opments, the well-known Illinois Juvenile Court ignorance, idleness and vice.,,·1 An important con­ Act followed in 1899, and directly inspired the pas­ sequence of this expansion of jurisdiction was to sage of similar legislation throughout the country. THE DEVELOPMENT OF THE JUVENILE COURT SYSTEM shift the focus of judicial attention from facts Briefly summarized, the fundamental purposes of IN THE UNITED STATES establishing the child's commission of particular the Act, which were consistent with the trends acts, to those establishing n general condition or established by developments earlier in the century, status. created a state-wide "speci(ll COttrtlJ before which A. EARLY DEVELOPMENT The basic structure and dimensions of our cur­ The second important development was the crea­ pre-delinquent juveniles could be brought; author­ rent legal approaches to juvenile neglect and delin­ tion of specialized residential "treatment'· facilities ized that court to assume jurisdiction over such chil­ Legal institutions concerned with juvenile neg­ quency were formed by. developments which for the reformation of pre-delinquent children, in dren on the basis of "pre-delinquent" statuses, such lect and delinquency were in existence long before occurred in the nineteenth century. In response to physical segregation both from adult convicts and as ignorance, poverty, or exposure to vice, as well the establishment of the first "modern" juvenile a number of factors, important among which were from other juveniles who were already corrupted as on the basis of cdminal activity; segreg(/tecl pre­ court in Chicago in 1899. A brief review of these increased urbanization, industrialization and immi­ beyond salvation. The first of these was the New delinquents from adult criminals, both physically early developments offers a useful perspective on gration, concern about crime prevention led to York House of Refuge, established In 1825, and was and (by avoiding stigmatic labeling) psychologi­ the shaping of the role of prosecution in juvenile various reform activities in the field of child wel­ followed shortly by similar state institutions estab­ cally; and utilized individual treatment to prevent courts.1 fare. According to prevailing environmental lished in Pennsylvania and Massachusetts. To these future delinquency. This treatment was to be A major influence on the development of Amer­ theories about the etiology and treatment of crime, "reform schools" the courts committed children administered by the judge and other staff within ican juvenile law can be traced to the t'parens certain segments of the population-notably the found guilty of criminal violations, as well as those or available to the court, using both medical and patriae" jurisdiction of English chancery courts. urban, immigrant poor-\vere seen as particularly subject to jurisdiction for acts of potential delin­ social science techniques. In spirit, the juvenile These courts were primarily concerned with the prone to excesses of immorality and criminal quency. court was designed to function as a "non-legal" protection of juveniles' property rights, although deviance. The children' of these "deprived classes" The third development consisted of extending social agency, providing needed care to endan­ their authority extended to cover the welfare of constituted an "endangered" group, some of whom the notion of separate, specialized treatment of gered children, and resorting to coercion only as children generally. Their mandate was founded on might be "saved" by prompt intervention at the juveniles into court and even pre-court procedutes. necessary to serve the best interests of the child. the notion that children and other incompetents earliest signs of corruption. Such intervention, pri­ In 1861, the Mayor of Chicago was authorized to Hearings were to be conducted informally and in were subject to protective guardianship in the name marily activated by voluntary organizations of appoint a commissioner to hear minor charges private, legl.ll "technicalities" were to be put aside, of the pater p({tri({e the King.2 Chancery courts in J middle-class "child-savers," required removal of the against children and determine the proper disposi­ and records were to be kept confidential. Because this country took on the same obligations and child from his corrupting environment to a dif­ tion. Six years later, the responsibility was entrusted the judge and probation staff were to act as "tH/rem authority regarding child welfare, including respon­ 3 ferent setting, where salvation might be achieved to a judge. In Massachusetts in 1869, an agent for iJettri({e/J in the child's best interest, claims that the sibility for neglected and dependent children. It through a program of discipline and moral child needed representation by counsel or other is noteworthy, however, that chancery courts. never the state was required to be present at any proceed­ enlightenmen t. had jurisdiction over children charged with crim­ ing where a juvenile could be confined in a protection of his "rights" were viewed as mis­ The programs of intervention which were estab­ inal conduct. Until the creation of separate juvenile reformatory, and was also responsible for locating conceived. The court's process was to be paternal­ lished in various states gave rise to significant legal courts in the late nineteenth century, criminal juris­ foster homes if any were needed. In 1870, separate istic rather than adversary. The function of the developments of three sorts. The first was an expan­ diction over juveniles lay with the regular criminal hearings for juveniles, were required in Boston, a proceedings was to diagnose the child's condition sion of state jurisdiction to intervene coerci:veiy in courts. practice extended to the entire state in 1872. And and to prescribe for his needs-not to judge his (ICts the lives of children. Since such characteristics as by 1898, Rhode Island, New York and Massa­ and decide his rights. In such a proceeding, it was 1 The following historical discussion borrows heavily from "poverty", "ignorance" and "vice" were seen as pre­ President's Commission on Law Enforcement and Administra· chusetts had all enacted provisions for separate less necessary to conduct a scrupulous inquiry into tion of Justice, Task Force Report: Juvenile Delinqflellcy alld cursors of future criminality, and therefore as sessions, dockets and records in juvenile cases. the facts establishing a boy's particular misconduct Youth Crime (1967), especially pp. 2-4; and Fox, JfII'ellile reliable indicators of the need for "reformation," Jllstice Reform: All Historical Perspectit'e, 7;2 Stan. L. Rev. than to arrive at a benign assessment of his essential U87 (1970). it made no sense to restrict the state's power to ·1 ~ity of Chicago Ordinance, 1855, qlloted in Fox, JllveJli/e JllSllce Reform: All Historical Perspective 22 Stan L Rev "character. " 2 E. g., Eyre v. Sba!tbI/rY, 2 Peere \XTilliams 103 (1772); see commit children to those found guilty of criminal 118 - ,.. . generally Lou, JI/vel/i/e COllrts ill tbe United States (1929). 7, 1208 (19/0); see also the 1835 Pennsylvania Statute a Lou, SlIpra note 2, at 4-5. conduct. Accordingly, ordinances and legislation qlloted on .p. 1205 at n. 95. fi Lou, S1IPra note 2, at 15-19.

4 5 B. CHALLENGE AND REFORM by specialized police and court intake p~rsonnc.~ facilities to ensure the availability of reasonably proceeded rapidly in It multiplicity of forms inchld­ devoted to the goal of avoiding judicial procedures efIective rehabilitative processes at aU stages of the ing State and Federal court decisions, legislative Notwithstanding severnl early constitutional altogether. If in "the best interests of the child" juvenile justice system reinforced a view of the el1actments, administrative enactments, and court challenges to the "informality" of juvenile court the latter proved unavoidable, hearings would be system as basically pUl·Jitive. Residential detention rules. procedures, the Illinois system spread rill' idly conducted before judges specially tminctl to view and treatment facilities for juveniles were notori­ But this trend toward increased formality in the throughout the United Snltes, and for the first half the child's offense as a symptOm of underlying ous inadequate. ,Finally, even assuming society'S juvenile justice system has provoked great con· of this century operated without serious chllllenge personal maladjl1stmenc. Courtroom procedures willingness to fund a rehabilitative treatment troversy and uncertainty. Many fear that rejection on legal grounds. Gradually, however, there arose were to be therapeutically infofmal, and the judge's process for juveniles, our present ignorance of non­ of the traditional model· of "benign informality" n sense of skepticism and disjP~\\sion11lcnt with the disposition designed to provide the child with an punitive rehabilitative techniques cast doubt on our will result in application of so many cdmimtl proce­ juvenile court "reform." This growing criticism effp~tive rehabilitative program. Eventually, the ability to respond benignly and e1Iectively to dures to the juvenile court system that it wmiose was reflected in legal developments during the child would return to the community neither threatening misconduct by juveniles. its unique potential for responding tp juvenile mis­ 1950's and 1960's, reaching n crescendo in the stigmatized nor punished, but instend festored to The revisionist view of the juvenile justice sys­ conduct rehabilitativcly. Tht right: to counsel, the influential President's Commission's Task Force on the paths of responsible amI productive citizenship, tem presented in the Kallt alld G(lIIlt cases neces­ privilege against self-incrimination, sUl,pression of Juvenile Delinquency nnd Youth Crime in 1%7, Over the years, this conception of the juvenile surHy required a new definition of the constitutional illegally seized (but material) evidence-these and in the Supreme Court's decision of the same court as a kind of "sodal service agency" was under­ framework within which the juvenile court had to and other features of advet'saL'Y proceedings arc year InrI.' Gludt,O The essential thrust of Galllt mined by nn increasing recognition of the rea lit)' function. To the e":~~nt that juvenile court tre\1t­ hardly conducive, it is argued, to the maintenance (and of the Commission's recommendations) was it masked. That reality was remarkably similar to ment of offenders resembled the operation of crim· of an atmosphere of mutual concern and coopera­ that gre.uer procedural formality in juvenile courts the ordinary criminal courts. The major differences inal courts, it became necessary to consider the tion in which the best interests of a troubled juve­ was needed in order to safeguard the constitutional between them, it emerged, were two: first, the application of constitutional criminul procedure nile can be promoted. In its most recent case in the rights of juvenile litigants. Developments which punishment administered in juvenile proceedings protections to juveniles. The legal "revolution" in field, iHcKeit1(Jr ,tl. PaJlJlS)'/tlflltidI O the Supreme have taken place since 1967 have, for the mose was disguised in a sincere but unrealistic cloak of juvenile justice consisted in applying constitutional Court expressed these very concc1'11s. In refusing part, continued this trend. good intentions; second, the procedural safeguards doctrines of "fundamental fairness" under the due to extend the Sixth Amendment jury right to the There is no need in this report to undertake under the Federal and State Constitutions required process clause of the Fourteenth Amendment to juvenile justice system, the Court reiterated its faith a detailed review on the basic "failures" of juvenile in criminal cases did not apply in juvenile delin­ require that certain procedural guarantees must be in the unique rehabilitative aims of that system, court system which have precipitated the recent quency cases because the juvenile court ostensibly respected in juvenile delinquency proceedings. The and its reluctance to impose further formalities and continuing changes in its legal mucture. It is dispensed "help" and not punishment. Supreme Court's decisions to this effect were based now existing in the criminal process. The Court's ( sufficient for our purposes to mention some of the Official recognition that a punitive reality existed on the view that under tradHonal informal process, method of analysis appeared to be that of weighing reasons for this "legal revolution" and to present behind the rhetoric of sale concern for "rehabilita­ injustices might occur or be perceived to occur. the juvenile'S need for any particular procedural our view of its likely outcome. In this discussion, tinn" of juvenile offenders emerged in two Supreme In G((lIlt and succeeding cases, the Court attempted protection against the detrimental impact thereof we shall focus, as by nnd large have the courts and Court cases: Ke1l/./'. United States,7 and in I'e Galllt,S to inject minimal fairness by holding various fights on the State's chosen process for informal, non­ commentators, on the juvenile court's delinquency The change in attitude came for at least three applicable to the trial of delinquency cases: the criminal adjudication and rehabilitative treatment jurisdiction foun~~d on commission of criminal reasons. First, it was recognized that any process right to notice of charges, to the assistance of coun­ of juvenile offenders. acts. by which an individual is incarcerated in a state sel, to confront and cross-examine opposing wit­ For the time being, then, we are left with a The "traditional" juvenile court was conceived institution on the basis of his "misconduct" is nesses, to the privilege against self-incrimination hybrid system of juvenile justice. The courts have as part of a system of justice which expressed con­ punitive in the perceptions both of the individual and the right to have the state's case proved beyond neither repudiated the rehabilitative goals of the siderable leniency and toleranc~ toward juveniles youtn and of society at large. The stigma attached a reasonable doubt. Although these holdings were system, nor subjected it to the same procedural who engaged in anti-social conduct. Instead of to juvenile justice euphemisms such as "delinquent" technically limited to the adjudicatory stage of restraints as the criminal justice system. At the processing such children through the criminal jus­ support this view. Labeling proceedings as "civil" the proceedings, they spurred extension of these same time, the law has sought to ensure that depri­ tice system, where they might be traumatized by instead of "criminal," and incarceration as "treat- , and certain other rights previously available only vations of juvenile liberty, even if kindly motivated, formal, accusatory procedures, stigmatized as crim­ ment" instead of "punishment" does not alter the in criminal prosecutions, to various pre and post­ take place under sufficiently formal procedures to inals and subjected to punishment, the state would punitive nature of applying state power to sanction trial stages of juvenile proceedings. The adoption minimize the risk of arbitrary or unwarranted deal with their transgressions in an ex parte civil deviant conduct. Second, the State's proven failure and extension of these rights, involving such action. The juvenile court's procedural framework process, which was benign and paternalistic. In the to provide adequate resources of manpower and diverse issues as the presence of counsel at police should not assume the identical retributive and juvenile justice system: children would be screened identification line-ups and the right to humane con­ 7 383 U.S. 541 (1966). deterrent aims which remain elements of the crim- 6387 U.S. 1 (1967). s 387 U.S. 1 09(7). ditions in detf'ntion and correctional facilities , have 0402 U.S. 528 (1971).

6 7 CHAPTER 1\1 inal law (in fact, the aims of the criminal law pacitation, for achieving that protection. What should distinguish the juvenile from the criminal require reassessment), but neither should it be courts is their greater emphasis on rehabilitation, forgotten that the court does have responsibility not their exclusive preoccupation with it. 10 to protect society from juvenile misconduct. For­ mal, procedural guarantees appear to be most For juvenile courts to survive as distinct institu­ tions dedicated to non-punitive treatment and appropriate to those stages and functions of the THE PROSECUTOR'S ROLE IN THE JUVENILE COURT: system in which anti-social conduct by the juvenile rehabilitation of offenders, they will have to con­ FORMER STATUS AND CURRENT TRENDS is defined and sanctioned; greater informality and tinue to absorb the impact of judicial and legislative fewer "rights" are justified in those aspects of the actions which "legalize" and "formalize" their juvenile justice system where pursuit of the child's processes, without surrendering their distinctive best interest does not conflict with any higher goals. Valid criticisms of existing procedures, A. THE PROSECUTOR'S ROLE ally, the judge), was not legally trained. Nor, as obligations to the community at large. As the Presi­ whether on grounds of unfairness or inefficiency, HISTORICALLY a general rule, did legal counsel represent the child. dent's Commission on Law Enforcement and should be anticipated, and solutions tailored which Not only was there no need in such a system for The traditional juvenile court process did not Administration of Justice state in its 1967 report: will interfere as little as possible with the substan­ a "state's attorney," but the introduction of such a include a "prosecutor" in the sense of a legally tive goals of the system. Given this background, it figure \vould have been seen as highly inconsistant Rehabilitation of offenders through individualized trained person with responsibility to represent the handling is one way of providing protection, and is now important to examine the traditional role of with the philosophy of juvenile court. The parrid­ state in court proceedings. For several reasons, the appropriately the primary way in dealing with chil­ prosecution in the juvenile court and the impact, patioh of a State prosecutor would have implied inclusion of such a role would not only have been dren. But the guiding consideration for a court of both real and potential, upon this role. the existence of some particular state interest which seen as unnecessary, but as positively harmful to law that deals with threatening conduct is neverthe­ required advocacy, an interest distinct by definition less prOtection of the community. The juvenile the proper functioning of the court. Juvenile court 10 President's Commission on Law Enforcement and Admin­ from those of both the child and the judge (court). court, like other courtS, is therefore obliged to istration of Justice, The Challellge 0/ Crime ill a Free Society proceedings were designed to diagnose and treat But such a conception was considered contrary to employ all the means at hand, not excluding inca- (1967) at 81. the problems of children appearing before the the traditionally-prevailing notion that only one court. The proceeding was conceived to be one insti­ interest-the child's-was at stake in juvenile tuted "on behalf" ot the child, rather than against court proceedings. ~im. In this proceeding the State was represented The accepted notion that adversariness (and by the judge, who had the dual role of deciding therefore lawyer-advocates, whether for the child whether the court had jurisdiction over the child or the state) was best kept out of juvenile court and, if so, of prescribing that disposition which was responsible for the general absence of juvenile would best further the state's interest, as parens court prosecutors from the law, practice and litera­ patriae) in promoting the child's welfare. Proceed­ ture 3 of juvenile courts in the pre-Gattlt era. This ings "on behalf of the child" could often be insti­ was consistent with other implications of the pre­ tuted by "any reputable person," but it generally vailing "social-service" view of the juvenile court, fell to the probation officer to investigate and according to which proceedings were to be informal actually "prosecute" the petition in court. 1 The and noncriminal. But these views and pra~tices probation officer, too, had a dual role: to "represent were severely undermined by three decisions-Kent the interests of the child" before the court, and to 11. United States/I In re Gallit 5 and I1z re Winship 6 "furnish to the court such information and assis­ -in which for the first time the Supreme Court tance as the judge may require." 2 Because the considered the constitutional validity of juvenile proceedings were conceived to be in the child's court proceedings. Athough in a fourth and most interest, no conflict was apparent between these recent decision-McKeiver v. Pennsyivtmia 7 duties of representing the child and helping the State (court). The probation officer (like, occasion- a See Feldman, Tho ProseCflfor's Special Tasks ill ]1Il'Bllile Detillqllellcy Proceedi1lgs. 59 Ill. B.J. 146 (1910). 1 See, e. g., Illinois Juvenile Court Act of 1899, !i§ ·1 and 6. -1363 U.S. 541 (1966). In many courts. however, police prosecutors, whc) are not 5387 U.S. 1 (1967). lawyers, perform the prosecution function. 6397 U.S. 358 (1970). 2 Ibid. 7402 U.S. 528 (1971).

8 9 ( 1971) -a changed Court declined to expand the dent's Commission Task Force on Juvenile Delin­ juvenile justice process as well, such as in the prosecutorial functions which may conflict with th "constitutional domestication" of juvenile courts, quency and Youth Crime: investigative phase and in prehearing and post­ !udge's fact-finding role of impartiality and neutral~ and indeed cast some doubt upon the reasoning of A related problem concerns the presence of coun­ hearing proceedings and actions. Legislation in the It~. Thus, an Ohio juvenile court judge noted the three prior decisions, it is clear that the tradi­ sel for the State. To the extent that the presence of post-Gattlt era has also frequently expanded such With reference to cases in which defense counsel tionally-conceived juvenile court has been changed counsel for the child (or the parent) in contested procedural requirements. As a result, large blocks parrici po,' tes : irrevocably. adjudicatory proceedings is based upon or would of intricate rules developed originally in the field result in a closer approximation of the adversary of criminal procedure, and rooted in notions of . In 5:1Ch contentious hearings the Judge is in an system, the presence of counsel on the other side B. THE POTENTIAL IMP ACT OF adversariness have come to be applied in some ImpOSSIble role arrd reluctant as some of us are to may be necessary to achieve the virtues of that sys­ abandon our traditional hearing practices it is GAULT ON THE PROSECUTOR'S form to the conduct of juvenile court proceedinas tem. Using the public prosecutor may be too great ~ecoming increasingly evident that this is necessary ROLE a departure from the spirit of the juvenile court. ~ro~ ~n:estigation to parole. For example, in ma~y to many cases and we will be required to call upon But experience may show some legal representative JunsdlCtlons, the often essential but extremel the prosecutor for assistance in more cases than we Although it has not been possible-to judge the · d . Y 12 of the public, perhaps the corporation counselor a c~mp 1Icate reqUlrements of the Fourth, Fifth, and have in the past. 1 precise impact of Gattlt upon the role of prosecu­ lawyer from the welfare department, to be desirable SI~th Amendments, regarding arrest, search and o tion in juvenile court, our study indicates that the in many cases. seizure, stop and frisk, detention, non-testimonial The mixing of prosecutorial with judicial roles following propositions are true: 1) There has been has ~iven rise to several court attacks upon the Aside from the impact of defense counsel in identifications, and interrogations have been full a growing ~ecognition, and appropriately so, that l' d . . IO y practice. For example, in Rhode Island, an attack juvenile delinquency cases, according to the post­ app Ie to Juvell1le delinquency cases. Further some legally-trained person must be available to upon the system under which the judge performed. Gattlt, "due process" view of the juvenile court, it ~he tech~ical requirements for criminal complaints: represent the state in many juvenile court proceed­ ~he "prosecutorial" function of screening cases at is no longer possible to conceive of juvenile court lO~ormatlO~s, and indictments are typically now ings; 2) in part, this stems from recognition that Intake, and then proceeded as judge to hear "a proceedings as involving a single interest-the b~mg apphed to juvenile complaints or petitions. the assumption of prosecutorial roles by the proba­ charge which he has approved" resulted in. child's. Until, at least, the adjudicatory stage has Fmally, ~dult re~uiremerits on standard of. proof tion staff or the juvenile court judge creates unde­ invalidation of that procedure on grounds of due ended, the Constitution requires procedures which and ~uallty of eVIdence are also increasingly being 13 sirable role conflicts; 3) increasing requirements process. Recent cases in California have estab­ recognize that distinct and possibly conflicting apphed and more liberal discovery of evidence for prosecutors in juvenile courts is reflected in 11 lishe~ the invalidity of a procedure whereby the interests are involved. The State has an interest in being ordered. The implications of these develop~ trends in both proposed and recent legislation; and hearmg referee was permitted to conduct the taking jurisdiction over appropriate juvenile sub­ ments for the prosecution function in juvenile court 4) there is now a substantial and increasing use of p~titioner's case (examining and cross-examining jects, on two grounds: to protect society from h\tve been substantial, and will be even more sub­ professional prosecutors in juvenile court. Witness, entering objections, etc.), while simultane­ threatening cO[1duct and, as parens patriae, to stantial in the future. 1. Recognition of the need for legally trained ously acting as an "impartial" fact-finder, in which promote the juvenile'S welfare. The child, .on the ~g.gressive defense of the child's interest in state representatives. Even before Gault was role he ruled upon motions and objections made other hand, has an interest in avoiding inappro­ avoldlOg adjudication is now taking such "techni­ decided, a judge of the New York Family Court by himself and by opposing counsel.14 In other priate or unnecessary juvenile court proceedings, ,l'" cal" forms as suppression of illegally seized evi­ pleaded in an opinion that the absence·of a prose­ jurisdictions, attacks on such procedures have not stigmatic adjudications, aad other ~onsequent ~ence or defective witness identifications, demands cutor resulted in an imbalance which favored been successful/5 but they may well be in the future deprivations. This recognition of potential adver- ~or p~obable cause hearings, and objections to the respondents over petitioners, and placed an undue sari ness in juvenile court proceedings was expressed suffiCiency of proof. Without any legally trained burden on the court to assist the latter: 12 Whitla~ch, The Gall~t Decisiol1: Its Effect all the Office of in the Court's application of various procedural prosecutor available in the juvenile court to pre­ the ProseClltmg At/Oriley, 41 Ohio Bar J. 41, 44 (Jan. 8, 1968). . [T]he present law results in a paradoxical situa- protections drawn from the Constitutional require­ sent ,th.e State's response to such objections, the S:e also comment to Rule 24, NCCD, Model R1Iles for jlwe. tion. The criminal courts are increasingly required State s Interest may not be represented adequately mle COIl~ts (1969); Children's Bureau, Sfand;mls for juvellile ments in criminal proceedings: rights to counsel and FamIly CO~trts (1969) at ;3; Skoler, COllllsel ill Juvellile to secure counsel for defendants so that their rights unless the J' dg b" ' notice, cross~examit:lation, confrontation, a high u e compensates y actmg as prose- COllrt Proceedmgs-A Total Criminal jllStice Perspective 8 will be protected in actions brought by prosecuting J,Fam.L. 243 (1908). ' standard of proof, and to the privilege against sel£­ ~utor. When the latter occurs, as it has in many officers representing the people. The Family Court, mstances, other problems arise. . 13 M~tter of Rei!, R.T. Fam. Ct., (decided April 14, 1970), on the other hand, provides counsel for defendants incrimination. In 7 Cnm. L. Rptr. 2152, (May 20, 1970), 2. Impact of no prosect/tor upon probation and no personnel or machinery to assure th~ ade­ Further, and possibly of even greater importance, A 14 R. v. SlIperior COllrt, ~pp., 97 Cal Reptr. 158, 19 Cal. quate representation of cases against minors even many lower court decisions since Gault have offi:cer and 1ttdicial roles. Commentators have pp. 3d 895 (1971); Gloria M. v. Sllperior Coltrt, App., 98 Cal. Rptr. 604, 21 Cal. App. 3d 525 (1971). when they are charged with acts which would con­ expanded the Gat/lt rationale by requiring expanded pOinted O~t tha~ because of the absence of prose­ stitllte a felony if committed by an adult.S cutors the Juve1l11e court judge is "forced" to assume Ct 1~see In re Potts, .14 .N.C. App. 387, 138 S.E. 2d 643 (N.C. procedural safeguards for other aspects of the . p~., 1972) (reJectJOg argument that absence of prosecutor Similar feelings were echoed in 1967 by the Presi- forced Judge to serve as prosecutor since judge acted in fair 10 S6e gellerlllly Fox Th La f . ;J President's Commission on Law Enforcement and Admi:" !hell (1971). ,e l/J 0 ]rwelllle COllrts ill a NIIt· manner) and; State v. Rush, 13 N.C. App. 539 186 S.E. 2d 8111 re Lang, 44 Misc. 2d 900, 905, 255 N.Y.S.2d 98;, istration of Justice, Task Force Report: Jllvenile Delinquency 11 Ibid. ~95, (N.C. ~t. App., 1972) upholding active but "fair" ques­ 992-93 (Fam. Ct. 1965). and l'oltth Crime (1967) at 34. 0; tlonmg of witnesses by judge.

10 11

h , .! .,,I .-...... ------.---~-- ._-- -~-- 3 COllrt Act made no mention of a prosecutor,25 the tion. '1 He may also mOve for the entry of consent request or consent.21 In some states, au.thority for if a judge's action reflect a clear conflict of interest. Children's Bureau Standards for Itwelli!e find decrees, and for the reinstatement of a petition if professional prosecution is found not m statutes, 3s There has also been adverse comment upon the Family COllrts l promulgated in 1966, recommend sllch a decree is violated. He also represents the but in court rules,22 or in the "inherent power" ~~ assumption of prosecutorial roles by giving the court discretion to use an attorney for state at the adjudicatory and dispositional hearings, proba~ion o~­ juvenile court judges to procure needed assistance:~ the state in order to avoid the adoption of conflict­ and upon appeals. cers, upon the ground that this conflictS wIth t~eIr Statutes which do provide for mandatory or dIS­ ing roles for the judge.20 The Uniform Il1veNile duty to assist the juvenile and his family at ~arlO~s cretionary participation by prosecutors i~ juvenile Other recent model legislation, proposed by 10 COllrt Act of 1968 also provides for a prosecuting stages of the proceeding. In a recent Caltforma court proceedings typically offer few detaIls the Professor Sanford Fox, also envisions a prosecutor o~ attorney's participation at the adjudicatory stage at case the court rejected an attack on statutory who is fully integrated into the court process from nature or scope of such participation. :x'hile. a the court'S discretion,27 and so do the 1969 grounds upon the court's discretion to permit the statute may restrict the categories of cases m whl~h the time of intake through disposition,30 N.C.C.D. Model Rides for IltveJ1,ile COllrtsl in probation officer to act;' prosecutor. In doing so, the judge is authorized to request prosecutortal Recent legislation in such jurisdictions as the "complex cases." 28 In all three model laws cited participation (e.g' to delinquen~y ca~es,. to con­ the court adopted the vit:w that even as "prosecutor" l above, the prosecutor's participation: a) is discre­ District of Columbia, Vermont, Minnesota and tested cases to cases where the JuveOlle IS repre­ the probation officer was acting in the "best inter- tionary with the court, and b) apparently com­ \'{Tyoming has also provided for a mandatory, active • 17 sented by etc.), no criteria for guiding the 37 ests" of the mmor. c~unsel, mences only at the trial stage. By contrast, the 1969 and fully integrated attorn'ey for the State. Much court's discretion, such as the complexity of the 3. Trends in. proposed and recent legislation. A • 2·1 Children's Bureau Legislati'lle G/lide for Drafting of this legislation has been influenced by the above­ case, for example, are glVen. review of juvenile court legislation currently i~ Family and Itwenile Court Acts prescribes a prose­ described Children's Bureau Legislative Guidel bu.t There is recent evidence, however, based upon force across the nation discloses considerable van­ cuting attorney whose role is mandatory, and whose some, likt.: the District of Columbia statute and newly enacted and proposed rules and st~tute~, that 29 ation among the jurisdictions on the question of participation in the process begins at court intake. court rules, carry the notion of prosecutorial partici­ there may be a. decided trend in the ~lre:tlOn .of Although the probation officer conducts the "first pation and control to new lengths. The District of prosecution. About half of the states' .laws still increased utilization of prosecutors tn Juventle reflect the traditional, pre-Gault conceptIon of the court. At the same time, it is clear there is little level" screening of complaints and recommends Columbia's juvenile court rules, which were sub­ juvenile court by their silence on t~e subj~ct of agreement on the precise nature and definition of to the prosecutor that petitions be filed or not filed, stantially modeled upon the Federal Rules of the latter has final, unreviewable discretion on the prosecution, although they will aSSIgn partlcula.r his role. Criminal Procedure, articulate the prosecutor's role prosecutorial roles, such as preparation of the pen­ The major legislative models which have been matter. All petitions must be prepared and counter­ \vith great precision a1)d detail. Thus, not only does tion, or presentation of the evidence, to the proba­ proposed fro111 time to time over the past d:cade signed by the prosecutor, who may take into the law expressly assign to the prosecutor all the tion officer or judge.ls In at least nine jurisdictions, show significant movement toward. a system lOCO:­ account both the legal sufficiency and the desirabil­ duties and prerogatives outlined in the Children's porating a professional representative of the stat: s the partiCIpation of professional prosecutors, ~t ity of such action. The prosecutor is required to Bureau Legislative Guiciel but in addition, he con­ !9 . d ~O least in certain kinds of cases, 1S man atory. interest. Thus, while the 1959 Standard IIt'velUle represent the petitioner "in all proceedings where trols or influences such matters as police applica­ And in eleven jurisdictions, such participation 21 In at least one jurisdiction, Arkansas, the chief probation the petition alleges delinquency, neglect or in need tions for arrest ("custody") warrants,38 the court's , t'o b)' the prose· · 'le court's discretionary fficer is also empowered to request prosecu I n of supervision," 30 implying his appearance at all decision whether to proceed by arrest or summons,39 depends upon t h e Juvenl °cutor Ark. Stats. Ann., Tit. 45, § 45-217 (1968): In foulr • . IS mere Y jurisdictions, the county or prosecuting attorney . pre- and post-trial hearings. He is given the power HI Children's Bureau, Slalldardl for IlIt'elljle all~ Family listed as one of the "persons" entitled to file, or authortze th~ to make motions for transfer of cases to criminal COllrls (1969) at 73; NCCD, Model Rules for IIU'elll/e COlirts, filing of, petitions. Idaho Code Ann., §16-1807 (Sup~. 197;) I 34 Id., at Ii 52. 2323 (1969)' Neb. Rev. Stats., § 43-_05 court,3! as well as motions for medical examina­ 35 § Comment to Rule 24 (1969). d Iowa C0 d e A nn., § . , 64 F I er Id., at 33. 17 III re Slet'ell C., App., 88 Cal. Rptr. 97, 9 CaL App. 3 (1968)' N.H. Rev. 6tats. Ann., § 169.3 (19 ). 'or on tions,32 for continuances,33 and to amend the peri- 30 Fox, Proseclltors i/l the jl/venile Court: A Slall/tory Pro­ states ;ith discretionary use of professional prosecutors, see 255 t 1970). posal, 8 Harv. J. Leg. 33,37 (1970). IH Conclusions based upon a general review of juvenile court n. 24, ill/ra. I Minne· !J7 See D.C. Code, Tit. 16 c. 23, §§ 16-2301 et. seq., and 22 This is true in New Jersey-see n. 19, sllpra. n ., statutes in effect on July 1, 1972. . NCCD, Standard Ifl/lenile COllrt Act (1959). D.C. Rilles Got'emillg juvellile Proceedings; Vermont Stats. sota although the statute provides for the prose:utor's partl~I~;' 25 III In New Jersc}', for example, the prosecutor·s. partl:ipati~n Ann., Tit. 33, §§ 645 et. seq. (Supp. 1972); Minnesota legis­ cion' at the court's discretion, Minn. Stats. Ann. §§ 260-155 G ,: 20 Id., at 73. is mandatory "where the complaint charges the Ju.veUlle \~,lth 1 ot lation and rules cited SIIpra, n. 22; and Wyo, Stats. Ann., §§ the court rules make his participation mand~tory. RII es b _ 21 National Commission on Uniform State Laws, UlIiforrn causing death." Nell' Jerse)' jm'ellile and DomestIc RelallollS . P d' ill j\fl/lllesota Pro ale 14-115.12 (Supp. 1972). emillg jlll'elllie COllrt rocee mgs jllvellile COllrt Act, § 24 (b) (1968). COllrt Rilles, Rule 5:9-1(d) (1972). 38 'the juvenile prosecutOr in the District of Columbia, who jllvellile Coltrts, Rule 5-2 (1973). C W h' gton 28 NCCD, AIodel Rules for juvenile COllrts, Rule 24 (1969). 20 § is the Corporation Counsel, musr approve police applications Besides New Jersey Rilles, ibid., see: D.C. Code Ann., 23 See III re Lewis, 316 P. 2d 907 (Sup. t. as tn , 16-2301 ct. seq. and the Rilles GOI·eming jm'euile COllrt Pro­ 20 Children's Bureau, Legislative Gllide fnr Drafling Family to the court for arrest warrants (District of Columbia Code al/d Juvenile COllrt Acts, §§ and (1969). Ill. § 1957). 681 (l97?)' Colo. 13 14 § 16-2306 and Dislricl of Collllllbia Superior COllrt Rules, ceedillgs (1972); Ann. ScatS_ ch. 37, 701-21. (1972); 24 See, e.g., Calif. Welf. & Inst. Code, § • -, e § (c). Minn. Rules of Procedllre for Jut'Buile COllrt Proceedl1lgs, Rule ?2-8-4 (1964)' Kans. Stats. Ann., § 3S-815( ) 30 Id., at 14 Rilles Governing juvenile Proceedings (hereinafter cited as S ts § R ev. ta ., • - , 4 K' 'Consol 3~ Id., at § 31. 5-2 (1973); N.M. Scats. Ann. §§ 13-8-23, -24, & -~O (Supp. 1972); N.Y. Fam. Ct. Act., § 25 (Mc Inney s § D.C. Ru'les) Rule 4 (1972). (1968)' Tenn. Code Ann. § 37-224 (Supp. 1972); Tex. CIV. Laws, Bk. 29A, Part 1, Supp. 1972); Okla. Stats. Ann., ' 32 Id., at §§ 30 and 40. 39 The prosecutor may request arrest ("custody") instead of Stats. A'nn., Tit, 43, Art. 2338-1, ~ 7 (Vernon's 1971); Vt. 10-1109 (c) (Supp. 1972); S. Dak. Laws, § 26-8-22.4 (Supp. 33 Id., at § 49. summons procedure (D.C. Rule 9; 1972). Stats. Ann., Tit. 33. § 645 et. seq. (Supp. 1972); \Vfyo. Stats. 1972) . Ann § 14-115.12 (Supp. 1971). 13 12

.\l ,j - '.':'"'1 "- -.-----~---- !'1 I

quency cases where the charges were denied.~O :n The initial sample to whom the survey was sent traditional practices with lawyers playing a mini­ juvenile detention,4o bail hearings,4tsr~babl.e. caus: 4 1970 Professor Fox cited a 1969 survey of 53 JUr1S­ consisted of 417 judges. A portion of these ques­ mal role. hearings;'2 and pre-trial conferences, dlspOS1t10ns, dicti;ns, in which responses were receiv~d frol~ 4~. tionnaires (50 or 12 % of the mailing) were The present survey was conducted with the ·IS nd discovery ·IG He expressly controls sub poenas a, d In 36 of the responding jurisdictions, It was mdl­ returned undelivered or could not be completed by intention of obtaining data in the following areas: initial decisions to join and sever offenses an cated that an attorney appears on behalf of the the addressee judge (some judges indicated that 1) the amount of defense counsel involvement in offenders for trial/7 and, unlike his counterpart state "in some cases." 51 In these surveys, it was not they no longer sit in juvenile proceedings, some juvenile proceedings; 2) the nature and scope of under the Children's Bureau Legislative G1tide) .~e often clear what criteria governed when prosecutors only occasionally heard juvenile cases, and several attorney repesentation for the state in juvenile pro­ has power to veto adjustment by consen~ d~cree .. would appear, but the reasons given in the 1963 were deceased) thereby resulting in an adjusted ceedings; 3) the division of court functions and 4. Current utilization of prosecutors 10 Juvemle Skoler and Tenney survey were as follows: sample of 367 juvenile court judges. the prosecutor's role; and 4) the views of juvenile The survey was conducted through the use of court judges concerning the expanded use of lawyer­ courts. 'b d Among judges reporting occasional appearanc.es The statutory and rules development just de~Cf1 e prosecutors in juvenile courts. by states attorneys or prosecutor personnel, the ~Ir­ a live-page questionnaire organized to facilitate does not begin to reflect the rapidly increasmg use cumsmnces or types of cases most frequently Cited electronic data processing of the responses. The 1. Defeme cO/Inset involt'ement in 11tvenile of prosecutors in the juvenile courts. In. 1964, were contested matters (15 responses), adult cases questionnaire requested basic demographic infor~ proceedings. As recently as 1963, 89% of big-city Daniel Skoler and Charles Tenney, reportmg :he such as contributing to delinquency (8 response~), mation about the court, information about the juvenile courts reported that juveniles were repre­ . 1 d' speCific results of a national survey conducted a year earlier, 'serious matters' (9 responses, mc u Ing . nature of prosecution and the use of lawyer-prose­ sented by counsel in fewer than 25 % of all delin­ identification of homicide or capital cases. m 3 cutors, and the judges' views of the lawyer­ quency proceedings. In almost 60 % of these courts, stated: . ces) and cases involving possible waiver or instan " , "Q prosecutor's role and the adversary quality of juve­ juveniles were represented in less than 5 of Responses indicated that a state's attorney, coun~ transfer to adult court (4 responses) % .o~ 55 attOrney, or local prosecutor appeared regul~r1y 111 nile court proceedings. delinquency cases. Of equal interest was the finding '15(;' of the reporting courts and occasIOnally a b out ,r . .19 C. THE CENTER'S 1972 Responses were received from 137 judges or that in only 4% of these urban courts were juve­ in over 60% of the reporting courts ... 37.3 % of the revised sam pIe, representing 68 of niles represented in more than 5 % of delinquency NATIONAL SURVEY GO These percentages began to increase even more the original 100 cities (68%).56 Two samples cases. In an effort to obtain both a more current shortly after Gault. For example, in 1968, Jud~e ' a~d were drawn from the respondents for purposes of A similar survey, conducted in 1966 in coopera­ comprehensive picture of the state of juventle \V/. G. Whitlatch reported that 23 out of ~8 O~lO analysis. Attitudinal data were analyzed and tion with the President's Commission On Law prosecution in the United States, as well as. the juvenile courts surveyed used prosecutors 10 del1O- reported for all 137 respondents. Data concerning Enforcement and Administration of Justice, pro­ views of juvenile judges towards the role of Juve­ the present state of juvenile court prosecution w.ere vided a picture of juvenile court defense counsel ~-'-'-- .. . " of notice and the GO .10 The prosecutor gets ?rompt notice W' S nile prosecution, the Boston University Ce~ter f~r analyzed in terms of the 68 cities covered in the participation which was virtually unchanged. f (D C Code § 16-2311; 1970 est s upp. reas.)ns t h ere are .. 9 2) He a ears at Criminal Justice conducted a survey of . J~1Venlle returns. Where multiple responses were received Vol implemented by D.C. Rule 105: 1 7. 'PPD" Taken together these two surveys suggested that det~~tion hearings to represent the interests of . the IStriCt court judges in the Nation's 100 largest CltleS dur- for a city, a single, averaged response was developed not only was the frequency of defense counsel {D.C. Code, § 16-2312; 1970West's Supp. Vol., Implemented ing 1972. for analysis. These two samples, (of 137 and 68 involvement dismally low in most big-city courts by DC. Rule 107; 1972). . The sample was drawn from the mo.st rece~; .11 Dy implication from his role in detention p~oceedtn¥s, the respectively) are reflected in the tables and analyses in the years immediately prior to the GaNlt deci­ rosecucor is similarly involved in bai~ pr~ceedlng.s. ThiS role edition of the Juvenile Cottrt ltulges Dtrecto~y: that follow. sion, but that this condition was uniform through­ ~un also be inferred from the juvenile s [lght to Interlocutory All judges listed as serving in the 100 .1ar~:st cltleS appeal in these matters (D.C. Code, § 16-2327; 1970 West s In the 1963 survey of juvenile courts in the 75 out our major cities and was not improving, . 1 ded in the sample The 100 cmes were Supp. Vol.). . t were inC u . 54 largest cities in the United States conducted by The information submitted in response to our 42 The prosecutor must show probable cause If the cour derived from the 1970 census figures. The large.st Daniel Skoler and Charles Tenney, which was survey reveals, however, that in the years since decides to detain the juvenile (D.C. Code, § 16-2312(e); 19~10 city, New York, had a population of over 7.8 0111- wr 's Supp Vol.)· however there is n<:>; need to show proba e described earlier, the authors concluded that "First, Gatttt) there has been a marked increase in the fre­ west . I 6-2308' 1970 West's lion and the smallest in the sample, Newport News, and perhaps most significant, the attorney remains quency of juvenile defense counsel representation. cause at arraignment (D.C. Code, § 1 , y Supp. Vol.). Virginia, was listed at 138,000. The Dir.ector a stranger to the juvenile court." 57 Their survey Judges were asked to estimate the frequency with ·13 D.C. Rule 17.1 (1972). ie1ded the names of 417 juvenile court Judges revealed that while judicial attitudes toward which juveniles in their courts are currently repre­ 44 D.C. Rule 15 (1972). YO' . 45 D.C. Rule 17 (1972). serving in those 10 cmes. attorn~y involvement in juvenile court proceedings sented by counsel. They were requested to make ·IGD.C. Rule 16(c) (1972). had become far more positive than in previous 50 Whitlatch, The Galiit Decision: lis Effect Oft the Offic~ ~f separate estimates for neglect and dependency 47 D.C, Rules 8, 13. and 14 (1972). tbe Prosecutillg Attorlley, 41 Ohio Bar J. 41, 43 (Jan. 8, 19 p:o' years,58 large urban courts continued to reflect cases, cases involving misconduct of a non-criminal 4RD.C. Code, § 2314; D.C. Rules 10, 104 (1972). Compare 51 Fox, Prosemtors ill tbe juve/lile Court: A StaMtory . Children's Bureau, supra, n. 29, at § 33. . . posal, 8 Harv. J. Leg. 33, 37 (1970). , 05 A copy of the questionnaire is included in Appendix A. 5D ld. at 81. 411 Skoler and 1'enney, AttOrlley Representation m jllve~ltle 52 Skoler and Tenney, supra note 49, at 83. . rl ' e :~ See Appemlix A for a list of cities included in the survey. (JO President's Commission on Law Enforcement and Admin­ O/lr.t 4 .•..Fanl L 77 , 83-84 (1964). This survey queStlon-.. G3 National Council of Juvenile Court Judges, juvellli COli , C J Skoler and Tenney Sflpra note 49 at 96 istration of Justice, Task Force Report: juvellile Deliqllel1cy !laire waS sent to judges in courts serving the 75 largest cmes 5Sld., at 88-89.' ,. Jt/dges Directory (1972-73). . . a/ld Youth Crime (1967) Appendix B, Table 16, at 82. of the nation, and received responses, apparently, of nearly one (54 Tbe lfIorid Almallac (1972 edmon). hundred per cent. 15 14 TABLE I.-Percent of Cases in Which Juvenile is Represented by Attorney at Adjudication (68 Cities) TABLE 2.-Years During Which Regular Use of Attorney­ Prosecutor Began (68 Cities) TABLE 4.-Appearances of AttorneY·Prosecutor (68 Cities) 25 percent- 50 percent- Over 75 100 Number Under 25 Years Appears None percent 50 percent 75 percent percent percent response Total Number Percent Number Percent Case type Before 1960 Automatically Num· Num· Per· Num· Per· 19 (27.9) 44 (64.7) Num· Per· Num· Per· Num· Per· Per· Num· Per· Num· Per· 1969-1967 .. At court's request 16 19 (27.9) ber cent ber cent ber cent ber cent ber cent ber cent ber cent ber cent (23.5) At discretion of prosecutor 1967-1972 . 29 1 (42.6) No attorney. prosecutor (1.5) Neglect and No attorney·prosecutor _.. ~ ...... 4 (5.9) 4 (5.9) Total . ___ ..... _._ ...... ___ ._ ... __ . ___ .. __ ... _. Total dependency .. 0 (0.0) 25 (36.8) 9 (13.2) 3 (4.4) 25 (36.8) 5 (7.4) 1 (1.5) 68 (100.0) 68 (99.9) 68 (100.0) Non'criminal ------(PINS) _.• 0 (0.0) 25 (36.8) 7 (10.3) 3 (4.4) 26 (38.2) 7 (10.3) 0 (0.0) 68 (100.0) prosecutors did not begin until after the Supreme almost % of these COurts regularly use prose­ Delinquency ?5 (felony) ___ ._ 0 (0.0) 3 (4.4) 16 (23.5) 7 (10.3) 34 (50.0) 8 (11.8) 0 (0.0) 68 (100.0) Court decision in Galllt (Table 2.) cu~or~ I~ sOl~e capacity represents an important shift In Juventle court practices. 1 Delinquency Although six cities (8.8 %) draw their juvenile (non·felony) 0 (0.0) 15 (22.1) 16 (23.5) 5 (7.4) 25 (36.8) 7 (10.3) 0 (0.0) 68 (100.0) court prosecutors from the staffs of the city solicitor Judges from jurisdictions where prosecutors do or corporation counsel and thirteen cities (19.1 %) ~Ot automatically appear in juvenile court proceed­ utilize a special juvenile court prosecutor, the vast Ing~ stated their criteria for requesting his partici­ nature (PINS cases), delinquency based upon a which continue to exist in many courts, attorneys majority of cities (44 or 64.7 %) employ the ser­ patIOn. As shown in Table 5, the judges' responses I felony or serious crime. In sharp contrast to the are clearly playing a far more prominent role in vices of prosecutors from the office of local district tended to fall into three somewhat related cate­ pre-Gt11Llt data, our survey reveals that counsel juvenile proceedings than they did just a few years gories. Most often cited are cases which are of an 61 or county attorneys (Table 3). representation of juveniles has increased dramati­ ago. As subsequent data reveal, this expansion of adversary nature-that is, those which are COn­ cally. Before Gfwit only 4% of our major cities defense counsel presence has had a significant TABLE 3.-Type of AttorneY·Prosecutor Used (68 Cities) tested and lor where the juvenile is represented by indicated that more than 50% of juveniles were effect on the growth of attorney representation for Type counsel (37.2 % ). Cases which involve serious represented in delinquency cases. The results of our the state. Number Percent District or county attorney .. _.... _ '. 44 misconduct and include the possibility of severe (64.7) survey reflect that in 61.8% of the responding 2. Scope and llat1tl'e of attomey-pro5eC1ttion. The Corporation counsel 3 (4.4) court ~ction ~re mentioned next (30.0 %). Finally, cities, more than 75 % of juveniles in delinquency 1963 survey by Skoler and Tenney showed that Special JUVenile Courtp~~~ecutor::: 13 City solicitor (19.1) cases Involvl.Og complex issues of fact or law are Law student .. -.... -.... -...... ~ ..... -.... 3 cases based upon a felony or serious crime are the state was represented by an attorney-prosecutor (4.4) seen as warranting the presence of a professional (1.5) represented by counsel and that in 47.1 % of these on a regular basis in only about 15 % of the 'No attorneY.~~~s~~~t~~-.··········--·· ~ prosecutor % ) . (~.9) (17.1 Nation's metropolitan courts,62 The Task Total _ _._ .... 68 cities, over 75 % of juveniles are represented by 1967 (100.0) Judges were asked to estimate the percentage of counsel in delinquency cases based upon non­ Force Report concluded that prosecutors do not 63 cases where the state is represented at th adjudica­ felonies or less serious crimes. In PINS and neglect appear in mOst ju venile courtS. The foregoing data reveal a continuing move­ tion hearing by a lawyer-prosecutor. As for defense cases, 48.5 % and 44.2 % of responding cities, Our data indicate that in most large city juvenile I)' ment during the past decade toward the regular counsel participation, judges were asked to make respectively, report representation at a rate greater courts, lawyer-prosecutors are now regularly util· use of legally trained prosecutors in juvenile COurt separate estimates for each of four major categories than 75 % (Table 1). Of these categories, the ized. Of 68 responding cities, 64 (94.1 %) replied and that, .spurred perhaps by developments since of cases. The results are contained in Table 6. greatest representation occurs, not surprisingly, in that a lawyer as prosecutor or state's representative Gault} thiS process is neady complete insofar as In delinquency matters based on felonies or serious delinquency matters. makes regular appearances in ju .,enile court. Of Our large metropolitan courts are concerned. Of serious crimes, 57.3 % of the cities reported that It should be noted, however, that full representa­ the responding cities, 19 (27.9%) stated that the course~ these data, alone, do not suggest the extent attorney-prosecutors appear for the state in more tion of juveniles is still not ~ reality in many of use of lawyer-prosecutors began prior to 1960, 16 t~ which lawyer-prosecutors are involved in juve­ than 75 % of adjudication hearings. For less serious our large cities. More than one-third of the cities (23.5 %) stated that lawyer-prosecutors were ?Ile proceedings in the various cities. For example report that fewer than 25 % of juveniles in neglect introduced between 1960 and 1967, and 29 ~n approximately one-third of the cities, appearance; and PINS cases are represented. Even in delin­ (42.6%) indicated that the regular use of lawyer· y lawyer-prosecutors are not automatic but rather Criteria Number Percent quency case-", the rate of attorney representation in 61 A recent nationwide survey identified almost 350 legal u;on the c~urt's. request (Table 4). The use of Serious offense _ 19 (27.1) many cities is very low. In 27.9% of the cities, less services offices and private attorneys who have substantial juve· Contested cases __ _. __ . p ~secutors In thiS group of cities, although charac- 13 (18.6) JUvenile is represented .. _ than half the juveniles are represented in serious nile law practices or are engaged in juvenile law test cale tenzed as "reg l" b . 13 (18.6) E u ar, may e relatively infrequent. Complex issues . __ . litigation. Juvenile Justice Standards Project, Institute of Judi· 12 (17.1) delinquency cases. In 45.6% of the cities, less than At prosecutor's request. cial Administration, New York University School of La\\,. ven when prosecutors "automatically" appear for 11 (15.7) half of the juveniles are represented in less serious Jltt'elliie Law Litigation Directory (October, 1972). the ~tate, their involvement may well be limited to Commitment possibility _'. ~ ... __ .. 2 (2.9) delinquencies. 6~ Skoler and Tenney, supra note 49, at 83. Total .. _... _...... _•..... _. ___ .... ~ .. _.. _.. . 70 b (100.0) 63 Task Force Report: Jllvenile Delinq1lency and l'olllh' particular categories of proceedings and their role a Responses are reported from 39 judges In 20 jurisdictions Nevertheless, in spite of serious inadequacies Crime, s1lpra note 60, at 5. may well be circumscribed. However, the fact that where prosecutor does not automatically appear. b Multiple criteria were indicated by some Judges. 16 17 t TABLE f C in Which State is Represented by Attorney·Prosecutor__ffi() at Adjudication__ (68 Cities) I 6.-pen:en~o~~a~se~s:':~=~:;:::":':':':~~~==_-;::;=-:- N"-;-_____ shared between the two (10.3 %) .65 When deten­ -----~-- Under 50 percent 50 percent Over 100 No hearings and in the armngemenc of consent decrees. tion hearings are held, the prosecutor represents None 25 percent 25 percent- 75 percent 75 percent percent Response Total In each' of these areas, however, a substantial Case type the srate in less than half of the hearings. In one­ ~ Num• Per· Num· Per- Num· Per- N um- Per· Num· Per- Num- Per- Num- Per- Num-b Per·t number of jurisdictions either failed to respond to ber cent ber cent ber cent ber cen third of all jurisdictions, respondents indicated that t ber cent ber cent ber cent er cen the question or indicated that "no one" performed "no one" represented the srate at detention hearings. Neglect and the function. Approximately 14% of the jurisdic­ dependency 5 (7.4) 24 (35.3) 5 (7.4) 1 (1.5) 29 (42.6) 3 (4.4) 1 (1.5) 68 (100.0) b. Preparation aluL ret'iew of the petition tions queried abOut motions and 16% of those Non-criminal (Appendix B) Tables 5,6). The lawyer-prosecutor queried about probable cause hearings indicated (PINS) 5 (7.4) 36 (52.9) 4 (5.9) 2 (2.9) 18 (26.5) 3 (4.4) a (0.0) 68 (100.0) also currently plays a small rote in the preparation "no one", or more frequently, made no response. Delinquency of petitions in the cities responding to the survey. (felony) 4 (5.9) 13 (19.1) 7 (10.3) 5 (7.4) 36 (52.9) 3 (4.4) a (0.0) 68 (100.0) It may be assumed, therefore, t!Jat in at least some In only 15 of the 68 j II risclictions (22.1 %) is this of these jurisdictions, pre-trial motions and prob­ Delinquency part of his responsibility. More frequently, the (non-felony) 4 (5.9) 21 (30.9) 12 (17.6) 3 (4.4) 25 (36.8) 3 (4.4) 0 (0.0) 68 (100.0) able cause hearings OCcur seldom or not at all. -""~ COurt clerk (27.9 %) or the probation officer .. - Indeed, the high percentage of jurisdictions indicat­ (33.8%) performs this task. ing representation of the state at motions and prob­ delinquencies (non-felonies), only 41.2 % of the report less than involvement of defense The prosecutor's expertise in the preparation of 25 % able cause hearings by lawyer-prosecutors is no legally sufficient petitions could be utilized at one dties report prosecurocial participation at a fre­ counsel than they do for prosecution. So, although evidence of the frequency with which those actuaHy quency greater than In PINS cases and those levels of defense and prosecution involvement of two scages. Either he could draft the petition 75%. occur. Empirical study of the Boston Juvenile Comt itself, or he could review it at a later stage. ApI)roxi. involving negJect and dependency, attorney-prose~ show similar variations according to case categories, revealed chat few pre-trial motions were made dur­ c\ltors appear in more than 75 % of cases heard overall, attorney representation of juveniles appears mately one-third of the Jurisdictions (36.8 %) ing 1971. specify that the lawyer-prosecutor reviews petitions in 30.9% and 47 %, respectively, of the 68 to exceed that of attorney representation of the In the area of consent decrees, almost one-haH responding cities. State. for legal sufficiency (slightly higher when juris­ of the sample (44.2 %) failed to respond to the dictions using non-attorney prosecutors, or dividing It should further be noted that with the excep~ 3. The diz·ision of court functions and the question or indicated that "no one" represented the this task between prosecutor and probation officer don of serious delinquencies, atmost as many or proseC1ltor's role. One section of the qu~stionna.ire petitioner in such actions. It may be that consent are included). large number of jurisdictions more cities utilize p.rosecution in less than 25 % of mailed to juvenile court judges dealt wuh speCific A decrees, or negotiated settlements, are not yet com­ their cnses as those who utilize it in more than tasks within the court (i.e., who reviews a petition either failed to answer the question (8.S %) or monly employed. indicated that "no one" reviews petitions (10.3 75 %. Percentages of cities in which attorney~prose­ for legal sufficiency, or who represents the state at % ) . d. Adjudication (mel disposition (Ap/Hindix B, cutOrs appear in less than of juvenile cases In many jurisdictions, the review is carried alit by 25 % detemion hearings). The purpose of these ques­ Tables 171 181 2()). Questions concerning the the judge (16.2 % ) , the probation officer (11.8 are as follows: serious delinquencies: 25.0%; less tions was to help define the functions currently %), adjudicatory and disposition stages of juvenile pro­ serious delinquencies: 36.S %; PINS cases; 60.3 %; assumed by the lawyer-prosecutor. In addition to Or the clerk 00.3 %). This suggests that fre­ ceedings revealed a diminishing involvement on quently the person drafting the petition, the and neglect and dependency: 44.2 %. defining the "state of the art" at present, the data i.e.,' the part of the prosecutor as the case develops. As clerk or probation officer, also charged with Comparing the dara for defense counsel .and resulting feam these questions are useful in sug· is we have seen above, in the vast majority of cities examining it for legal sufficiency. A situation may prosecutorial participation, several conc1uslOns gesting possible alterations and expansion in the surveyed, a lawyer-prosecutor represents the peti­ emerge. First, attorney participation in urban juve­ exist in which these people have the legal expertise attorney-prosecutor's role. tioner at the adjudicatory hearing. The lawyer­ nile courtS, as bach defense counsel and prosecutor, to make such an evaluation, but it is not an exper~ The full set of rabIes (1-23) is presented in prosecutor's presence at the disposition stage de­ occurs most frequently in serious delinquencies, rise normally required in those roles. Appendix B. In the following section, the discus­ creases markedly (in 48.5 % of the dties he repre­ declines in less serious delinquencies, and is least c. Pl'etl'ialmotio1lS, probable calISe hearings Ilnd sents the petitioner and in another 13.2 % he sion will be confined to those questions which 8,9,14). As prominent in PINS and neglect-the latter cases Co1tSe12t decrees (Appelldix B, Tables shares this function with the probation officer). In bear most heavily upon the prosecutor's role. might be expected, the lawyer-prosecutor plays an being least "adversary" in traditional juvenile law fact, in almost one-Efch of the jurisdictions a. The initial detel1ti01t decision (Appendix B, important role in the area of pre-trial motions, thinking. Second, in almost nIl case categories, (19.1%) no one represents the petitioner at the probable cause hearings, and consent decrees. In more COutts report a higher frequency of attorney Tables 2, 3). The Iawyer~prosecutor plays a very· disposition stage. The lawyer-prosecutor's role of the surveyed cities, attorney-prosecutors representation of the juvenile than attorney repre­ limited role, at present, in the detention decision .. 76.5 % diminishes even further when it comes to recom­ 54 argue motions and, in 73.5 and 42.6% of the sentation of the State. Similarly, fewer courts In none of the responding jurisdictions does the % mending dispositions to the judge. In a small num­ cities, they also represent the state at probable cause tJiTi\~ ~;;i~-ex(cption is in the catc80C}' of neglect cases. where prosecutor review the detention decision ..That ber of jurisdictions (8.8 % ), the prosecutor, alone, rofessionat prosecution should be reduced. state (less than 50% of cases heard) are no more re~~rted end 10 melf. likely to favor a more extensive role for the survey Cities reveal a general balan(;e between the The judges' responses were further examined The second attitudinal question read as toll . attorney-prosecutor than judges in cities with a frequency of attorney representation of the child "A . . , i' ows. according to the existing amount of professional re you 10 favor of having lawyer-prosecutors prosecution in their various cities and in terms of "high" level of prosectltorial participation. In fact, a~~ the state at adjudication hearings. Twelve cltJes (176%) sho . b 1 . represent the state in flli J'uvenile cases>" A " the existing level of prosecution in the various • • I wan 1111 a ance 10 participation f! . d . maJonty the current balance between defense counsel parti­ o t 1e)U ges (55.5 %) felt that lawyer-prosecutors 10' of the prosecution, while in 25 cities cipation and lawyer-prosecUtor participation. These cities, by itself, appears to have little bearing on fav~r sho/tld represent the state in all' '1 analyses were performed in order to determine whether judges in those cities favor a change in the (36.8,0) attorney representation of the juvedile (Table 10). ' )uvenl e cases role of prosecution in their courrs (Table 8) . exceeds that of the state. whether judges' attitudes concerning the need for Those who dissented from that view (43.1 % ) Whereas judges' attitudes toward extending the greater prosecutorial participation in their courts Cities were also divided in terms of the relation­ most frequently dted minor offenses, admitted roleh of prose cutmn. were not materially affected by are associated with current levels of prosecutorial ship bet\veen the frequency of defense counsel offenses, truancy, dependency, incorrigibility, and t1 e. current amOunt of professional prosecution in offenses as case types not requiring the ser­ t 1e1[ courts alan , T bi 9 t~affic TABLE a.-Should Attorney·Prosecutor Playa More Extensive Role? (137 Judges) f ..' e a e shows substantiaL dif- vIces of a lawyer-prosecutor.

_~"""""w" __ erences 10 Judges' re b d I.. sponses ase upon whether or Judges in courts where prosecutor Judges In courts where prosecutor not tLlere IS a baL . 1 A strong relationship appears to be present of . < ,ance 10 t 1e participation levels appears in 50 percent or more of all appears in less than 50 percent of all betw:en the. e~ist~ng degree of professional prose­ Response cases heard (33, or 48.5 percent, cases heard (35, or 51.5 percent, Total prosecution and defense Judges h exhibited b 1 . W ose courts cutorJal partJClpatlOn in the juvenile COurt caseload of 68 cities) a of 68 cities) a . a anced participation by defense and Number Percent Number Percent Number Percent prosecutJon were COnt " ..... of . ent to maintaIn present levels _"'---- TABLE 10.--:-Should AttorneY·Prosecutor Represent the More .. "- ~. 27 (32.5) 19 (35.2) 46 (33.5) in ~~~e~utlOn reg~rdless of the proportion of cases less 1 (1.2) 1 (1.9) 2 (1.5) State 10 ALL Jultenile Cases? (137 Judges) IC prosecutlOn participated in their courts Same 54 (65.1) 33 (61.0) 87 (63.5) On 1 y 225% f' . Response No response 1 (1.2) 1 (1.9) 2 (1.5) . d' . v 0 Judges in balanced systems Number Percent Total 83 (100.0) 54 (100.0) 137 (100.0) .. In Icated a preferen f . wh 4 ce or Increased prosecution ~:s ...... '...... ,... . 76 (55.5) 'Sasec{ upon estimates provided tw 137 Juvenile court judges In delinquency (non·felony). PINS. and neglect/dependency. Case c ereas 2.1% and 468%' ' N ...... ; ...... 59 (43.1) (IS citles of frequency of appearance by attorney·prosecutors in categories were accorded equal value and averaged for each city. balanced' f . ° of Judges in courts o response ...... ,..... ',. 2 lour cllsII categories: serious delinquency (felony). Jess serious (1.4) In avor of prosecution and defense, Total ...... '"' ...... " .. ". 137 (100.0) , 20 " 21 JI ~l 1

cutors in nil juvenile cases. Fltrther, whereas under Judges in courts where prosecutor increased ddense counsel pnnk·jpacion have 11lnccd onc-qtJ:U'ter of the judges in courts having un ndver­ appears in less than 50 percent of on them and other COLlL't personnel. Their support all cases heard (35. or 51.5 Total S,U'y balance recommended nn extension of the for professional prosecutiOl1 derived from an often percent, of 68 cities) a pwseclItor's rolc, two-thirds of these same judges expressed recognition that the very nature of juvc­ Number • - Percent-- NUl~'be~ . P~'~;;-t- approved his participation in all Cases. «, : nile proceedings has chnl1gcd since G(I/Ilt. \'{!hereas In considering this possible disparity in judi­ in previous years, the absence of professional prose­ cial acdtude, two considerations mllst be kept in cution could be viewed as a promincnt int!knwl' mind, First of all, many jmlges, othenvise favorably of the juvenile COUfts "non-punitivc" al'l)j'o

a se::heme based upon the notion that the juvenile T~ the extent that the presence of counsel for the ~ourt prosecutor should not be "conviction minded Chll~ (or .the parent) in contested adjudicatory pro­ but that the child's interest should be' ' ceedings in based upon or would result in a closer I 'd . an impOrtant CO~Sl eratlOn governing his conduct.3 approximation of the adversary system, the presence ' f n one state, Arkansas, an effort has been b of ~ounsel on the other side may be necessary to statute to formulate objectives for juvenile cou:r aclueve the virtue of that system. Using the public I prosecutors: pr~s.ecutor may be too great a departure from the Sptrlt of the juvenile court. But experience may of Duty of pros7cuting attorneys. It shall be the dut show some legal representative of the public, per­ . the prosecutmg attOrneys of this State and their haps the corporation counselor a lawyer from the ~-.. 5 . 1 See , --Fe.g., ox, ProseCtltors i th J . welfare department, to be desirable in many cases. tory Prosectltor 8 H n e tillem/e Court: A Statu- ~1I/es for ltlvo/;ile Co:~~' ~ Leg. 33 (1970); NCCD Model Ident's Commi . s, omment to Rule 24 (1969)' Pres- . ~s .th: national survey indicates, however, most f S;10n on Law Enf ' o Justice, Task Force Re . orc~ment and Administration JU~lsd1CtlOns now utilizing attorney-prosecutors are Crime (1967) at 34 (h po:t. Jtlvell/le Delinquency and Youth usmg staff from district or county attorneys offices. ; Bm ~ee Rubin and S . e~elOafter cited as Task Force Report). ImplicatiOlls for Co ml~, T[ he Fut1lre of tbe Juvellile Cou;t· Furt~er, interviews by project staff with judges in rrectlolla Afanpo d T . . at 15-16 acceptin th .: UJer all rawillg (1968) g e one Jurisdiction suggested that perhaps this should I 2 Whitlatch Th C d/lstnct attorney in this role. , ' e au t D .. . the Prosecuting Atto 4 eC/~/o/l: Its Effect all the Office of 3Pox Slip mey, 1 OhIO Bar J. 41 (1968) : Ark. Stats. Ann., Tit. 45, § 45-217 (1968). , . ra note 1. . Task Force Report, supra note 1, at 34.

27

26 . f ! \ U ,5

nj I be the case for serious delinquency matters when extent that interests have to be balanced in given juvenile court, by insisting upon fair and lawful competent counsel represents the juvenile. The cases, the balance should be struck in favor of com­ 1. Pl'e-co~trt stages procedures. This entails the responsibility to ensure, judges in this jurisdiction stated that city attorneys, munity protection when the juvenile presents a a. Relationship with police for example, are simply not equipped to prosecute substantial threat to public safety, but of promoting for example, that baseless prosecutions are not b. Preliminary detention or bail decisions serious criminal-type cases. They argued further the well-being of a child for most other types of brought, that all juveniles receive fair and equal ~reatm.ent, that liberal discovery of the State's case 2. ~01t1't stages-pre-adittdication and adj,tdica­ that the closer the juvenile justice system moves offenses. tton toward an adversary due process model, the more 3. In his role as advocate) the prosecutor has, 1S .avalla~le to defense counsel, that exculpatory eV1dence 15 made available to the defense and that traditional prosecutor-type skills will be needed by responsibility to ensure adequate preparation and i a. Relationship with intake staff the government's representative in juvenile court. presentation of the State's case, from the stage of exce~sively harsh dispositions are not sou~ht. It also b. Complaints!petitions enta11s the responsibility to oversee police in "" t'- c. Pre-adjudication diversion or resolution of Given this potential conflict in role requirements police investigation through post-disposition pro·' . b - v"s 1 cases and given the lack of conceptional development of gat1ve ehavior to ensure its compliance with the ceedings. : law. objectives for prosecution in the juvenile court, the 4. Commitment to the rehabilitative philosophy: , d. Investigation and preparation of cases Center found it necessary to formulate some gen­ of the juvenile court bars the use of certain penal l, ' In the review and analysis of prosecution in the e. Motions and discovery eral ptinciples which might govern a juvenile objectives to achieve community security and pro·; Boston Juv.enile Co~rt that follows, these principles f. Presentation of state's case prosecutor's role and which might serve as a basis tection. REtribution and general deterrence, for were used 10 assessmg prosecutorial functions per­ 3. COttl't stages-post-adjttdicatio?'t \ formance at various stages of thl" juvenile justice both for assessing current efforts and for structuring example, are not proper goals of juvenile court, a. Disposition process. These stages include: improved programs in the future. These principles, proceedings. b. Appeals and collateral attack which we have used as a starting point for our 5. Since unnecessary exposure to juvenile couct· examination of the system of prosecution in the proceedings and to formal labeling and treatment; Boston Juvenile Court, have been drawn primarily in the juvenile court process is often counter·. from our review of statutes, model laws and stand­ productive to many juveniles, the prosecutor's duty. ards, court decisions, court rules, and scholarly to promote both the community's long-term secur·· writings. The formulation is a tentative one, which ity and the best interest of particular juveniles is to be tested on a continuing basis as we learn require~ him to encourage and stimulate early diver· more about prosecution within the juvenile justice sion of cases from the court and to strive for process. imposing the least restrictive alternative available This preliminary formulation of general prin­ in dealing with a juvenile throughout the juvenile ciples or objectives for juvenile prosecution is as justice process. It also requires that a prosecutor! follows: proceed only on legally sufficient complaints or. 1. The prosecutor is an advocate of the State's petitions even though a juvenile may require treat· interest in juvenile court. The "State's interest" is ment or other type of assistance. Responsibility in complex and multi-valued, and may vary with the this area is exercised by such means as issuing en·; type of proceeding and the nature of the particular forcement guidelines to the police, screening out case. Foremost, it includes: (a) protection of the deficient, insufficient and trivial complaints, and community from the danger of harmful conduct actively encouraging and participating in efforts to' by the restraint and rehabilitation of juvenile offen­ refer juveniles to other agencies or reach agreement ders; and (b) concern, shared by all juvenile justice on other acceptable dispositions. system personnel, as parens patriae) with promo­ 6. The prosecutor shares the responsibility witb, tion of the best interests of juveniles. other juvenile court personnel to ensure thai 2. To the extent that the State's interest in com­ rehabilitative measures undertaken as alternativei munity protection may conflict with its interest as to court handling or pursuant to court-ordered dis-: parem patriae in promoting the well being of a position are actually carried out, and that facilitiel, particular child, the prosecutor will be required to and services for treatment and detention meel, i balance the interests based upon the nature and proper standards of quality. facts of the particular case. For example, to the 7. The prosecutor has a duty to seek imtice~;

28 29 f\ " I facts which would lead to a legal determination of CHAPTER V courtS in Massachusetts, were allowed to retain 1 tO It '1" 15 I their jurisdiction over juvenile cases. The juvenile gUI t. \ sessions and the Boston Juvenile Court were to Upon his death in 1915, Judge Baker was suc­ have jurisdiction over: ceeded by Frederick Pickering Cabot as Presiding Il any boy or girl bet\'veen the ages of seven and seven­ Justice. His conduct of the court, as reported in One Delinqllents, a study by Sheldon teen years, who violates any cit}' ordinance or town TboIlSt11u/ tIt..: PROSECUTION IN THE BOSTON JUVENILE COURT by~law. or commits an offense not punishable by and Eleanor Glueck O'f the Boston Juvenile Court's death or by life imprisonment,u clients, was as follows: I'

This was amended by statute in 1960 to give the Generally speaking, the procedure emplo)'ed by the II' In rurn, the Boston Juvenile Court Act estab· juvenile courts jurisdiction over all juvenile cases Judge was in the beginning much more technical and legally formal than in later years. Nor was the A. HISTORY OF THE BOSTON lished a separate court for the handling solely of by eliminating the exception for crimes carrying a JUVENILE COURT sentence of death.or life imprisonment.12 Judge originally concerned with the personality dif­ cases against children. Prior to this Act, Boston ficulties and social background of his youthful clients I Massachusetts first enacted comprehensive juve­ juvenile cases were heard in separate sessions of t~1e I The degree of .formality and technicality of Bos­ as he was during the last five or six years of his j nile court legislation in 1906,1 seven years after the Boston Municipal Court. The Boston Juvenile ton Juvenile Court operations has varied over the service [1915-1932]. \'{1hen a lawyer was present initial juvenile court was established in Illinois. in Court Act called for the appointment by the Gov­ years. The first Justice of the Boston Juvenile Court at a hearing, the court as a courtesy to the attorney 1 "proceeded along lines of more or less cross·exam­ 1899.:.1 Other legislation relating to the handlt~g ernor of "one justice and twO special justices," as was Harvey Humphrey Baker, an 1894 graduate of Harvard Law School. Before coming to the Bos· ination." Lacer in his experience, Judge Olboe would of juvenile cases in Massachusetts was already 10 well as a court clerk.i The court was given broad ask counsel what procedure he wished him to apply, I tOn Juvenile Court, Judge Baker worked for a year effect before this time, however. For example, an powers governing its own operation: it \yas to and whether he desired to question the boy. During r 1870 law provided that in Suffolk County (BostOn), appoint tWO paid probation officers and "as many as clerk of the Police Court of Brookline, and from his last ten years the Judge stressed the informal cases against children were to be heard "separate deputy prob,ttion officers, without salary as . . 1895 to 1906 he served as a special justice of that features of the hearing. He would take the initiative court. Concurrently, Judge Baker began a private in the examination and when he was through he I from the general and ordinary cdminal business" advisable" to make "investigations of cases of would inquire of counsel whether he had anything of the courts and were nOt to be considered children against whom complaints have b~en law practice when he graduated from law school I 13 to ask the juvenile.16 (riminal.s This was later extended to give separate made." The court could also "continue from tIme and continued such practice up to his death. \'{fhile early accounts of the court are vague, it is t trials to all chiluren in Massachusetts -I and to pro­ to time the hearing in respect to any child," thus Judge Cabot was also instrumental in the estab­ I vide for a separate "session for juvenile offenders" permitting investigations to be made. It was fur·· : known that Judge Baker conducted his hearings lishment of a child guidance clinic for the Boston s in very informal, paternal manner.14 This with its own docket and court record. ther authorized to make its own procedural rules; , a w~s Juvenile Court, which was a goal of his predeces­ because of the prevailing parem patriae concept of The 1906 Delinquent Children Act articulated to hear cases either in chambers or in special juve. sor, Judge Baker. In a report of the first five years the juvenile court, with its emphasis on individ­ the purims pllfriite concept which the Boston Juve­ nile court sitting rooms; and to release a child either ., of the operations of the Boston Juvenile Court, ualized treatment of the particular child rather than nile Court ,vas to follow: upon the written promise of the parent.s or in loco, Judge Baker said that: on adjudicatory fact-finding. Throughout his tenure parentis that the child would appear 10 court, ~r , This aCt shall be liber.t!l) C011Slrtled to the end that in the BostOn Juvenile Court, Judge Baker was A clinic for the intensive study of baffiing cases on bail if otherwise eligible, "in order to aVOId, which fail to respond to ordinary probationary the care, cusrod), and discipline of the children apparently concerned with the background and cir­ brought before the c,..'1rt shaH ;1ppro;.:i~h1te as nearl?' the incarceration of the child." S treatment would enhance the efficienc), of the court cumstances of the child and with widening the ,1$ possible tb.z/IL'lJir I they s/;ould rccewe from tbelr The Boston Juvenile Court was to have the sa~e • more than any other accessoryF p.mmfs and thar, as far as praccica~le. Ih? sbaU be dispositional alternatives for him; correspondingly, jurisdiction as the Boston Municipal Court, whIch As a result, the Judge Baker Foundation, as the tmtlf:il, not as crimillals, btJt .1$ cbrldrelZ m lIeed of less emphasis was placed on the legal sufficiency of included the business sections of the city and the­ .tid, CfUOJIr.:gement. mid gttid.1I1ce. Proceedings court clinic is known, was organized in 1917. It ag Court apparently originate with children being old, and 2) the arresting officer requests in writing bail unless he cannot raise the money or collateral' t e ng lt to counsel. If the child is i~digent and I arrested by the police while in the process of com­ that the child be detained, and 3) either the court, the presupposition is that, whatever his offense tha~ ~as no counsel, an attorney is appointed at this tlme. mitting offenses. However, there are statutory pro­ in its arrest warrant, or the probation officer of that I pr~vides the basis for the delinquency charge, the I 1 visions for initiating cases by complaint to the court, "directs . . . that such child shall be held child should be entitled to bail. After the hearing on the complal'nt t1 ( I ' le COUrt ! court. In such a case, where: in safekeeping pending his appearance in court." i . In addition, the Bail.Keform Act of 1970 essen­ . t lrough the clerk) makes an issuance of process In such a case, the child will not be released upon; ttally ~rovides for a defendant's release on his own 10 the form of either a "summons" or a " .. complaint is made to any court that a child between 41 Th ' warrant. the written pl'Omise. However, the statute specifi- : rec~gnIza.nce (ROR), unless he is charged with a e Summons is issued to the child if he . d seven and seventeen years of age is a wayward or a t 1 ·10 d IS un er Jelinquent child, said court shall examine, on oath, cally provides that the child will still be eligible : capital CrIme or there is good reason to believe that we ve an to his parent or guardian,50 ordering the complainant and the witnesses, if any, produced for release on bai1.42 ! ROR will not reasonably assure the defendan:'s ;~em to ~ppear before the court, with day and by him, and shall reduce the complaint to writing, In practice, the child is usually released to his! appea:ance before the court.47 A child can onl Ime speClfied, to "show cause why such h'ld aml Ciluse it to be subscribed by the complainant.3o should n t b d' d c I parents at the stationhouse upon their written be ad!udged ."delinquent" by the juvenile cour;' . 0 e a JU ged a wayward or delinquent chtld .. 51 If h . This same procedure is followed by the cOurt when agreement to product Ie child at the complaint. eve.n If a capnal crime furnishes the basis for the "th' t ere IS no known parent or guardian, a policeman beings in a child that he has arrested: hearing, which is generally held the following day: deh~quency complaint, and the juvenile court can­ e court may appoint a suitable person to act Lor rh h'ld"so T l' there is a h

'I I 'f I ! All docket entries and court papers relating to f~ 511 cases. By 1969, its caseload had more than i I 1 assigned to the Boston J uveniIe Court (a very i the court's 1971 cascload were examined ~nd d~ta d bl d 1 164 cases and its tOtal case load for 1i . ou e to , 87 h h j.' in the attitudes of public defenders must occur l, were recorded to facilitate electronic analysIs. Da~ly 1972 is believed to exceed 1,400 cases.. Alt ou~ modest proposal); that additional training should be provided; that more extensive pretrial investi­ before any improvement in the quality of their ohservatlons• were can due t ed of Boston Juvenile. . privately retained counsel occ~siona.lly appears 10 j work will take place. Court proceedings during a six-week perlOd In the court and some cases are stlll aSSIgned to mem- II gations and interviews should be conducted; and Prominent in the thinking of public defenders August and September of 1972. All couct observa­ bers of the private bar, the Massachusetts Defenders r that prehearing placement alternatives and post­ in the Boston Juvenile Court is the view that tions were conducted by a single individual 'Yho has dearly emerged as the court's dominant defe~se adjudicative dispositional alternatives be developed i and pursued. 91 "nothing really bad" happens to most of the juve­ was perm .me d to take, notes in the courtroom.d counsel resource, representing the overwhelmmg , niles who appear before the court. To some extent, Smndardized data collection instruments were use . maJon. 't y of J'uveniles who do receive defense coun- I1 In mid-1972, the Massachusetts Defenders, bow­ the defenders seem to have incorporated the atti­ Observations were conducted for an average of sel assistance. I ing to its untenable caseload, withdrew its services tudes of many of their clients, who seem to believe three and one-half hours each day-the normal However, until very recently, the increasing case- i from the district courts of Massachusetts and reas­ that any disposition short of committal to an insti­ time which the coun was in session. No attempt load carried by the Massachusetts Defenders was signed its personnel to the remaining courts which I tution is equivalent to "beating the rap." Moreover, wns rna de, to follow individual defendants through. f not matched by a corresponding increase in the are served by the Defenders. In so doing, the De­ I the defenders perceive the COurt and its, persolinel each stage of the proceedings although. thIS . re- number of attorneys assigned to the Boston Juve. fenders was able to increase i.ts manpower in the I as essentially benevolent and committed to the best I 1 ened by chance. During thIS penod, Boston Juvenile Court to nve or six attorneys-by quent y lapp. . d' nile Court and the annual average number of ILcas~s I interests of juveniles. The Boston Juvenile COUrt 89 arraignments involving 99 charges, 87 adJu ,1- per defender swelled from 340 in 1966 to 619 1n i far the largest number of public defenders ever to is unique among the lower courts of Massachusetts cuory hearings involving 102 charges and 91 dls­ 1971. By early 1972, caseload pressures had i· serve in the court. With this number of defenders in inspiring such confidence among public defend­ posltlon inquiries involving 104 charg.es were assumed crisis proportions, when the meager num- I available to provide representation, the caseload for each defender since July 1972 would probably ers and undoubtedly reduces the adversary zeal observed. In addition to the numerous mformal ber of t\vo defenders who were assigned 1. to the I which they display in the court. "There is less (onversations which were held with coure person~el court in 1971 was further reduced. A pane_ of the be well under 300 cases a year, a considerable I pressure in the juvenile court. You know a kid and others, lengthy interviews were conducted wl.th National Legal Aid and Defender A~soCl"'l. 11, improvement over previous years. It should also be I won't get committed On a first offense .... It would the coun's presiding justice, chief clerk and ChIef which was conducting a general evaluanon of t~e : mentioned that the Defenders came under new leadership in the summer of 1972 with the appoint­ be dishonest to say that you don't sometimes get probation officer. In addition, interviews ,:ere con­ Massachusetts Defenders Committee, foun~ that 10 ; ment of a new chief counsel. lazy because you know they'll just condnue without durted with other court personnel, pollee prose­ 1972 only one defender was aSSigned to ! J anuary , : a finding and you can avoid a long trial. I try to the Boston JuveOl'1 e Cour. t 88 I As indicated earlier, our observations in the court cutors and members of the Massachusetts Defenders fight against getting lazy." Also, there is an over­ and our interviews with defenders took place some Committee. In all, interviews, lasting between : The report, which was highly critic~l of the riding belief among the defenders that the vast months after the Massachusetts Defenders increased ;nd 2 hours each, were conducted with 20 indi­ Massachusetts Defenders Committee and .1tS leader· majority of juveniles whom they represent are their manpower in the Boston Juvenile Court and; viduals. Two interviewers \"ere present at each h'p found that in the Boston Juventle Court" guilty of the charged offense and in need of Some , therefore, refIect conditions as they currenly exist. interview and extensive verbatim notes were taken. :h~ ~ole of the public defender "is not generally; kind of treatment or supervision. "By the time he r Unfortunately, however, the criticisms which were i' understood or we 11 de fi ne d". 89 The report, went . e il [the juvenile] gets to court he doesn't need a leveled at the Defenders by the N.L.A.D.A. prior l "The bulk of the MDC attorney s um : I E. PUBLIC DEFENDER SERVICES on to state, d r ney i lawyer, his problems are so deep. I can help him I ! to the assignment of additional attorneys appeared IN THE BOSTON JUVENILE COURT .s spent in court, representing clients at e lO~ue . I. beat the case, but if the kid is really in trouble, to be applicable during the period of our review . (OVERVIEWI') 1hearings. No pretrial motions are fil ed '. no 1nvest!'rei that doesn't help him." Finally, the traditional prac­ Poor case preparation, lackadaisical defense efforts gadon of the facts is performed, no wlt~esses. 11,; tice among public defenders in Massachusetts has I The Massachusetts Defenders Committee pro­ and an absence of effective participation at disposi­ cured unless by the client himself and Intervtew,; been to use the lower courts as a stepping stone vides sra(ewide public defender. services to indigents se ffice OD' tion continue to mark the work of the public defend­ ing takes place in a vacant courtroom or a It to trial in the Superior Court. Because a defendant f! ers in the Boston Juvenile COurt. In spite of the I in criminal and juvenile proceedings. Since July the day the client's case IS. to b e h ear d ." 90 The pane I can "appeal" a district court conviction and receive i' substantial reduction in their casdoad, the presid­ r 1965 the Massachusetts Defenders has assigned recommended, among other things, that at l~; I ing justice has noe discerned any appreciable a full, new trial in the Superior Court-which is at le~st one lawyer to represent juveniles in the tV·lO attorneys plus an investigator should r I ;c'Uprovement in the quality of the defenders' per- considered a much better forum for contesting a Boston Juvenile Court and, in each year since it case-little adversary effort "wasted" in lower I 87 These ngures were compiled and f urnls . h e d by the Mall+; formance. Even the Defenders' new general counsel is began its work in the court, has represented ~n achusetts Defenders Committee. .' Era/Nail": suspects that a mere increase in attorneys would court proceedings. "Our orientation is that triable int:reasing number of juveniles. During 1966, ~ts isS National. Legal Aid and Defender ASSOC1~t1on70 (1971;1 not, by itself, result in a significant change in the cases get tried in Superior Court." However, in t first full year of serv.ice 1n the BOStOn Juvemle Reporl on the Massachllsetts De/ellders C01llTmttee I so Id" at 71. quality of representation. It is his view that changes commenting on the very low number of cases r Court, the ~fassachusetts Defenders was assigned Vl-- fJOlbid. Id., at 76-7 which are appealed from the Boston Juvenile r Court, one defender stated: "If you lose a case, you I 40 j" 41 rt I !- h ~ -:';rt,,*.~;;.. ~,,;:;:',!.::. .... ;.,.,._t,.\:,.,,~,o.. ...4'<'~&;~-"'''?>~-'~~~'''~I.¥''';ua.~~.:'''':.....".,.~ ...... _~...... -..-...... :::,.~_""'~,,>~_.~_~.. ~=~"'~,~~~:;,;;;;;,;;;;;.~;;;:;;;;;;;:;;.:;;; ...;;;;:!toft;;;;'-IIJ;;;;;fit~·;{-:~'-"}\fi:i,;i'f':"';;;;;.t.i·'~?lqiiiirijjjjiiji--;;;:;:;==------"lM=.. r------j ! l,.j i~'" ~ ! rive" presentation of the government's evidence. are officially processed by the Boston Police Depart­ In theory at least, all arrests of juveniles in a I I don't feel for discre- who are not likely to engage in delinquent behavior situation most frequently occurs when the arrest .-;0 93 for themselves within it. One defender has referred is made on a late shift when the juvenile officers tion, they express the conviction that the court and again. Of course, an additional number of juve­ to his t,rescntc in the court as "irrelevant." Another are not on duty, when time pressures do not permit irs personnel will "do the right thing" without the niles are adjusted on the street without the issuance defender feels that "the lawyer is less a part of the regular juvenile officers to prosecute all pend· advice of the police prosecutor. of a formal warning. Juvenile officers say that they what's going on [than in criminal courts], espe- ing cases from their districts or when the arresting The juvenile officers cake visible pride in their screen and adjust juveniles "as a matter of neces­ 6;1l1y with regard to disposition. There IS much officer succeeds in convincing the sergeant that he work as prosecutors and in the association with the sity." The absence of any intake adjustment process more of a social work/probation atmosphere." should be allowed to prosecute. Juvenile officers court. They frequently cite the court's "no-non­ in the Boston Juvenile Court makes court refer­ Even the very small number of defenders who may also prosecute cases on which they were the sense" approach to the protection of juveniles' rals inappropriate in the majority of cases. For express a long-range interest in juvenile represen­ rights and its insistence upon the observance of this reason, referral to the court is treated as a last arresting officers. tucion seem unable to translate that interest into resott. In deciding which cases to refer, juvenile For the most part, the juvenile officers who legal formalities. They credit the trial and error dft'l. dve action in the court. Although the provi­ officers consider the type and seriousness of the prosecute in the Boston Juvenile Court have can· training which they have received in the Boston sion of <;ompetenr defender services is dependent offense and the degree to which the parents can be siderable experience in handling juvenile matters. Juvenile Court with improving their work in upon {1 wide variety of influences and not easily a positive influence in disciplining the juvenile. They tend to be seasoned veterans of the force with screening cases and preparing complaints and rais­ ~llhicved through any single approach, there is Cases involving violence are almost always referred many years of service behind them. Unlike the ing the level of their prosecutorial skills. re.'lson to believe that the presenr system of prosecu­ to court. On the other hand, minor altercations public defenders, the police prosecutors display nO However, while they praise the court and its per­ tion in the BostOn Juvenile Court may inhibit the between juveniles, school complaints, stubborn ambivalence or discomfort concerning their work sonnel, the juvenile officers show little optimism dt'vciopmenc of a more productive defense effort. children and runaways are among the kinds of cases in the juvenile court. Although none of the prose· concerning the court's ability to bring about a con- This issue will be taken up in subsequent sections • 1 • which the police routinely attempt to screen out. cutors have had any formal legal training, they structlve CHange in the lives of most of the juveniles of this t'hnpter. Police do not generally consult with probation feel that they are well equipped to perform their f " who appear befcre it. On the one hand, the neces­ staff in making referral decisions, although they duties as juvenile court prosecutors. While a small!i sary .rehabilitative services which many juveniles F. POLICE PROSECUTOR SERVICES may contact probation to determine whether there number of police prosecutors (including some reqUIre are not always available to the court. On the IN THE BOSTON JUVENILE olH are any outstanding warrants on the juvenile. the best) feel that the introduction of attOrneY'i other, they allege that the recent efforts of the Juvenile officers cited the frequent difficulty COURT (OVERVIEW) prosecutors is inevitable as a result of the increasing \ Department of Youth Services to move toward a which they encounter in attempting to adjust cases Nine police officers are used to provide most complexity nOw found in many juvenile proceed· d.ecentralized system of community based correc­ I at the police station. The police do not assume pwsc(.Ucorial scrvkes in the Boston Juvenile Court. ings, as a group, the police prosecutors are confi·[ ~lOnal facilities has diluted the court's effectiveness responsibility for refusing to refer a child to court dent of their ability to provide capable prosecutorial! 10 dealing with hard core offenders who require llIght are juvenile officers assigned to the three if the victim insists on prosecuting. They are, there­ services in the court and to meet the public de£en~\ ~on~ne:nent (or the threat thereof) in a secure discri(t poUce smtions ,vhich cover the area in Bos­ fore, powerless to adjust many cases which they ers on an equal footing. "Most young attorneJsl lflStltutlOnal environment. They are, therefore, dis­ ton f'llling within the jurisdiction of the Boston may feel d9 not warrant court action. Among these coming out of law school think the police ar.ft posed to adjust as many minor cases as they can Juvenile CO\lft. They gener'lily spend the mornings are the large number of petty shoplifting cases ell without court referral and frustrated with their in ~()urt prosecutiog c.lses which arise out of their incompetent. Then they go into court and get th !" which the court hears. (Retail establishments respet.tivc districts .lnd the latter pordon of the inability to invok. e th e k'-10 d 0 f d'IsClpllOary . . actIon . ears knocked off." \l in downtown Boston have insisted on prosecuting which they cl"aIm IS reqU1re. d'WIth some JuvenIles." d,lY in performing their regular responsibilities To the juvenile officers, prosecution is an extefl'l all shoplifting cases, both as a deterrent measure as Juvenile ol1icers in their districts. A police set:- sion of their work as policemen and they approa~l G. PRE-ADJUDICATION 1~1,.'spl)osibilicy for police prosecution in the · I I Approximately one-half of the juveniles who their function in the court as limited to an "0b Jf('ll 0:1 Ibid. (ourr. 1 j , 43 42 1 .t

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II) ! Boston Juvenile Court without approval of the of a witness is in serious doubt, the application may ment of the presiJmg}ustice, the authority . agal'nSt law suits for false presen~ Ij police as well as the clerk. In 1971, the Boston be rejected by the clerk or withdrawn by the police. an d as a procccnon to approve complamts for filmg .wa~ delegated to I'. J. police were on the complaint in almost ninety-five Disagreements between the clerk and the police arrest.) the court'S clerk, Now, all appllcatlOns for com· \ In adjusting cases, juvenile officers ,d.o. not percent of all referrals resulting in complaints. regarding the merits of a requested complaint plaints must be made to the clerk. If the ap~lic~. 11 Transit and housing authority police and school ;lcccmpr to refer juveniles to treatment factlltles ~r don is approved by the clerk, the complaInt IS I ' attendance officers were on an additional five per- programs even if they appear to need help. ThiS drafted by a member of his staff. The absence of 1 TABLE 3.-Complaints in the Boston Juvenile Court (1965-71) dedsion is left to the parents. Juvenile officers any intake apparatus for screening and adjusti~g t state they would nor wish to be responsible for TABLE 2.-Complainants in the Boston Juvenile Court Year Not approved Approved Total Not approved cases without court action leaves the clerk WIth It. (1971) allY harm that might come to a child as a result of considerable control over the number and type oIl (percent) Complainant Number Percent 1965 65 1184 1249 (5.2) 1lt1 ill-advised refenaL cases which go forward for judicial action. Once I 1966 110 1660 1770 (6.2) A child's parents are contacted immediately af.ter Police ...... 1160 (57.1) 1967 70 1724 1794 (3.9) a complaint is approved by the clerk, the case goes ;1' Private ...... 14 (0.7) 1968 89 2004 2093 (4.3) (0.2) he is taken inco custody. The police often questLon on to arraignment and the formal adjudicatory t Parent ...... 4 1969 82 2099 2181 (3.8) Police/private ...... 442 (21.8) juveniles prior to the arrival of the!t parents at process is begun. i 1970 93 2029 2122 (4.4) Police/parent ...... 113 (5.6) 1971 85 2314 2399 (3.5) the police station even though thel.r statements (9.6) Applications for a complai~t are ~repare~ by a I Store/police ...... ". 197 Total 594 13,014 13,608 (4.4) woultl not be admissible. The court Will not accept School attendance officer ...... 35 (1.7) police officer either at the. P?llCe station or .m ~e t Housing police ...... 4 (0.2) a w,tiver of the juvenile's Mira11da rights unless it clerk's office. Upon submisSion of the appllcatl.oo \ Transit authority officer. 55 (2.7) made in the of the juvenile'S parents Transit authority/private ..... 8 (0.4) TABLE 4.-Complaints Not Approved (1971) is pres~nce to the clerk he conducts an inquiry to determme i Total...... ,.. ... 2032 (100.0) or atrarney. whether a c'omplaint should be issued. The clerk'l Notation on complaint Number Percent If the juvenile officer decides to refer a case to who is an attorney, examines the application and I "Not approved" ... 44 (52.4) wurt, he may release the juvenile to his parents "Not approved at request of police". 35 (41.6) ( ~lestions the police officer and any other ~'itnesses \ cent of complaints filed. Private persons were the "Not approved at request on that the)' ensure his presence in the c~urt on the ~o ascertain whether there is sufficient eVidence to \ sale complainants in fewer than one percent of of complainant" ...... 4 (4.8) following day. A summons or warrant 15 nOt ge~­ suppOrt the requested complaint. \'{fitn.es:es ~re all approved complaints. "Lack of prosecution" 1 (1.2) I Total...... 84 (100.0) eraily issued unless ehe juvenile fails to appear 1~ required by the clerk to be present at thIS mquI~ \ Court screening procedures have accounted for tourt at the appointed time. If not released to hIS "unless there is good and sufficient reason" for hiS I a remarkably low number of unapproved com­ p.uents, the juvenile may be brou~ht d,irectly to absence (e.g.) illness). I plai,nt applications. In the years from 1965 to undoubtedly do occur from time to time. Some wurt frl)nl the police station by the JuveOlle officer. The clerk does not ordinarily issue complaints \ 1971, the highest percentage of unapproved appli­ police officers did suggest that the clerk may be . . . When a' Pre-arraignment tjf-tention determinations are on the application of pnvate cltlzens. ! ' cations was 6.2 % in 1966. In 1971, the rate fell overly cautious in granting certain types of com­ made by a prob.~tion officer who is ~lVailabl~ to t~e private citizen comes directly to the court to COffi', to 3.5 % (Table 3). plaints: "Some things are more difficult to get police on a twenty-four hour basis. If a Juvemle plain against a juvenile, the clerk refers him to the! Of those complaint applications which did not across to the clerk than others. Disorderly person, is taken into custody after normal court hours, appropriate juvenile police officer for further] gain the clerk's approval in 1971, approximately for example, is a catch-all; but this kid wouldn't "f ry Generallf,L the prohation offit:er is contacted for~is d~cision investigation and screenmg, I nece~sa '. 'j half were "not approved" on the initiative of the be charged with it if he weren't harassing some­ regarding the juvenile's detention. (It IS est1~ated the clerk will not file a complalOt w1thout th~! clerk, while almost all of the others were "not one." Disagreements over specific complaints tend by the t.hicf probation officer that eig~ty to nmery prior endorsement of a juvenile officer. Althoug~l~! approved at the request of the police" (Table 4). to be muted and contained. Although the juvenile per... ent of juveniles who are taken lOto cuscod,y is nOt strictly required by statute, the clerk gUldol Relationships between the clerk and the juvenile officers can obtain a review of a complaint rejection \vhen court is not in session are released to theIr his approach with the view that "the com~o;l officers reflect expressions of mutual respect and by petitioning the court, this is rarely, if ever, done. parentsJ If detained, juveni!es a~e brought co wealth is [or should be] a party to every actiO ({.l shared values. The clerk attributes the low rate of In the first place, it is highly unlikely that many (.{)urt on rhe following day for ~rratgnment. and Insists, . upon t h e concurren ce of a J' uvenile Owl.. \ rejected complaint applications to the experience serious offenses are screened out over the strong I' . l' . for a cOOd Historically, judges in the Boston Juvenile Coun cer before considering an app lCatlon L and professionalism of the juvenile officers. The objection of the juvenile officer or of the victim. police cite the high standards which the clerk Second, police are extremely reluctant, in all of j persooally approved each complaint that was filed. plaint, Many of the cases which the clerk refersl 1 i This not only represented a huge drain on the . f 11 d'usted DIl • employs in screening complaints. As in their associ­ their functions within the court setting, to make ; to the juvenile officers are m orma y a J h~l'\ i t:oun'stime but also placed the judges. in the ~tions with other phases of the court process, the and to argue for their own discretionary judgments. 1 them and no complaint is subsequently soug \ 1 ree!i" Third, their view of the court as a compartmental~ umlesirlble position of having to hear at adjudica­ Thus the role of the police in the pre·court sc 1 Juvenile officers take pride in their ability to per­ tion -cases founded upon complaints which they, Or , . I f ct as sho~tl form success full y under close scrutiny. ized system with sharp divisions of responsibility I! ing of cases in indeed extenSive. n a, . \ s' mher judges of the court. had previously revie\~·ed l d W!' i Where the evidence is llimsy or the reliability and authority militates against circumstances which \ in Table 2, almost no complaints are fi e In I ~ Ilod appt

. f d' d d' h . r1f. h I 1 h .-- they have pretty sharp district attorneys so I don't motlons or a Irecte ver ICt, tree were motions Ing t e proper ega c arges to particular fact by the court. Stubborn children, runa\vays and really know." \)1) to suppress, five were motions to dismiss and I situations, they are not frequent and excessive other offenses which n.re unique to juveniles are Notwithstanding the lingering reluctance to file one was a motion to amend a complaint. ! charging is the rare exception. Wherever possible, among the kinds of cases which many courts arc motions in the Boston JuvenHe Court, a definite On a motion for directed verdict or a morion to 1 police endeavor to adjust petty complaints without successful in diverting or adjusting at the intake inc.:rease has been noted since the summer of 1972, dismiss, most of the prosecutors can quite ade. I court referral. The court's caseload, therefore, docs stage. The Gltidelilles) therefore, recommend the when the Massachusetts Defenders expanded their quately respond by characterizing and interpreting 1 not. reflect ~ h~gh .pr~portion of "junk" complaints establishment of an intake screening process which coverage in the Boston Juvenile Courr. Both defend­ the evidence in such a a way as to meet defense whIch are tndlswmtnately referred to the court. would seek to identify and divert appropriate cases ers and police prosecutors ("Sometimes it appears counsel's argument. It is very rare that a prosecutor Notwithstanding the high level of general COm- not requiring full judicial action. The participation that they have nothing better to do with their time is required to say more than a few sentences reit- petence which the juvenile officers and court clerk of a juvenile court prosecutor is deemed essential than write motions,") have indicated that more erating the testimony given by his witnesses. display in the performance of these functions, the to the proper operation of an intake diversion motions Me now being filed than in the past and Ho\vever, the judges themselves routinely "argue" success of the juvenile officers, particularly, cannot process and in the formulation of consensual diver­ fcc:! chat this trend is likely to continue. the government's side when a legal issue is raised be divorced from their regular exposure to COurt- sionary plans for submission to the court for its Although police department policy calls for by a motion or objection. This practice places imposed standards through their work as juvenile approval. ohtilining the assistance of the police department defense counsel in a direct adversary relationship court prosecutors. However, with the use of attor- legal advisor when motions arc filed, in practice, with the judge-an uncomfortable relationship ney-prosecutors to represent the state at adjudica- H. ADJUDICATION the polite prosec.:mors handle almost all motions for the public defenders who must appear in the tory hearings, the direct influence of the court over A. little le.ss than half of the 87 adjudicatory on their own with the assisranL'e of law students same court on a daily basis.D7 Under these circum· the police will be somewhat diminished. It is there- heanngs wlilch were observed involved admis­ from the Suffolk Law Sc.:hool. Professional inter­ stances, aggressive advocacy is inhibited and the fore essential, as outlined in the GlIidelilles, Chap- sions. That is, when the case came up for hearing, vention for the stare in answering motions almOSt public defenders may well refrain from raising ter :' infra, that the juvenile court prosecutor play the juvenile "admitted to facts sufficient for a never occurs in the Boston Juvenile Court. technical legal issues which risk unwanted con· an Important role in scrutinizing all complaints frontation with the judge. which are filed in the COurt. finding." These .admissions include those cases in Although the police prosecutors feel that they are which juveniles waived counsel at arraignment ahle to adequately respond to motions ("These ~he increasing number of pre-hearing motions The need to provide assistance to the prosecution I in return for an expedited adjudicatory hearing to in responding to motions is regarded as an unde· whIch are now being filed in the Boston Juvenile motions arc not difficult deal with."), it is clear and an assurance of a light disposition. time cven with the help of law students, the state sirable necessity by the presiding justice as 10ng;lS I Court by the public defenders points out the need H?wever, most .of the contested cases are only is sevl'rely handicapped in its use of police officers professional prosecutOrs are not available: "I can'l for ~ qualified state's representative at this stage. nommally contested. It is the typical pattern in a en respond to the incrcasingly complex legal issues hold the police to the strictest standards of response. The IOformal, almost casual, way in which motions "contested" case for the public defender to cross­ whkh me being raised in juvenile cases. Nowhere They can't cite a case in support of their argumen~ are presently responded to demeans the adversary I examine the prosecution witnesses, to present no is this problem more apparent than when oral for example." As non-lawyers, the police prosecu· I p~ocess and ensures neither the rights of the juve­ witnesses on the defendant's behalf and then to motions .1re made by defensc counsel at the adjudi­ tOrs may have difficulty in dealing 'with legal con· 1 nIle nor the community's interests in fair but state that the government has not proved its case. (,uion heMing. As the sale representative of the cepts. As an example, the judge recounted a case effective representation. The G1Iidelilles also sug­ t Even the cross examination is frequently perfunc­ smw Ilt these hearings and with no opportuniqr to in which the police, following their reading to a gest. ~ role for the juvenile COurt prosecutor in I tory and reveals no design or rationale on the part g.tin outside assistance, the police prosecutors are young suspect of the obligatory Miranda warnings. I advI~lOg the police on proper practices which are of the defense attorney. A case involving two often left without the means to frame an adequate questioned the boy persistently in spite of his reply cons~stent with the rapidly emerging body of legal I 15-year-olds who were charged with larceny of a response. Under these circumstances, the judge has that he wished to make no statements. After con· I! r~qUlrements which are now applicable to juve­ bicycle is fairly typical of those nominally con­ no .11wrnat1ve but to intervene in behalf of the dnued questioning, the boy finally broke down and ~tles. Although the juvenile officers gradually tested cases. The police prosecutor put on three polite l'lrosei. mor and himself develop the legal provided the police with incriminating statements. catch 0n " to Sue h demands ' through this current witnesses-two campus police who had appre­ ,uguments whkh an attorney-prosecutor would At the hearing, the judge ruled that the statements work. as prosecutors, t h e process is often slow and hended the juveniles with the bicycle in their pos­ ordinarily be obliged to make. In the 87 adjudi­ were inadmissible to the complete baffiement of dIfficult. For example, juvenile officers discontinued session, and the victim, who identified it as his ("torr hc.lrings whic:h were observed, some 23 the police prosecutor. t the use of line-ups for a period of time because property. The defense attorney's cross-examination motions. were made orally by defense c0unsel. of confusio . . It must be concluded that the juvenile officersj n concernmg the reqUlrements for con- of the campus police officers consisted of the Of [hest\ five were motions to strike. nine were ducting them properly. . and the coure clerk presently perform an admirable following: '(I job of screening for legal sufficiency and of draft· many cases are referred to the court tlll!n Ian. l,~s than 1''': llf aU Jelinqucn,y adjudications in ~inal1y, Q. Where did you apprehend these young men? whIch cann b d . Ihe- Bl\s!nu Juvenile Court wcre .ll'pe.:tled in 1'J~1. This (lim· ing complaints. Although errors do occur in apply· Ot e screene out by the Juvenile A. In the parking lot. p.1RS \\lIh illl "i'P~.lts fMC of .!!ll'; ill th" distrkt (lIUI[. Bing officers b t h' h d . ..tn,! Rt',cntel.\. 1.1 ilt ·I~. u W IC 0 not reqUIre full adjudication Q. How close were they to the bicycle?

50 51

j j'a: § '.,.... 1 'wn '

the arrest and gave testimony at the hearing. Both One in Of interest is that for the five-year A. One was holding it, and the other was stand- which could result in a much more severe disposi­ 1967. tion than if the juvenile had not taken the stand. arresting officers testified that they heard an alarm period of 1962 through 1966, there were ten times ing next to him. The presiding justice, on the other hand, regards go off which is triggered by tampering with the as many delinquent findings as there were not Q. And you're sure he was holding it? this as another indication of the defenders' own cash register, ran down the hall and into the cafe­ delinquent findings while for the five-year period Yes. A. unwillingness to represent children with the same teria where the register was installed. The defen­ of 1967 through 1971, the ratio dropped consid­ \V7hat time of day was Q. it? adversary forcefulness as they would use in the dant was found standing near the cash register and erably to an average of six-to-one. This decrease A. Four o'dotk in the afternoon. representation of adults. was arrested. Nothing had been taken. Defense coincides generally with the introduction of regular Defense counsel made a total of seventy objec­ Defenders rarely offer the court an alternate counsel put on two witnesses, the defendant and tions in approximately forty contested cases which TABLE 5.-Findings in the Boston Juvenile Court for 1971 theory to the state's case. Their cross-examination another boy who had been in the cafeteria at the I (N = 1940) a were observed. Of these seventy objections, how­ of the government's witnesses, while often lengthy, ~' time. This case was one of only six cases where a ever, fifty-five were made in only six cases-the Finding Number Percent does not reflect any prehearing investigation or t' witness other than the defendant testified for the highest totlll of objections in a single case being preparation. In most cases, their examination of ' defense. The boys described the room as full of Delinquent ...... 868 (44.7) Not delinquent ...... 132 (6.8) thirreen. teen-agers eating lunch, most of whom ran when the government's witnesses is conducted with no 1" Dismissed without a finding ..... 379 (19.5) In this same number of adjudications, tweney-' the alarm went off. It was also brought out that File~ without a finding ...... :...... 94 (4.8) apparent purpose or plan and seldom yield any 111 ont defense witnesses rook the stand. Fifteen of considerably over a minute passed between the Bound over...... 76 (3.9) advantage to the juvenile. Summations by the Continued without a finding ...... " 384 (19.8) these were the juvenile defendants themselves, defenders are the exception rather than the rule. sounding of the alarm and the entrance of the Other ...... 7 (0.4) Mothers of defendants testified three times, and the police. The adjudicatory hearing lasted for almost Total ...... ,...... 1940 (99.9) The defenders tend to assume that almost all of tD! other three witnesses were a store dctC'ctive, a law an hour, featuring extensive cross-examination of • This table Includes only those cases for Which data concerning the juveniles who are brought to court are guilty I the finding were available. These 1,940 cases represent 95.5% of student and a companion of the juvenile defendant. the prosecution witnesses. Two motions were made the court's caseload (2.032). of the charged offense and would benefit from The average time for a contested adjudicatory hear­ I by the defender. One, to suppress statements made being under the supervision of thffie court. dThehir , ing was under twenty-four minutes. to the police, was one of only three such motions public defender services in the Boston Juvenile opinions of the juvenile police a cers an tel 'C' '" Public defenders display a range of trial styles. probation and clinic staff are highly complimen- observed in six weeks. At the end, the defendant Court and may well be attributable to their Most will not generally object to the form of the received a finding of not delinquent. presence. tary. Under these circumstances, they feel little II,' : questions used by the police prosecutor in exam­ incentive to expend the time and energy necessary It should be pointed out that the arrest in this (As shown in Ta-ble 6), almost 90 % of all ining witnesses except in cases of flagrant abuse. to truly contest the great majority of the cases case,. having been made by a state police official, juveniles are represented by counsel in the Boston Others object with far greater frequency but are which they handle. In spite of the fact that police was not screened by the juvenile officers nor prose­ Juvenile Court. As indicated earlier, the court does seldom successful in keeping out damaging evi­ prosecutors represent the state, they would prob· cuted by one of the regular police prosecutors. It not encourage juveniles to waive counsd and will dente. In one case, the defender made thirteen ably agree with the assessment of one prosecutor must also be noted that while most cases which only accept a waiver in cases involving minor objections in a case involving breaking and enter­ who stated: "Once a kid gets to court, it would are processed by the regular juvenile officers would offenses where the disposition is not likely to be ing IU1l1 rnpe. Five objections wefe to hearsay, two take a magician to spring him." support a finding of probable cause, the lackluster severe. Waivers were accepted in fewer than 12 % wt'n' to questions asking for opinions, an,l six were Accordingl y, the defenders reserve their full defense effort which most "contested" cases receive of tbe court's cases. Almost three-quarters of all to lcllding questions. Most of these were ·;ustained, adversary effortS for those r;ases where the prosecu· at the adjudicatory hearing does not inspire con­ juveniles are represented by the public defender. requiring the police prosecutOr only to rephmse tion has an unusually weak case or where the fidence that they would, with better defense work, In a small percentage of cases, the court will assign his question or to remind the witness not to testify chnrges are so serious that they cannot rely on necessarily meet the requirement of being "being a reasonable doubt." TABLE G.-Representation of Juveniles in the Boston to hearsay. The judge paused only briefly to rule their nomal presumption of juvenile court bene· on eadl objection. Every bit of. prosecution evi­ Juvenile Court (1971) volence. . An examination of findings in the Boston Juve­ dence was eventually admitted with little difficulty. nile Court for 1971 (Table 5) and the preceding Counsel NUmber a Percent The following example ,is one of the relatively 10 In the majority of cases observed, the attorney nine years 98 indicates a substantial reduction in the Waived ...... 189 (11.7) small number of observed cases in which the Public defender ...... 1191 (73.5) put in no evidence at all, leaving the court only prosecution's case \vas clearly inadequate. " ratio of delinquent to not delinquent findings. Private, appointed ...... _...... 56 (3.5) with the uncontroverted testimony of the prosecu­ Across the ten-year period, the ratio was as high as Private, retained ...... 127 (7.8) The juvenile defendant, \vho had nO prior (3.5) tion witnesses. Defenders often do not put juveniles Other b ...... :...... 57 record, was charged with attempted larceny of a fourteen delinquent findings for everyone finding Total ...... :...... 1620 (100.0) on the stand to testify on their own behalf. The cash registGr in a srate building. The prosecutor of not delinquent -(1962) and as low as four-to- • This table· includes only those cases for which data on counsel ddcndcts contend that the testimony of juveniles type was available. These 1620 cases represent 79.6% of the was an officer in the State Capitol Police Force. I court's caseload for 1971. • 08 is unreliable and, if it appears to be untruthful, is Taken from the Commonwealth of Massachusetts, Statis­ b Includes law school defender programs and Boston Legal tICal Reports of the Commissioner of Correction (1%7-1970). likely to invoke n strong reaCtion from the court He was also one of the policemen who had made Assistance Project.

52 53 TABLE 7.-Findi~lgs in the Boston Juvenile Court for 1971 by the Counsel Type (N = 1562) a ers are community and court-oriented." apprehended in a store with a jacket on his arm Dismisserl Filed Continued Moreover, since the private attorneys are often Not without a without a Bound without a Other Total that he had removed from another department. Delinquent delinquent finding finding over finding more familiar with the defendant and his family Defense argued that intent to steal the jacket had Counsel ------than the public defender, it is our impression that Num· Per- Num- Per· Num· Per· Num· Per· Num· Per· Num· Per· Num· Per· Num· Per· not been shown. The judge countered by reading ------ber cent ber cent ber cent ber cent ber cent ber cent ber cent ber cent the judges give more credence to their remarks from the statute, which specified that the goods Waived ... 31 (17.0) 2 (1.1) 36 (19.8) 4 (2.2) 0 (0.0) 104 (57.2) 5 (2.7) 182 (100.0) about the juvenile's background and character and need not be removed from the store to constitute public defender .. 645 (56.3) 86 (7.5) 186 (16.2) 57 (5.0) 32 (2.8) 131 (11.4) 9 (0.8) 1,146 (100.0) their pleas for leniency. A private attorney may be Private, appointed 17 (31.5) 8 (14.8) 6 (11.1) 1 (1.9) 2 (3.7) 20 (37.0) 0 (0.0) 54 (100.0) the offense, but just taken from the department, Ij able to say with some credibility that he has known Private, retained 42 (33.9) 14 (11.3) 25 (20.2) 5 (4.0) 7 (5.6) 29 (23.4) 2 (1.6) 124 (100.0) ,. saying "I didn't make the law." The judge then other. 26 (46.4) 2 (3.6) 13 (23.2) 3 (5.4) 0 (0.0) (21.4) (0.0) the family and child for years, and to characterize - 12 0 56 (100.0) asked defense counsel if he would be "satisfied" • This table Includes only those cases within each counsel type cases represent 96.4% of the 1620 cases for which counsel type the child's behavior as a minor aberration from with a dismissal, which the attorney readily for which data concerning the finding were available. These 1562 was recorded. his basically good nature. accepted. Beyond that, private attorneys are often able to The competence and self-assurance that the private counseL These cases usually involve Span­ Court's 1971 caseload, it appears that, with only suggest more specific dispositions. The observer iSh-speaking juveniles who would have difficulty a few exceptions, retained counsel represented a regular police prosecutors project at hearings varies concluded that private attorneys recommended considerably from man to man. However, their communicating with a public defender. Assign­ fair cross-section of the distribution of offenses in specific courses to the judge with far greater fre­ ment of private counsel may also be made in a the total caseload (Appendix C, Table 2). Retained general style and approach to the prosecution of quency than their public defender counterparts. juvenile cases is much the same. They perform small number of cases in which counsel appears counsel did appear in a disproportionately high For example, in one case the attorney, at disposi­ their courtroom ~uties in a detached and "objec­ in fc\ver than 10% of all cases. Considering the percentage of cases involving charges of assault tion, told the judge that the defendant was associat­ fact that the court requires juveniles and their and battery, destruction of property and disorderly tive" manner. Their COurtroom techniques are ing with a specific bad companion and suggested simple, practical and direct. They are designed to families to consult with a public defender before person, and a lower percentage of cases involving that the conditions of his probation include an present the court with the basic evidence necessary agreeing to waive counsel, it can be stated that charges of breaking and entering and running order to stay away from this named companion. some form of counsel assistance is provided to every away. Overall, however, the cases which were to support the allegations of the complaint. They The defendant had an extensive record and it was are responsible for securing the presence of the juvenile who comes before the court. handled by retained counsel were representative I the observer's impression that this tactic was suc­ state's witnesses, eliciting their testimony and cross­ In terms of the effectiveness of counsel, how­ of the court's caseload. Their somewhat higher . cessful in avoiding a committal to the Department examining defense witnesses. The police proseCll­ ever, the data suggest that there may be marked frequency of appearance in "serious" cases such of Y9uth Services. In another case, the recommen­ tors display a working knowledge of the rules differences between the various types of counsel as assault and battery may explain the fact that dation involved a placement in a particular private' against hearsay evidence and frequently admonish who appear in thc Boston Juvenile Court (Table a greater percentage of juveniles who are repre· halfway house which had agreed to accept the their witnesses to "testify only to what you saw." 7). Juveniles who are represented by private coun­ sented by retained counsel are bound over to the defendant. This, too, was accepted by the judge. Occasionally, they will object to leading or irrel­ sel, both appointed and retained, are less likely to criminal courts for trial. Lastly, private attorneys are often shown greater evant questions but generally limit themselves be found not delinquent than are the clients of Although private attorneys are usually strangers •. J consideration by court personnel than public defend­ to the responsibility of presenting an affirmative the public defender. In fact, the diems of public to the juvenile court and are unfamiliar with its ! I ers. For one thing, cases involving private counsel case for the state. Their demeanor is crisp and defenders arc almost twice as likely to be found procedures and practices, court personnel agree . { ~ill SOmetimes be scheduled to begin at a specific occasionally "chilly" but they rarely adopt the delinquent as are those of private counsel. More­ that they are able to spend far more time in pre· !. t time, whereas all other cases are called more or less harsh, punitive style which characterizes some of over, even if found to be delinquent, juveniles who paring their cases than the public defenders. Also, I { randomly, requiring defendants and their families their counterparts in other courts. Their role at the nre represented by private counsel avoid the most they are less likely to assume the benevolence of . f to wait around for hours. However, this "con­ adjudicatory hearing is narrow, serving primarily severe dispositional alternatives. . the juvenile court or the advantages of court super- .. ~ ~ideration" is also apparent in more subtle but more as a conduit for the state's evidence. They are not, Although the greater success of retained private vision. The chief probation officer, in referring tot Important ways. For example, one shoplifting case in any real sense, advocates, and they seldom counsel could be explained, at least in part, by the the harm that is being done to juveniles who get I was observed in which the charges were dismissed engage in arguments to the court or in any activity better image which their more affluent clients may away with their misconduct because of the inter- ! at the judge's Own suggestion. This was a situation proj~ct in court, this facror would nOt account for vention of counsel, stated: "There is a difference' 'J which could be seen as an overt effort to sway or where Our observations led us to conclude that the advise the court. They rarely attempt to interpret the equally successful performance of appointed 'j. between private and public counsel. We can do a t best a public defender could have hoped for was a private counseL Furthermore, comparing cases lot better with the public defender. Private counsel the evidence and refrain from areas in which I! COnt~nuance without a finding, which the judges represented by retained counsel with the distribu­ opinions or discretionary judgments are called for. has no interest in court itself cr the system. TheYt! ~onslder equivalent to a delinquency finding when tion of offenses throughout the Boston Juv~nile In spite of the claims that juvenile officers prose­ are only client-oriented. The Massachusetts Defend· ! J It appears on a child's record. The juvenile was } cute almost all cases in the Boston Juvenile COllrt, 54 ~ ! ; ! 55 I'--i~ M ! can fairly and effectively present a case notwith­ t our observations reveal that a substantial per­ I account of the incident. The arresting officers show tion. One was the case just discussed. The other standing that they may also be their own chief centage of cases are prosecuted by police officers only a primitive understanding of the rules of involved a charge of use of a motor vehicle with­ witness. The simple conviction which juvenile other than the regular police prosecutors. In f evidence. They lack courtroom presence and out authority. The arresting officer simply testified officers express concerning their prosecutorial abili­ l approximately thirty percent of the hearings which usually seem uncomfortable with the proceedings. that he stopped a car reported as stolen and the ties is reflected in the following statement: "If you were observed, prosecution was conducted by the In some cases, of course, the issue is basically only defendant was riding in the passenger's seat. He are involved in the arrest, you don't have to rely arresting officer. For the most part, these officers one of cledibility, so the officer's lack of familiarity. then sat down. Defense proceeded to move suc­ on others for the story. Prosecution is, in a sense, were members of the Boston Police Department, with legal principals is relatively unimportant. Even cessfully for a directed verdict on the ground that story telling. I know that if I make an arrest, it's but a transit authority officer and a member of the so, a serious question of propriety is raised when intent had not been shown. The judge then turned absolutely justified. I don't need extra cases." Of State CapitOL police contingent also prosecuted. the arresting officer cross-examines a juvenile who to the policeman and explained that the statute course, this statement also reveals one of the prin­ takes the stand in her own behalf (in cases involv­ required knowledge and that he had not testified While there is no "hard-and-fast" rule concern­ cipal dangers in allowing arresting officers to pros­ ing soliciting for prostitution, for example) with to anything tending to establish knowledge. The ing the use of arresting officers as prosecutOrs, an ecute. In presenting his own case, the police pros­ questions about what "I said to you" and what policeman said: "I just put in the evidence I have effort is made by the ranking juvenile officer to ecutor can no longer be regarded as the objective "you said to me." and that's my job." The judge seemed somewhat limit the use of non-juvenile officers as prosecutors. state's representative. His own veracity, credibility perturbed at that response and directed a verdict However, when an officer asks to prosecute his own If a case requires more than just his own testi­ and integrity are at stake in the proceeding. An of not delinquent. case and the sergeant determines that he is suffi­ mony, the arresting officer acting as prosecutor unfave;rable finding by the court may be tanta­ ciently cOlTlpetent, he will allow it. Nevertheless, quite rapidly gets out of his depth. Several instances Although some of the most flagrant instances mount to an attack on the witness-prosecutor's il.;i the juvenile officers point out the need for of embarrassing inadequacy have been observed in of prosecurorial inadequacy tend to occur when the truthfulness. Because of the prosecutOr's personal experience and skill in prosecuting cases in the these cases. In one case, the arresting officer failed regular police prosecutors are not involved in the involvement in the case, all the ordinary elements Boston Juvenile Court and concur in the view that to elicit testimony from the victim identifying the presentation of a case at the adjudication hearing, of an adversary proceeding-cross-examination, most non-juvenile officers are not adequate to the defendant as one of a group of boys ~ho allegedly there is ample reason to conclude that the use of objections to evidence, etc.-may take on the col­ task. When asked whether any police officer should attacked him. The judge became quite annoyed juvenile officers to represent the state at adjudica­ oration of personal conflict. Under those circum- ~. be permitted to prosecute, one juvenile officer since he was clearly personally convinced of the tion is not desirable. In using police officers who stances, it is extremely difficult to maintain an stated, "No, not today. You have to learn the defendant's involvement but felt that the arresting are untrained in law, the state assumes an obvious' appearance of fairness and propriety in the court-I· proper way to present a case. An officer can't just officer had failed to present the evidence properly. handicap in all but the most uncomplicated pro­ room. Although some juvenile officers contend ., walk in off the street and expect to know what to He g~anted defense counsel's motion for a directed ceedings against juveniles. Unable to argue points that they are able to maintain an appropriate do." The police prosecutOrs regard themselves as I verdict and chided the officer, saying: "The only' of law and often failing .to elicit testimony which prosecutor's demeanor even when their own testi- specialists \"ith a level of expertise not found I testimony you gave is what someone told you. That is necessary to establish all the essential elements mony is under challenge (''I'm not vicious. If a among other police officers. In this regard, their isn't admissable in court." Afterward, the judge of an offense, police prosecutors would seriously kid takes the stand and denies what I've said, I just attitudes toward the use of police officers \vho lack called in the chief police prosecutor, told him what jeopardize a large proportion of their cases were continue to ask him simple questions. I don't get their unique skills is not subSrHntiaHy different had occurred, and ordered him to instruct that it not for the reluctant allowances which the court angry."), others recognize the inherent difficulties from that which an attorney-prosecutor might dis­ officer on how to present a case. This judge several makes for the untrained police prosecutors and the in performing the dual roles of prosecutor and play toward the use of any police officer to prose­ times demonstrated that he does not prefer to have active assistance which it occasionally provides. witness. "We prefer not to do the prosecuting when cute. Juvenile officers speak disdainfully of young arresting officers act as prosecutors. Although he Moreover, the generally low standard of public we have been involved in the arrest because the t policemen who believe they can perform com­ routinely intervenes to assist police in responding defender representation in the Boston Juvenile lawyers on the other side can dig into you and you petently as prosecutors and \'o'ho insist on having I t? legal issues raised by defense motions and objec­ Court fails to exploit prosecutorial weakness to the an opportunity to present their own cases. It is not don't have anyone to take yo~r side." T~e. ranking t tIOns, he does expect the prosecutor to present the degree that one would expect. police prosecutor concurs 10 the OP1010n that facts in a coherent manner at the very least. improbable that some policemen are allowed to Some police prosecutors, in keeping with their arresting officers should not prosecute and cites the prosecute in order to demonstrate to them the It was difficult to determine the extent to which selfperceptions as highly skilled advocates, refuse problems of being one's own witness and making arresting officers lost cases which would have been difficulty of the job. to acknowledge that their work is buttressed by a objections at the same time. Won by more competent prosecutors, since the Juvenile officers are not, however, unanimous helpful court. They interpret th: enurt's efforts to When a prosecution is conducted by an officer observers had no knowledge of the facts of the in the view that one should not prosecute in cases maintain some minimal standards for prosecution other than a regular police prosecutor, it may can· cases other than what came out in court. where he was the arrt!sting officer. While some Ho~­ as evidence that they receive no assistance whatever sist of little more than the police officer's putting ever, it can be said with some certainty that at least regard this as an undesirable practice no matter from the judges. "When you walk into that court, himself on the stand and reading a prepared who is prosecuting, others are convinced that they two cases were lost because of ineffective prosecu- you adhere to the rules of evidence or you will hear 56 57 about it. The judge won't intervene if defense a case by asking some questions. I go in to clarify Finally, the judge turned to the public defender there was a question about the correctness of the raises a technical point and the prosecutor can't a point and end up bringing out all kinds of things, and said, "It seems we have a very technical case judges' rulings on legal points. However, it was answer." "The court won't help us. They hold although it wasn't intended that way. The best here. You know there are ways of getting this evi­ evident that defense counsel is placed in an uncom­ police prosecutors to at least as high a standard as thing that ever happens to a judge is to have two dence in. I'm not going to prosecute this case bur fortable position by having to argue directly against defense attorneys. We get no favors." superior lawyers trying a case. The judge doesn't at some point I'm going to have to ask a few ques­ the jUdge. In a court situation involving lawyer­ have to do anything-.the attorneys do it for him." Other police prosecutors, however, acknowledge tions in the interests of justice." He did, and a prosecutors, the defense would make his argument, delinquency finding resulted. that the judge will intervene when a juvenile offi­ When judges intervene in support of the pros­ the prosecutor his, and the judge would then rule cer has made a mistake or is unable to respond on ecution, normal adversary relationships break In an armed robbery case, the police prosecutor on the question and give his reasons. In the Boston on an issue of law. They justify this practice on down. Objections, if they are made, must be had neglected to elicit testimony from the victim Juvenile Court, there is a discussion back and forth the grounds that they should receive such con­ directed against the judge's own questions and he, tending to show that he was put in fear by the between the judge and defense counsel. It is fre­ sideration in view of the fact that police prosecu­ in turn, must rule on their validity. This distortion knife which one of the assailants had held by his quently difficult to determine the point at which tion costs the taxpayers less than would a system of the adversary process creates a climate which is side. After defense counsel's cross-examination , the the judge has ceased presenting the arguments and of attorney-prosecutors. "Yes, and I think he [the inimical to good advocacy. In this sense, the judge asked the victim a series of questions estab- has made his final ruling, but defense has to stop judge] should [assist the policel After all, it's absence of a qualified prosecutor probably does lishing that he had seen the knife, had been afraid, arguing at that point or risk antagonizing the America's biggest bargain-having police do pros­ far more to stifle capable defense in the Boston and as a result, had given over his money. In this judge. It is also arguable that casting the judge as ecution. No Assistant D.A. could handle our Juvenile Court than it does to encourage it. In case, the judge himself established an essential ele­ the person with responsibility for raising the pros­ caseload." discussing the effect which the introduction. of ment of the crime that the police prosecutor had ecution's legal arguments prejudices him in favor Public defenders generally conceded the basic professional prosecutors might have, one public neglected to establish. of these arguments. . defender conceded that "defense would have to competence of some police prosecutors in present­ Public defender attitudes regarding judicial It would be inaccurate, however, to leave the upgrade itself just to survive." ing simple fact situations in cases which are fun­ intervention vary somewhat. Most feel that they impression that the judges do not also on occasion damentally strong. However, they generally agree Boston Juvenile Court judges make an earnest are placed at a disadvantage in arguing against assist defense counsel. The judges tolerate quite a that police prosecutors are vulnerable to aggressive effort to preserve their posture of neutrality in the untrained prosecutors in that judicial intervention bit of incompetence of the part of defense. One of defense tactics and cannot stand up to such chal­ face of prosecutorial deficiencies. As a rule, the shifts the adversary balance against them. "There the judges repeatedly instructs defense counsel that lenges. One attorney claims that he seeks oppor­ judges require the prosecution to make out the are cases when I felt we were penalized by being they must qualify witnesses by ask~ng them for tunities to take advantage of the untrained police basic case against the juvenile. We have seen them agaiqst the police." Another defender, however, is their names and addresses. He once showed his prosecutors. "Sometimes I make a motion even if resist the impulse to intervene even at the cost of niore sanguine in assessing the impact of such' displeasure at the performance of one of the public the law is not on our side, hoping that the police a dismissal or a finding of not delinquent. The intervention. In relating an incident in which a defenders by telli'ng him that he had missed his won't be able to respond." Our observations, how­ ranking police prosecutor reports that the judges judge brought out an element of a case which the chance to make an effective summation by failing ever, do not indicate that public defenders, as a are not at all pleased when they are forced to throw police had forgotten, the defender saidy "I didn't to bring Out obvious inconsistencies in the pros­ rule, apply heavy pressure on the police prosecu­ a case out because of an inadequate prosecution by feel that justice was miscarried since it was only a ecution's case. The judge then instructed the defend­ tors. Although the defenders credit the Boston a police prosecutor. "The judges will call me in stupid mistake. Why should I benefit from that?" er generally' on the purposes of summ~,.bn and Juvenile Court with maintaining standards of and chew me 'lut. He'll say the officer had a good Judges take the major responsibility for answer­ gave him another opportunity to do it correctly. judicial integrity which are far higher than those pinch but he blew it." However, the consequences ing defense counsel's motions and objections. In juvenile courts generally, and in Massachu­ which are found in other lower courts of the Com­ of repeated dismissals under these circumstances Although they will ask the prosecutor if he has setts particularly, there is relatively little in the way monwealth, they are well aware that its judges will are often greater than the judges are willing to anything to say, they do not expect him to be able of plea-bargaining or its equivalent. In the first intervene to provide aid to a floundering police accept. They do, therefore, assume the burdens of to make legal arguments. For example, during one' place, the type or number of charges which are prosecutor when they feel that it is warranted. prosecution with considerable regularity. Several caSe a defense motion was made to which the brought against a juvenile have no automatic rela­ "Some of the judges will definitely do that. They examples are reported below. judge responded by raising the legal arguments on tionship to sentence. Even where a finding of delin­ start asking questions and take over." The presiding One case which was observed involved a boy the other side. After several exchanges between quency is made by the court and a commitment of justice acknowledged that the imbalance in adver­ charged with several offenses connected with the th . d e JU ge and qefense counsel, the judge turned to the juvenile is ordered to the Department of Youth sary skills that exists in the court often forces theft of a bicycle. The police prosecutor was having the prosecutor and asked him if he had anything Services, the judge has no authority to specify the - judges to discard their neutral role and actively a certain amount of difficulty getting his witness to add, saying, "You really don't have to argue length or terms of the incarceration. Moreover, participate in the presentation of the state's case. to testify to facts rather than to hearsay or opinions . r ve done the argument for you." ' because Massachusetts has no PINS classification, "It's frequent enough that you find you have saved and defense counsel was objecting repeatedly. The observer noted only rare. instances where the option to reduce a complaint from one alleging

58 59 Hcly any discretionary responsibilities, bargains Yet the view of police prosecutors that many found that more than mere presence had been delinquency to one of lesser severity is not avail­ with defense counsel, when they do occur, go to cases are tried when there is no genuine dispute established and that the government had proven able. Finally, with no attorney-prosecutor in the the manner in which the police prosecutor will over the facts and their desire to give certain juve­ its case. Although it appeared that the police pros­ court, there is no community representative avail­ present the state's evidence at the adjudicatory niles "a break" leaves them open to propositions ecutor did believe the boy to be legally culpable, able with authority to negotiate with defense hearing. By controlling the flow of evidence which to "plea-bargain." The lack of f./.lOre formalized he was willing to risk a finding of not deliquent counsel for the purpose of arriving at a "bargain" is submitted for the court's consideration, the police adjustment mechanisms leaves little alternative. rather than overemphasize his crimminal involve­ which fully balances the interests of the State and prosecutor can play an important role in shaping Although police prosecutors obliquely acknowl­ ment. It is interesting, however, that the police the juvenile. In other jurisdictions (Rhode Island, the court's perception of the offense and the juvenile. edge that they make "deals" occasionally with prosecutor made no open effort to alter the judge's for example), it is common for defense and pros­ Since the "character" of the juvenile, as reflected! defense counsel, they are reluctant to describe the view of the case. ecution, under court SUPI vision, to agree upon a in the description of his law-breaking conduct, is process or to discuss the criteria which they employ. In summary, it is clear that the government recommended disposition in return for an admis­ such an essential ingredient in determining dis· . Defenders, however, freely state that they seek and operates under a severe handicap in presenting sion by the juvenile to the facts. However, with position, the power of the police prosecutor to obtain such cooperation from the police prosecu­ cases at the adjudicatory stage in the Boston Juve­ the exception of the previously described proce­ affect the future of the juvenile offender may be tors. "In a case involving violence, for example, I nile Court. Although the best of the regular police dure which one judge employs at arraignment to substantial. But the assumption of this responsi. will offer to admit if he [the police prosecutor] prosecutors have little difficulty in representing the encourage admissions in cases of a minor nature, bility by a police officer, acting outside the review will 'put it in light'-keep out some of the worst state in simple cases whiCh do not involve com­ there is nO formal vehicle in the Boston Juvenile of a qualified State's representative, is wholly unde· facts .... They really.go along with the juvenile plicated fact situations or issues of law, they are Court for the achievement of negotiated settle- sirable. What it amounts to is a kind of benign court idea1." Another defender put it this way, wholly unable to respond effectively to most objec­ ments of cases. deception which is calculated to deprive the court "Very rarely is there a kid they call a 'bad kid: tions and motions. When prosecution is conducted This is not to say, however, that "arrangements" of a full account of the offense without notice, l They will keep out damaging evidence in exchange by the arresting officer, there is no assurance that are never made with police prosecutors in an effort explanation or authority. Moreover, the police, t f?r an admission. They aren't out to get kids." even the most simple of cases will not have to be to bring about some mutually desired outcome. themselves, are extremely uncomfortable in a role I It is difficult to determine the frequency with dismissed because of a failure to establish an essen­ Both police and defenders acknowledge that the more properly placed in the hands of an attorney· t which police prosecutors gear the presentation of tial element of the offense. Under these circum­ interests of justice may require that the presenta­ prosecutor. The ranking police prosecutor expres·. the state's case toward the achievement of a pre­ stances, the court is placed in the difficult position tion of a case be tailored to avoid a disposition sed his view that a police officer should not exercise Qetermined outcome. Several contested cases were of dismissing a large percentage of otherwise viable which is more severe than the circumstances war­ such discretionary authority: observed which suggested this practice. cases or intervening to. assist the prosecution. The rant. Although police prosecutors are uneasy with For example, one boy was charged with two interests of the community in the fait and efficient this responsibility, the very fact that it persists in I don't buy plea-bargaining very much. It is nota armed robberies, normally a crime considered most adjudication of juvenile cases are not furthered in practice may be a measure of its need. One could police function to predetermine in the corridor holl' serious to make a case look. Weare a reporting . serious by the court. The police prosecutor put the either event. Judicial intervention in behalf of the very well argue that in the juvenile court, with its agency; we report the facts to the court and don't victim of the first robbery on the stand as his first prosecution raises significant doubt concerning the commitment to an understanding of juvenile interfere with the co~rt'S job. W~ .should allow t~e I witness. The victim told a story of two older men fairness of the proceeding and is not likely to leave behavior and to the goals of treatment and rehabili­ judges to make their own deCISions. The po\tce and the defendant approaching him and demand­ a juvenile or his parents convinced that "justice tation rather than punishment, such opportunities shouldn't be privy to any knowledge that the court I is blind" in the juvenile courts. Moreover, a high doesn't have. Probation staff will give the other \. ing money. One of the older men held a knife at for prehearing analysis and discussion would be standard of defense assistance will be impossible relevant information; that is their job. I can onll . his side where the victim could see it during the encouraged. in the Boston Juvenile Court so long as aggressive be a policeman. e.ncounter. The police prosecutor then asked ques­ While the opportunities for negotiated disposi­ Also, there is a regulation of the police depart. tlOns specifically directed toward eliciting from and sophisticated representation carries with it the tions are far more limited in juvenile courts than ment which is not always followed perhaps, that threat of a direct adversary contest with the judge. sd the witness the statements that the defendant while in the criminal courts, there is sufficient variety in officers are not permitted to talk to defense couo with the two others stood at the back duri~g the The increase in the number of public defenders the dispositional alternatives which are available unless the victim is present. l wh?le exchange and never said a word or took any assigned to the court and a greater interest in It is up to the court to decide whether there ~e to the juvenile court to encourage its use. Obvi­ juvenile court representation among the new lead­ extenuating circumstances that would justify go~ng actIve part. Similar questions were asked of the ously, a continuance without a finding is far less light on the sentence. That is not a proper functJ~ second victim who responded in the same way. ership of the Massachusetts Defenders is likely to serious in its implications than is an adjudication of the police. The function of the police is to teU It The prosecutor had clearly decided and was sug­ exacerbate this problem in the coming months. of delinquency, or a probation term versus institu­ the way it is without adding or detracting, and to let! gesting to the judge that the youthful defendant Far more cases are "contested" by defenders than tionalization. However, given the police prosecu­ the court make the decision. had been influenced by his companions and was appear to be warranted. The nominal, perfunctory tors' very strong disinclination to make formal The D.A. stands in a different light than thl police. He is more an officer of the court. not committed to criminal behavior. The judge defense which defenders provide in many of these recommendations to the court or to assume pub- 61 60 cases is rarely of any assistance to the juvenile and formulate and implement individualized treatment findin~ of deli~quenc~ until it has an opportunity Services for an indefinite period of tl'me or . diverts greatly needed time and resources from the programs which are responsive to the needs of its to reVIew avaJ1able !Of ormation relating to the . . comnl1t- tal for tnal 10 the adult criminal courts. It is clear investigation and preparation of other, more prom­ client population that this goal can ultimately be juvenile's background and social circumstances and that at no stage in the juvenile court process are ising cases. Many of these "contested" cases could met. In the Boston Juvenile Court, even more than to determine whether a delinquency finding is war­ the dual concerns of community protection and better be resolved through the development of in the juvenile courts of many other jurisdictions, ranted. Accordingly, the court frequently utilizes offender. rehabilitation more sharply focused than negotiated consent decrees or a diversionary pro­ the primary focus for this effort is at the disposi. disposition-type hearings to arrive at case termina­ at the dIsposition inquiry. Certainly, it is the pri­ gram prior to the adjudicatory hearing. However, tion stage. As noted, earlier, Massachusetts makes tions made without a finding. It should also be mary opportunity in the Boston Juvenile Court to with no attorney-prosecutor present with authority no statutory provision for intake screening of noted that the issue of binding over a juvenile for make a reasoned judgment concerning the juvenile to engage in such joint recommendations and to juveniles or for pre-adjudication diversion. More· trial in the criminal courts arises for the first time offende~ who is before the court and to provide approve them in behalf of the community, these over, in keeping with the court's structure as a at the post-adjudicative stage upon the court's own opportunities are not available. formal court of law through adjudication, all social such gUIdance and assistance as may be necessary. The foregoing considerations were prominent investigations and the preparation of social histories " TABLE B.-Dispositions in the Boston Juvenile Court for Th: pro.p~r role of the State's representation at in our recommendations concerning the establish­ and treatment alternatives are deferred until adjudi· 1971 the dlsposltlon stage of juvenile proceedings is Disposition ment of an Office for Juvenile Prosecution and are cation has been completed. In practice, the lack of Number Percent amo~g the ~ost unclear and unsettled questions relatmg to Juvenile prosecution. Whereas many particularly reflected in Standards 2.5 and 2.8 of intake screening, informal adjustments and diver· Probation" . ,., ~ ...... 302 (34.8) Suspended sentence .. . the Gldclelines enumerated in Chapter 7, infra. sion mechanisms means that a very large percent· probatio'n'~ 266 (30.6) have come to accept the need for attorney-prosecu­ Filed ...... 155 (17.9) age of those juveniles who are complained against Committed to tors through adjudication as a necessary ingredient Other ... D.Y.S...... 95 (10.9) I. POST-ADJUDICATION will have their futures determined at disposition. 32 (3.6) of the trend toward greater procedural formality No data. In characterizing the post-adjudicative process as ...... -. 18 (2.1) and as a complement to the increasing involve­ From its inception in 1906, juvenile delinquency Total ...... 868 (99.9) ment of defense counsel, there remains strong resis­ legislation in the state of Massachusetts has had as being the ,nost important stage in the court's proce· tance to the nodon that the prosecuting official its avowed purpose "that the care, custody and dis­ dures, former Presiding Justice John J. Connelly motion without prior notice and is considered as should be a significant factor at the disposition cipline of the children brought before the court stated: "It is the 'last clear chance' of the juvenile part of the normal dispositioml hearing. sta~e. In essence, opposition is founded upon the shall approximate as nearly as possible that which court to influence and change the attitudes and behef that the primary goals of the juvenile COurt they should receive from their parents, and that, behavior of the child." 101 As a practical matter, Combining disposition hearings which are con­ movem.ent-the provision of aid, encouragement as far as practicable, they shall be treated, not as disposition may be more accurately described as the du~te~ following a finding of delinquency and those and. gUIdance to jnveniles in trouble-can best be criminals, but as children in need of aid, encourage­ "only clear chance" which is currently available in wh~di are conducted in cases not resulting in a' dellOquency finding, it can realistically be assumed achIeved in a cooperative, harmonious atmosphere ment and guidance." 99 the Boston Juvenile Court. that as many as 90 % of the cases handled in the o~e which is free of the elements of adversary con~ Consistent with this end, Judge Harvey Hum­ As is shown in Table 8, 868 formal dispositions Bost?n Court proceed through some form fl~ct. The presence of the prosecuting attorney with phrey Baker, the first Presiding Justice of the Bos­ were made in the Boston Juvenile Court during J~~enile dlsposltlonal inquiry. Given the absence of an hIS identification as an agent of punishment, it is ton Juvenile Court, declared that the primary 1971. These represent dispositions which were ?f . mtake screening or diversion mechanism in the argued, would only impede the work of those objective of the court is "to put each child who following a delinquency adjudication. They do not court, the overwhelming majority of court referrals whose basic concerns are with the welfare of the comes before it in a normal relationship to society include a very large number of cases in which the allegations of the complaint may be established mu~t await a judicial finding that the allegations juvenile. It would mark, it is feared, the final cor­ as promptly and as permanently as possible ..." 100 agal~st the juvenile have been proved before pro­ ruption of the social welfare ideals of the juvenile In spite of the many years since Judge Baker's to the court's satisfaction but which are concluded ~eedl~g for the first time to an evaluation of the court. It is our belief, however, that the proseclltor tenure on the court, the achievement of this goal without an official finding of delinquency. Court actions of this type might include continuances JuveOlle's treatment needs and a consideration of can play an important role in making disposition remains as the foremost articulated concern of the alternate co' . without a finding, cases which are filed without a . . urt actIons. NotwIthstanding a finding a far more vital and meaningful experience. court's personnel and could be regarded as an f o mvolvement th' '1' d ' It can safely be said that at the present time acceptable raison de'etre for any progressive juve­ finding and some cases which the court may dis· h . ,e Juvem e JU ge s discretionary aut amy at this stage is quite broad. Depending the contributions of prosecution and defense to nile justice system. However, it is in a court's ability miss without a Ending. Because the court's general r prac:ice is to conclude an adjudication hearing ~jth upo~ th~ cir~umstances of the offense the com- disposition inquiries in the Boston Juvenile Court to provide effective diagnostic services and to I munIty's . ' a bnef statement that the complaint's allegatIOns securIty concerns and the rehabilitative are minimal. For a variety of reasons, neither the needs and pr . f h' . 110 Mass. Gen. Laws, c. 119, § 53. have been proven (in appropriate cases), it pre· osp~cts 0 t e Juvenlle, court actions p~li~e prosecutors nor the public defenders appear 100 Quoted in Connelly, Post·adjlldicatio/1 Techlliqlles ill the COU ld range fl' 1 serves its options to make or withold an official rom re atlve y non-restrictive contin- wIlhng or able to assist the court in the ofun Bluton JI/venile Court, in Selected Papers Presented at the uances without fi d' h Z,witllte for JIIt'cnile COlirt Jlldges, 32 (April 1961 in Cam· . a n mg t rough such very severe actIons as co . I agonizing process of making effective dispositional bridge, Mass.). 101 Ibid. mmltta to' the Department of Youth determinations. In the final analysis, the court must 62 63 rely on its own internal resources and ingenuity to these, the prosecutor described extenuating;"d,r. the juvenile court process itself. s~l's remarks clearly had no relevance to the ques­ find workable solutions to the very difficult prob­ cumstances for the court's consideration. Although" : In our observations of ninety-one disposition tlOn of the defendant's emotional problems which lems whkh are presented to it. It is only in the he suggested that a light disposition would be hearings, defense counsel offered specific recom­ ,,:as obv~ously what the judge considered most sig­ rarest of instances that the representatives of the appropriate in these two cases, no specific disposi. mendations to the court in only nineteen cases. nIficant m determining an appropriate disposition. state or of the juvenile add anything to the hear­ tional recommendations were incorporated in the These nineteen recommendations included a large The judge then asked the probation officer to ing which might expand the body of information, prosecutors comments. In fact, with the exception percentage of requests for continuances for clinical inform his about the treatment possibilities that perceptions or alternatives which is already avail­ of the aforementioned rape case, prosecutors made studies. Even when specific recommendations for were available to the Department of Youth Ser­ able to the court. no specific recommendations to the court in any of !)fobation are made, no attention is given to the vices. Probation could not give an informed answer. the cases observed and, with the exception of the ' terms and conditions for probation. In eight addi­ In the Boston Juvenile Court mo~e than half The judge then remarked that he hated to "pin a five cases cited above, made no overt effort to tional cases, defense counsel merely made a general of the cases adjudicated are, for all practical pur­ 13 year old kid with this," but that he had no influence disposition. "pitch" for leniency. poses, disposed of on the same day as the adjudi­ choice but to commit. The failure of defense coun­ catory hearings. This group includes many cases Of course, another way in which prosecutors in The typical "pitch" involves a statement by the sel to offer any other alternative precluded there which are continued without a finding. Although the Boston Juvenile Court may attempt to influ· defense counsel alluding to the minor nature of the being even a meaningful exploration of the needs these cases are still technically open, it is rare that ence a dispositional determination is by their pre· offense, the lack of prior involvement, and often, of the child and the resources available to meet any further action is taken by the court. Police pros­ sentation of the state's case at the adjudicatory hear· the suggestion that bad companions are the root those needs. ecutors are present at disposition only when it ing. It is at this stage-in the depiction of the of the problem and that the child is not himself In only one case-a startling figure-did defense immediately follows the adjudication hearing. In offense and its surrounding circumstances-that a "bad kid." Another suggestion made several times voice a~y objection to or controvert in any way those cases which are continued for disposition, the the court's perception of the juvenile's character by the defense is that, as a result of his apprehen­ the findmgs of the probation or clinic staff. In that police prosecutors play no role at all and are not may be shaped. However, as described earlier, this ' sion, the juvenile has now realized the error of his case, defense counsel objected to the probation even present in the courtroom. The State, therefore, process often operates in secret and is based upon ways and will not stray again. These "pitches" are officer including a dismissed case as part of the is not represented in those cases which are deferred withholding evidence from the court's attention almost boiler plate in their content and their deliv­ juvenile's prior record. for the preparation of clinical reports and social rather than providing it with such information as ery reflects little conviction on the part of defense The figures compiled by the observer show that histories-in practice, those cases which the court may be necessary to formulate a knowledgeable, ' counsel. They are rarely supported by information l in the large majority of disposition inquiries, de­ deems as requiring the broadest range of assistance disposition. likely to tonvince the court that they are derived fense counsel is virtually superfluous. He neither in determining an appropriate disposition. The physical absence of police prosecutors duro from, a well-considered analysis of the juvenile's recommends a specific disposition nor even makes But even in those cases where the police prose­ ing approximately one-half the disposition hearings needs or that they have any substantial predictive a general "pitch" r~ising the points which might cutor is present at disposition-where adjudication conducted in the Boston Juvenile Court stands in ;, value. On two occasions following such an appeal be favorable to the defendant. In most cases, about and disposition are conducted on the same day­ sharp contrast to the very high percentage of cases for leniency, the judge asked the defense counsel 70 %, defense simply "agrees" to the recommenda­ be generally takes no active part in the hearing. in which defense counsel routinely appears at dis· ' how he knew his statements to be true. In both tions of the probation and clinic staff, or has noth­ Although the court commonly asks the prosecutor position. With the exception of the relatively few i instances, defense counsel remained silent. ing to say at all. This lack of activity is especially if he has any objection to a proposed disposition, cases in which counsel has been waived, defense, One example will illustrate the lack of effort significant in light of the fact that the judges even this opportunity to participate is rarely exer­ counsel representation at disposition is nearly total. ' demonstrated by most MDC attorneys towards always directly inquire of defense counsel if they cised. In fact, of a total of ninety-one dispositions However, in terms of impact, it is very doubtful ' devising dispositional alternatives or exploring have anything to say at disposition. which were observed in the Boston Juvenile Court, that defense counsel's contribution at the disposi· treatment resources. A thirteen year old with a It has previously been mentioned that the defen­ the police prosecutor voiced his disagreement on tion stage is very much greater than that of the ~ substantial record in the juvenile court was found ders playa minimal role during disposition inqui­ only one occasion. In that case, one which involved police prosecutors. Considering the importance of; de r tnquent on serious chal,"ges of rape and assault. ries. They normally seem willing to allow the other an incident of rape committed by a boy with ~ this stage and the opportunities which are available ~ The court clinic report recommended a "Structured participants in the process-judge, probation staff serious record of violent crime, the prosecutor to defense counsel to advance the best interests of residential setting" in light of the serious emotional and clinic staff-to decide the appropriate disposi­ objected to a defense proposal for a suspended sen­ his client in a manner which is wholly at one with problems diagnosed and the violent nature of his ac' . . . tion. The difficulty of successfully countering the tence. His argument-that the juvenile was a dan­ the fundamental goals of the juvenile court, h~ tIvItIes. When the judge asked defense counsel "experts" is compounded by the fact that disposi­ g~r to the community-was accepted by the court apparent failure to meet even the minimal stan· What he had to say, the attorney made a short tion hearings do not resemble adversary proceed­ and the boy was committed to the Department of dards of juvenile court practice in unfortunate. Not Spel"ch in which he mentioned the age of the ings. Police prosecutors, the natural adversaries are Youth Services. In four other cases, the prosecutor only does it represent an obvious disservice to the defendant and implied that he had been corrupted - , either not present, or are present and silent. Proba- volunteered his comments at disposition. In two of juvenile whose future is being determined but to by a~ unfortunate choice of friends. Defense coun- tion officers do not take the stand and testify. They

64 65

'\ logical report and was asked by the judge to recom­ a positive bearing on disposition-e.g.) an apparent In many cases, no recommendation is made at the converse with the judge and respond to his ques­ mend a placement. He replied that he would need commitment to the juvenile and his problems disposition hearing. Judges often rebuke probation tions. Ciinic reports are handed to the judge for . time to explore the pqssibilities and suggested a together with the financial resources to gain access officers for failing to carry out a recommended his perusal. Defense counsel has generally read a continuance for that purpose which was granted. to private treatment programs), the ability of treatment plan or to secure a placement which they copy of the report before t~e hearing, but :h.e find­ During all of this time, defense counsel remained counsel to offet the court dispositional alternatives had previously suggested. ings are not openly discuss'ed in court. CI.JnIC staff silent while the .court was obviously fishing for short of incar~eraf.ion can be a cruci~l factor. To are only rarely present in court. Such a settlllg poseR The judges demonstrate ~ commitment to the a court which treats institutional commitment as obvious role difficulties for the defense attorney. suggestions from 'any quarter. treatment and rehabilitation goals of the. juvenile a last resort, the recommendation of effective alter­ However, it also offers opportunities for advocacy The possible effect of defense counsel on court court. Even defendants with extensive prior records n~tives by' defense counsel is very likely to gain which have largely been defaulted. A disposition dispositions is illustrated by the dar a presented in are often given a third or fourth chance within the the court's approval. hearing was observed which followed a three week Table 9. These data suggest that the differenti;li , community. Faced with a child with ~I particularly' conti~uance for full psychological and physical effects of counsel type on adjudications, as noted Although police prosecutors are very negative long record, one judg~ remarked that he was wil­ studies. The defendant was a 16 year old boy who carlier, are also present in dispositions which fol­ about the effectiveness of most 'dispositional alter­ ling to give psychiatric therapy one more chance if had bem involved in the preceeding six months low a finding of delinquency. In examining such natives which are available to the court, they fctl' there was any hope at all of working successfully in a series of wallet thefts from women's handbags. dispositions in the Boston Juvenile Court during that they should hot participate in the disposition with the youth. The juqges are op~n to any and all He had no record prior to these six months and no 1971, it appears that as a group, juveniles who inquiry or make recommendations concerning dis­ suggestions at disposition, but the unfortiInate fact drug involvement was indicated. After reading the were represented by the public defender received positions. They feel that these-decisions should be is that defense counsel and, to a lesser degree, the reports, the judge asked the probation officer for substantially harsher dispositions than those juve­ made by the judge with the 'assistance of probation probation staff, do not appear to contribute much his recommend~tion. The probation officer said that niles who waived counselor were represented by and the defense. Any broader role for the police at this stage. the boy had informed him that he had an appoint­ other types of counsel. These differences are most prosecutor :is seen as being in conflict with the It is apparent thl:1.t the dispositional process in ment ~o see. about a place in a residential school, evident in commitments to the Department of non-advisory position which police officers should the Boston Juvenile Court has become routinized but that the probation staff had been unable to Youth Services-the most extreme of the available take in court. One police prosecutor declared, and predictable. There is widespread frustration confirm that with the school authorities. The judge dispositional alternatives. The data indicate that "Naturally, we think all the little s.o.b.'s should with the lack of effective dispositional opportuni­ ordered a recess and instructed the probation offi­ while almost 14 % of the delinquent juveniles who go away [stated in jest]. But seriously, there are ties and the judges receive very little support in cer to Ly to get in touch with the school. After are represented by the public defender are com­ other people here to make that decision. I don't fashioning dispositions. Although the judges treat : < feel it is our role." fifteen minutes, the parties re-entered the court. mitted, not a single instance of commitment was f' commitment as a last resort and apply it in a The probation officer informed that a place was not dl )vered among those juveniles who were repre­ Generally, the judges do not receive a great deal relatively small percentage oi cases, the majority available for this bOi because they did not believe sented by private appointed, private retained or of help from the probation staff at disposition. The of juveniles who arc returned to the community, they could offer him appropriate services. The other non-public defender counsel. While a num- probation officer has the juvenile's "green sheet"­ whether under supervision or not, are receiving judge. then ordered another recess in order to sum­ ber of variables may contribute to the greater the list of his previous court contacts-but little or little more than "another chance" to straighten out. mon the Department of Youth Services liaison into success of private retained counsel (the ability and no information beyond that. Even the data on prior Even where juveniles are released on probation, willingness to retain counsel may well coincide court. After another five minutes, the hearing records are often disorganized and the probation there is little exploration in court of the terms and with other family characteristics which could have ., officer is sometimes unable to answer the judge's conditions of the probation. resumed again. The liaison was given the psycho- : ; specific questions without delaying and fumbling. More than any other, the disposition stage in the , ! TABLE 9.- -Dispositions in the Boston Juvenile Court for 1971 by Counsel Type (N = 752) a It is the practice of one judge to ask the probation Boston Juvenile Court is marked by a non-adver­ officer if the defendant has ever been convicted of sary approach and a desire to reach a concensus of Disposition violating any law. The judges also inquire as to opinion. The probation officers are used primarily Suspended whether the defendant is presently under the to provide the court with "neutral" information sentence Committed I Counsel Probation probation Filed to D.Y.S. other Tot~ercent supervision of any court. If the probation officer is conce.rning the juvenile'S past record and social NumberPercent NumberPercent NumberPercent NumberPerCG::1tNumberPercentNumber ---- . unable to efficiently extract this data from the green history. Police prosecutors almost never recom­ 1 (32" 0 (0.0) 3 (9.8) 31 (100.0) 0 sheet, the judges examine the sheet themselves. mend dispositions to the cuurt and the public defen­ Waived ...... ·· .... · 22 (70.9) 20~ (16.1) 114 (17:8) 87 (13.6) 18 (2.8) 640 (100. ) Public defender ...... 219 (34.2) 0 0 .Y 16 (31.6) 5 (15.6) a (0.0) a (0.0) 32 (10 . ) Social histories are prepared by the probation staff der, when he does make a recommendation, only Private, appointed .... . 11 (34.4) (50.0) 8 (19.5) a (0.0) 1 (2.4) 41 (100.0) 18 (43.9) and submitted to the court only when cases are infrequently will prtJvide the court with useful Private, retained .. . .. 1~ ~~!:;~ 5 (62.5) 0 (0.0) 1 (12.5) 8 (1~ Other ...... a (0.0) continued for disposition. Dispositional recom­ supporting information. In this setting, the judge of the 868 d',spositions record. ed for 1971- • This table includes only those case6 for which bo th counse I 86.6% mendations are made only at the court's request . assumes almost total responsibility for obtaining type and disposition were available. These 752 cases represent 66 67 information, proposing alternativ..: treatment plans, active partICIpation of an attorney-prosecutor at CHAPTER VI recommending diagnostic procedures, evaluating disposition, the Gltidelines (Chapter 7, infra) seek the clinic's findings and examining the probation to encourage broader opportunities for the develop­ officer or others who may appear at disposition. ment of jointly considered dispositional proposals. . , Although the judges frequently invite suggestions In addition to playing an independent role at dis­ . from those present, they are rarely forthcoming. position the prosecutor is seen as a vital catalyst for There is almost no cross-discussion among defense the full involvement of defense counsel. PROSECUTION IN OTHER REPRESENTATIVE JUVENILE COURTS counsel, the police prosecutor, and probation staff. Second, probation officers should not be cast in The problem of providing effective services to the role of adversaries to defense counsel. However, juveniles who are in need of help goes well beyond at the disposition hearing, it is very difficult for Research undertaken in one (and j~'risdicti~n visits. It is important to note at the out~et that the the scope of the juvenile court's powers and the the defenders to contest the information, findings ~Jle findings and recommendations emanating from on-site reviews were brief, were largely impres­ nature of its dispositional process. In the final or recommendations submitted to the court by pro­ it) may have only limited applicability elsewhere sionistic, and were not supported by statistical data. analysis, no juvenile court, whatever its intentions bation or clinic staff without provoking this very if conditions or expectations of other jurisdictions These reviews did provide sufficient opportunity, ot organization, can achieve its child 'welfare goals consequence. As one defender put it: "~With the are quite different from the one being studied. An however, to determine wpether conditions and without broad public support for the allocation of police, we know we are in an adversary role. We effort has been made, therefore, both through problems were similar to those found within the desperately needed resources. However even within can handle that and be amicable afterward. With literature ~earches and through brief on-site visits, Boston Juvenile Court. As will be noted in the the COurf.'S resource limitations, opportunities do probation, especially the older ones, the situation is ' to determine whether certain common conditions material that follows, although there were signifi­ exist for strengthening the dispositional process so different. They are not used to being cast as an exist in a variety of juvenile courts which might cant differences among the courts reviewed, for the as to advance the court's efforts in meeting the adversary." Because the public defenders are suggest that the findings and recommendations most part, the findings and recommendations made rehabilitative needs of juveniles through thought­ dependent upon the probation staff for consider· made for the Boston Juvenile Court might be with reference to the Boston Juvenile Court were ful, informed and responsive dispositional pro­ able information, they are not apt to endanger their applicable for other courts as well. directly applicable or relevant to other courts as grams. It is believed that the creation of a role for' relationship by challenging the probation officer Six courts were selected for review: Atlanta, well. an attorney-prosecutor at the disposition stage can l at the disposition hearing. The presence of a pro· Hartford, Metropolis, Providence, Salt Lake City, be an important first step in that direction. secutor at the disposition hearing is designed to ' and Seattle. For three of the courts-Atlanta, Salt A. THE FULTON COUNTy First, there is no vehicle for the development of encourage a more vigorous examination of disposi· Lake 'City, and Seattle-the review was made pri-. JUVENILE COURT, ATLANTA, joint dispositional recommendations involving the tional alternatives while at the same time providing marily through an analysis of an excellent study, GEORGIA2 participation of prosecution, defense and probation. a protective "buffer" for non-legal probation and Three lttvenile COltrts, A Comparative Stttdy, pre­ Although defenders often do consult with proba­ Prosecution in the Fulton County Juvenile Court clinic staff whose recommendations are in dispute. pared by the Institute for Court Management, tion officers prior to the disposition hearing and is handled by the equivalent of one full-time assis­ Lastly, the Guidelines recognize that the com· University of Denver Law Center in 1972. read the clinic reports and social histories, there is tant district attorney.3 Without question, as of the munity's interests in protecting its security do not Although that study was not focused on prosecu­ little evidence that their role is more than passive. time of the Institute for Court Management Study, cease at the adjudication stage and neither should tion in the three juvenile courts, it did examine Suggestions by defense attorneys concerning pro­ the prosecutor played an extremely limited role in its representation. In the small number of cases prosecution issues and represented one of the few posed dispositions are not always welcomed by the court. The prosecutor, for example, has no role where confinement is deemed viral to the rehabili· recent studies of juvenile justice which did so. probation officers. When asked if defenders do in preparing court petitions in screening cases at tation of the juvenile or to protect the community Hartford, Metropolis, and Providence were suggest dispositional alternatives, the chief proba­ the intake stage,4 or in presenting evidence at prob­ from a substantial threat to its safety, it should be ;. . selected because they represented different types of tion officer stated: "Now we're getting into the able cause hearings. Further, the investigation of the prosecutor's responsibility to argue for com· " courts (e.g., statewide jurisdiction and local; large bargaining situation. If they do it, they shouldn't. juvenile cases, for the most part, is undertaken not and medium caseloads; and different forms of pro­ There is an exchange of infor.mation but there are mitment. In the vast majority of cases, however, t· secution), which were geographically convenient by the prosecutor, but by the investigation unit of very few instances where there is disagreement be­ the prosecutor 'Vould be expected to encourage the and were willing to cooperate fully with the on-site tween the defense attorney and the probation officer. least restrictive dispositional alternatives which are 2 The Institute for Court Management, Three ]!IvelJile Courts, A Comparative Study (1972) at 207-216, 233-259, 1 Met 1" h 1i .• They [defense attorneys] have a right of appeal if consistant with the service and discliplinary needs '. ropo IS IS t e CtJtIOUS name of a large eastern ciry. It 399-413 (hereinafter referred to as Institute Study). IS Ide~tified in this fashion at the request of city officials. The 3 Id" at 207. they want to exercise it." In recommending the of the juvenile. analysIs of p '. h M 1" . . " rosecutJon 11.1 t e etropo IS Juventle COUrt was initIally mad h '. -I Id' l at 208, 211. This lack of review is even more signifi. . e at t e request of cIty offiCIals who were attempt. cant in Atlanta than in Boston since the Atlanta Police Depart. Ing to evaluate the effectiveness of a federally funded experi. mental juvenile prosecutor project. ment does virtually no screening of cases. "Our policy has been to take everything to juvenile coure." Id., at 238.

68 69 ls attorneys about their role which is similar to that petitions that are prepared are overly broad. B. THE SECOND DISTRICT the probation unir,n It is interesting to note that expressed in Atlanta: Some changes have been made to accomodate JUVENILE COURT, SALT LAKE the results of any investigation und~rtaken are made some of the complaints of the prosecuto!.". To pre­ . CITY, UTAH They prosecute contested delinquencies when they available both to prosecution and to defense coun­ ha ve not participated in the screening process, inter­ 0 vent probation from adjusting too many serious By statute, the county attOrney' (who primarily sel. The apparent result of this division of respon­ viewed policemen or other witnesses, or selected the cases, a new policy has been established that there handles civil matters) and not the district attOrney sibility is that the prosecutor is often not prepared most appropriate charge or charges. Secondly, pro­ can be no more than twO adjustments on a patti. performs the prosecution function in the juvenile for the adjudication hearings: bation intake staff do not interview police or other IS cular child without a formal filing.lot Further, n courr. The statute specifying- a prosecuting func- . witnesses before filing. 25 . And yet the Fulton COllnty juvenile prosecutor child formally on probation who reoffends must go don first went into effect in 1971. At the time of Is under a severe handicap when her primary respon­ As in Atlanta, defense counsel expressed concerns back before a judge without any possibility of the Institute Study, two county attorneys were sibility in this Court is to try the case someone else about the process which suggest the value of an adjustmenr.15 It is doubtful that such rigid require. assigned to the juvenile court on a full-time basis, not under ber slIpervision has prepared, And some­ ,expanded role for prosecution. First of all, defense times a case is calendared" the day before the trial ments are reall)r responsive to the needs of improv· and one county attOrney served the court on a half- counsel stated that county attorneys are needed date, and the prosecutor can only do a laSt minute ing the prosecutor's role in the court. The prose, ttme. b'asts. 10 1nterestmg '11 y, t le county attorneys to review referrals to court on probable cause preparation job: 'We're lucky regnrding our trials; cutor has also begun the process of providing some ' have greater responsibility, for processing and pre-' grounds.20 Secondly, defense counsel suggested we're often not prepared.' S assistance to probation investigation staff in pre· paring cases of dependent or neglected children that judges with a strong treatment orientation In addition co the limitations just described, the paring petitions and cases, but this is still done than with delinquent youth. In dependency and tended to make social weirk judgments (mandating prosecutor plays no role at disposition in Fulton primarily on an informal basis.lO After reviewing , i1eglect cases, the county attorney screens all formal treatment) even though there may not be a legal County.9 Thus, in sumnnry, the prosecutor has the prosecution role, the Institute, among other : i cases and must concur that a case has merit before }; : basis for an adjudication of delinquency.27 a very minor role in the juvenile justice process, things, recommended that the investigation unit : i it can be filed. 20 Further) most petitions are actually Juvenile police officers in Salt Lake also with virtually no pre- or post-adjudication respon­ of the probation department should be reorganized prepared by secretaries who work under the direc­ expressed a need for an expanded prosecutorial sibility and little or no opportunity to prepare for under the direction of the district attorney, and the tion of the county attorneys. County attorneys have role, particularly in areas involving case investiga- ' the adjudicarfon hearing. The assistant district preparation of delinquency and unruly petitions no such role with reference to delinquency peti­ rion and preparation, meeting procedural require­ attorney assigned to the court seriously questions should be under his direction: tions. The decision whether or not to file such ments, and establishing criteria .for diversion and the value of having a professional prosecutor when petitions is determined primarily by intake proba- The legal role of a juvenile court, now well estab· referral of cases to the court.28 The importance of the role is so limited.IO She also complains about lislled, requires a stronger role for the district attar· Mn. sta.ff 21 .F or t h e most part, county attorneys guidance in this area is underscored by a!1 admis­ the lack of clear and regularized procedure in the ney in this court ... It makes little sense to have neither screen police referrals for legal sufficiency" sion of one officer, for example, that Miranda is court and expresses concern both about the extent the district attorney pro!:!:cute a trial when the nor play any role in determining whether a petition not followed, but "our practices are rarely chal­ and nature of the screening that takes place at designation of the charges and their embodiment should be filed. 22 The exception to this· is that in a petition have not been performed under dis· lenged in court." 29 county attorneys may participate in intake deci­ intake, the poor investigations of the probation trict attorney direction. Similarly, it is inappropriate departments, and the limited effectiveness of pro­ sions related to serious crimes. The primary intake to the pursuit of justice when trial preparation, C. THE KING COUNTY JUVENILE bation sen·ices.ll Defense counsel expressed some officer for the juvenile court estimated that the including witness interviewing and designation are COURT, SEATTLE, WASHINGTON similar concerns; for example, defense counsel determined by court staff rather than prosecutor county attorneys are consulted in about 5 % of the staff. It is also unfair to juveniles when petitions 23 raised serious questions about the effecti~eness of cases. The county attorneys do, occassionally, The Institute found in its comparative study are filed without provision for routine legal scrutiny probation services, the quality of probation investi­ that the most advanced system of prosecution of police reports to ascertain whether supportive prepare forms for delinquency petitions, but the gacion, and the informality of the various hearings evidence is at least sufficient to a probable cause petitions are prepared by secretaries who work for among the three cities, without question, existed 30 (e.g,! "referees always find probable cause at preli­ standard. \Y/e are talking here of relating respon· \ intake staff and there is no prosecutorial supervi­ in Seattle. The Annual Report of the Prosecuting minary hearings even when it does not exist") .12 sibility with authority, and further, of regularizing Attorney of King County for the year ~nding 31 sion over their work. 24 In addition, the defenders find tl.1at many of the the procedures and practices in the interest of both December, 1971 contains the following section on the child and the public. The welfare of our youth There is great concern expressed by the county and the protection of our society compel that the 25 Ibid. SId.• at 208. 18 Id., at 217. 26 Id., at 221. n [d•• at 211 prosecutor no longer be a stepchild in the juvenile 10 Id., at 217-218 . 27 id., at 221-222. .. TI.e assistant district anomey has no control over the trial 17 court. 20 Id., at 218. 28 Id., at 261-267. calendar in Fulton County. 21 Ibid. 29 id., at 263-264. S Institute Study at 208. 13Id., at 213. 22 Ibid. 30 Virtually all of the Institute findings were corroborateci by !) [d., at 210 HId., at 208. one of the Center's graduate students who worked as an intern 23 Id., at 219. 10 Ibid. 15 Id., at 209. in the King's County Prosecutor's office juvenile division dur­ l'i.Id., ac 207. 161d., at 212. 24 Ibid. ing the summer of 1971. Ii !d., at 403-404. 12 Id.• at 213-215. 71 70 -----.-:-._ ..-. __ ...... _..-----. -----=_.;;;;;;;;;:;==------,-- ",..""'~ .. .>..=».±>"">$,"""'-"'-.--'-'''''

with the State Legislature, the the d epartmen t . The change in the structure of decisionmaking Study and by the Center's graduate student who. nd other governmental agencIes; · f the Juvenile Court prosecutors, and Attorney G en era 1, a .. now clear. Prosecutors now often consult with worked as an intern for the prosecutor's office. t e dutleS 0 . ~ i is h 12. Administration and supervlsLOn of. the ~uve. the planned expansion of their dunes: j police. officers about a case prior to the time it is This concern relates to the fact that the prosecutor's. nile Departme'1t's legal support staff, whiCh Mil be ".: submitted to probation st~ff.35 When a case reaches office, aside from representing the state in individual' The duties of the Juvenile Court deP:lties b 197~ ed to tlJ e Prosecutor's control on 1 January, . . II limited to preparation for, an trans f err . . f h were essentla y fi d' and 1972. By absorbing administrati~e superv~sLOn 0 t e intake, the in"take office~ also often 'reviews a file cases, is also counsel to the Juvenile Department . f h te in fact n mg representation 0 t e sea. . ' . Legal Department of the Juve~tle, that IS, the han· with a prosecutor tD check for legal sufficiency.3o of the Superior Court. h' and in juvemle dehnquency . f .. s and the setting of calendars, the declination earmgs In 1971 after several dlmg 0 petItiOn I .:Finally, legal scree'ning is done by petition clerks The legal basis for the role of the prosecutor tis and dependency cases. . . . '. f h __ • '11 have assumed administrative contro 37 Prosecutor WI . f' '1 who work under the direction of prosecutors. Up legal counsel to the cour.t is not appare~t from' months of discussions between representatives 0 ; e of the presentation and prosecutLOn 0 . juvem e to now, however, intake staff still can screen cases uvenile Court and the Prosecutor, a lett~r of un e:- 31 any authority describing the juvenile court. A Com­ J. d f d b these twO agenc1es wherelll offenses. standing was ra te y . h' not on the list of 30 specified offenses without missioner of the juvenile court describes t,he l~gfll . Attorney agreed to perform, w1t III Although the prosecutor's office may not be. the Prosecuting bT' the consulting prosecution staff. basis of this rule as follows: . , the limitations of his manpower capa 1 mes, . 1 handling all these responsibilities at the 'The direct involvement of prosecution in these e ff ectlVe y . d Under the constitution and laws of the State of following additional functions: . .' 11 . it is clear from the Institute ~tu y IS . . . h mgs III a present tlme, '. areas consistent with the recommendations of this Washington and Rules of the Juvenile Court, the 1. Repres'::ntation at dlspos1t1?n . ear . that it is performing the followlOg three. . 'lnquency and contributing to dehn­ report. So is the fact that the court now has (four) Prosecuting Attorney is legal advisor to the Court juvenile del as . police reports and interviewing full-time juvenile prosecutors. It is not clear, and legal officer primarily responsible for law quency cases; . b 1 Screenmg 2 Participation in preliminary hearmgs, pro. a- · . otr.cers and witnesses to ascertain whether the however, from the Institute Study, whether the enforcement in the county. po1 Ice .~a . . 1 . I II 'dence which could be presented at tria IS ega y tion . review hearings, and probation revocation eVI . . prosecutor's office is assuming a traditional prose­ From this description of authority and from direct sufficient to justify the filing of a petltlon; . hearings; .. cutorial orientation now that .it has new responsi­ 2. Supervision of the preparation of dehnquency observations of prosecutor functions, it appears 3 Preparation of legal opmlons upon reque.st bility, or whether it is shaping its role to meet the of th~ Juvenile Department of the Superior Court III that the prosecutor has a close relation to the judi­ petitions; . f ted broader objectives of the juvenile court. At one King County and the drafting of formal.r~quests oo~ '3. The presentation or prosecutiOn 0 contes ciary branch of Washington government. A chart point in the Institute Study, though, prosecutors behalf of that department for legal op1mons fr causes.32 used at the briefing shows the prosecutor's office as were asked to state their philosophy: the State Attorney General; , The role of prosecution expanded in response to part of the judiciary rather than as part of the 4. Participation in the Juvenile De~a:tment s Prosecuting attorneys in the court state a broad execudve, which is where the public defenders are . for the purpose of adv1S1ng and concern over the broad discretion and power .qf sta ff meetings . h' h · . the King County Juvenile Court. PrIOr philosophy: Assistance in the protection of the shown. counseling the staff regarding legal que:tlons w IC prob ationm . c6mmunity, obtaining court adherence to regular-' . I'n connection with the operatIOns of the The section of the Annual Report of the Prose­ arise to the reshaping of the prosecution functIOn, p~o. ized procedures to ensure that justice is done in each department; . J '1 bation apparently had virtually unlimite~ author~ty case and that the system works, and to assist police cutor cited earliet indicates that legal advice is 5. Reviewing on a continuing baSIS the. uvenl e to screen cases at the intake stage and thIS authon~ detention and probation comprehension of legal being given to the Juvenile Department on a wide Department's field procedures and rendenng legal 1 was often utilized. For example, during 197 ,0. procedures and their regularized application in this range of subjects. From the agreement reached, advice with respect thereto; . juvenile justice system.39 the court receives legal opinions of the prosecutor 6 Assisting Juvenile Department personnel m 4,111 cases referred to the juvenile court, only drafting and securing search warrants and warrants 1,215 were filed, while 2,986 were adjusted at :he It is not clear from this s,tatement whether pro­ on Juvenile Department staff operations, field of apprehension; . intake stage.33 To insure some review of probation secutors are motivated strictly by legal concern or procedures, staff training programs, policles, admin­ 7. Advising and counseling the Juvemle Depa~t- 1 was promul. istrative memoranda, and special orders. As a decisions at this stage, a new court ru e . . are motivated as well by the desire to do what may ment respecting court decisions ~nd propos~d legiS­ be best for the juveniles involved if this would related function, the prosecutor is to serve as liaison lation which relate to its operations, practices, and gated dictating that charges of 30 specified offens~ for the Juvenile Department to the Attorney Gen­ . '1 felonies cannot be dismissed or handl 'c . be consistent with the public safety. policies; . prrmart y, 1 of i; . eral, the legislature, and other agencies. 8. Participation in the J uvemle Department Aside from this issue, there is another concern b informal supervision without the approva '! : staff training program and in the ~evelo~rr:ent and about the role of prosecutor in the King County A quick review of the authority cited by the prosecuting attorney.34. planning of comprehensive in-serViCe trammg pro­ ~e t· Court which was expressed both in the Institute Commissioner failed to support the proposition grams by rendering legal advice and counsel to the . Attorney of Kiog1 ' that the prosecutor has a legal duty to advise the 31 Annual Report of the Prosecu~lng ber 31, 1971, 35 Id., at 226. A retired police officer now works for the County, Washington, for the year ending Decem staff training officer; . prosecutor and coordinates the efforts of the 20 law enforcement court on any of the subjects. Concerning the role 9. Compilation of summaries of all Washington at 35-36. agencies in the county. Further, prosecutors also notify police of the prosecutor as legal advisor, the statute sec­ law relating to juveniles; ..' 32 Institute Study, at 223-224. 3 ere a~encies of the reasons police reports are rejected and also cases filed, 43 W dlCect add' . I . .. tion cited, RCW 36.27.020, gives no indication 10. Reviewing all proposed admmIStra:lv~memo- 33 Id., at 291. Further, of the 1,215 mona investIgations when they are needed. 30 Ibid. ial orders prior to pubhcatlon and subsequently dismissed. . brnit the that the prosecutor should act as legal advisor to rand a and spec . h SU 37 Ibid, 34 Id at 224. The rule did authorize probation to d 'sion of providing the department with legal counsel WIt ., 'f' d' d with th,. eer the Juvenile Department or any other Department matter to a judge, however, I It IS agree - 3S Id., at 227. Defender Services have seven . respect thereto; .. 30 Id' l at 228. of the Superior Court. Only the board of county 11. Performing, in appropriate cases, lLalson for the prosecutor. 72 73

~ ... ------~.'------' -

"'..;...... -~. --~.. -.""-~-..--.-~ ..~,~-+--.,.,...... - --~::.---~-----.... -----.-~---- -~-- ,, I tional base has provided the court with experience "round table" hearings which were utilized prior

'cts for the court as well. On the one' '1\ create co nflt . 1 in handling a caseload which emam.\tes not only to 1961, the court has taken on an air of proce­ d precinct officers, and legal adViCe from oe prose- .r commissioners, county an. . ded reci- hand the court see ks . \ from densely populated urban areas but from non­ dural formality not unlike that which characterizes , . f law' on the other, the court IS ' i school directors are mentloned as 1Ote~ cutor on questions 0 , £ I urban areas as well and with an opportunity to the criminal courts. Judicial robes are worn by the . f legal advice from the Prosecutmg Attor- : dge impartially the performance 0 \ plents 0 suppose d to)U h' \ gain a broad perspective of the problems of juvenile judges and hearings are conducted in a .traditional . fact-finding and other earmgs. l ney's office. . h the prosecutor 10 . h court prosecution as they may he affected by vary- courtroom setting. Although for many years, the Des ite this apparent lack of authon~, t e An issue of separation of powers may artSe w en , ing local conditions. Second, the overall juvenile public defender's office has represented juveniles in f the Superior Court asks for and prosec!tor's office regularly give~ lega~ a~~~:f :~ a Department 0 caseload of the Rhode Island Family Court is sub­ the court when !assigned, in the years following the . 1 1 advice from the prosecutor on ques- the court on a wide range of tOptes. T e receIves ega . f stantially larger than· that of the Boston Juvenile Gcwit decision there has been a marked increase . f I t'ncludin rr interpretations 0 statutes the Domestic and Juvenile Division of the P.r~se- tIons 0 aw, I::> Court: In terms of organizational, administrative, in the legal representation of juveniles and in the '. f legal opmlOn d case law outside the context of any court pro- cutor ,so. ffice recelVes requests or .h and personnel needs, the problems presented by number of contested cases before the court. This an d' nd' 'Justiciable controversies. The problem from dle Administrator of Court SerViCes, w~Jo cee lUgS a . . heavy caseload pressures are comparable to those trend was sharply accelerated when the state's . d d hen the Juvellli e Department serves under the Juvenile Judge in t~e Juvem.e IS compoun e w . f i which exist in the largest big-city juvenile courts. a.E.O.-sponsored legal services agency began ' nistrative Memoranda on d1e baSIS 0 Department. Topics include such s~b)ects ~s th~ creat es Admt 'f 1 . I . Third; the Rhode Island Family Court differs Hom representing juveniles late in 1969. Their aggres­ . h' 1 operate to modi y egis atlve use of detoxification centers by pollce for mtOxI­ such adVIce w IC 1 may the Boston Juvenile Courr "in its regular use of sive assertion of technical defenses, extensive use cated juvenile without prior court approval, ~~d provisions. th attorney-prosecutors. However, in spire of this, the of not guilty pleas, and readiness to go to trial in the advisibility of the court giving the POllC~ A'd from the problems raised above, . e problems of developing adequate prosecutorial a high percentage of their cases raised new fears SI e . h' h ears to eXist blanket permission to fingerprin~ and ph~to.gra~ll imbalance of functIOn w 1C app . . services are not regarded as being resolved. In fact" that the court was becoming a forum for adversary . '1 When such a request IS receIve ,It WI )Uvem es. 1 . between the prosecutor's office and the pub~~c some of the problems which have been noted in the strife to the detriment of the court's ability to ful­ be assigned to a deputy prosecutor or lega tnter~ defender'S office indicates that half of the Juvem e Boston Juvenile Court and associated with the fil irs child welfare responsibilities in an atmos­ as a research project. Memoranda based on thIS Court bar which would be properly cons~l~ed by absence of professional prosecutors also seem prev­ phere marked by cooperation rather than hostility. '11 be returned to the court after some the legislature in considering statutory or alent in the Rhode Island Family Court. A grow­ These concerns reached crisis proportions when, researc h w 1 ,. . of the ~evlslO~'. .. as a prosecutor s opmlOn. Most erhaps by the Juvenile Department .m dra ttog ing concern among the court's judges regarding in late 1969, the s0licitor of the state's largest city reVISIon ffi of the requests appear to come from 0 ce . p les is not being consulted. Publtc defenders the court's prosecutorial needs resulted in the devel­ announced that his office could no longer continue th~ court ru , rosecutors Court Administrator, but it is posstble that I~for- have at least as much to say as deputy p b opment of a proposal designed to establish a wholly to provide prosecutorial services in the court. With mation is also given to other court person~e . about court practice and procedures; they are ~r~' new system for the prosecution of juvenile cases­ the imminent withdrawal of the city'S prosecutor, h 't s pportmg the ably better advocates for juveniles whose rig IS one which has not yet been successful in gaining the court was faced with the prospect of having I n the absence of any aut on y u e impaired by procedural changes. legislative approval. the state go without professional representation role of the prosecutor as legal counse~ to the Ju::~ cOU ld b d . s that nile Department, some questions arISe as to, In view of what has been state , It appea~ Rhode Island is a small State located in the in a very large percentage of its juvenile caseload. wisdom of this practice. It is clear that the melIlb.ers the prosecutor's office may not have authority for Northeastern portion of the country. Ir has a popu­ This, coupled with the dramatic increase in con­ g of the Juvenile Division of the .Prosecut1O its role as legal advisor to the court, and thadt even lation of under one million people and its largest tested cases, resulted in the appointment of a com­ b' g fille , may ' office 'lre as experienced wIth the body 'f 't does this role as present lY em .\ city has a population of less than 200,000 people. mittee of judges to study rhe problems of juvenile A ttorney s <. 1 1,' f h . eO! e · venile law in Washington as any other lawyers be harmful to the overall balance 0 t e JUV ... The court has state-wide jurisdiction over all court prosecution and to recommend solutions. In o f )U d' . the court and the competency of the a VIce gIven justice system in King County. , offenses committed by persons under the age of April 1970, the committee issued its report to the . . d l1ere The issue is whether the IS not questlOne. . f : eighteen. In 1971, the court received over 5,000 Governor. advice should be given at all. potential conflIcts 0 D. THE RHODE ISLAND FAMILY juvenile referrals involving waywardness or delin­ It is important to note that in attempting to function seem apparent when th~ rol~ of the prose­ COURT, PROVIDENCE quency. In addition, the court recorded well over formulate its proposals, the committee's primary cutor as advisor to the court is placed m the cont~xt minent in our 2,000 referrals involving motor vehicle infractions. concern was to create an adversary climate which Three considerations were pro 'J ce of his role as administrator over case prep~r~tlon . • f making a brief on-site visit of Provi en I Since 1961, the· court has also had jurisdiction over provides for the juvenile the full range of legal h and presentation, and his role as adversary ~l:lgant c OICe a . f roseCU' domestic relations, child marriages and adoptions. rights which arl;! now available to him while pre­ Rhode Island for further exploration 0 P the before the court. The prosecutor is in a p.Os.ltion. to F· like Boston, Changes in the court's practices during the last serving the court's child welfare orientation and . 1 1 d' to the court on admlmsttatlVe tion in juvenile cases. Irst, un .d juris. gIve ega a vICe Family Court of Rhode Island has state-WI e the fifteen years have reflected the growing formality capabilities. The committee, in rejecting any solu­ . 'f d t d may operilte to memoranda, whICh, 1 a op e , -'1 d referrals to diction over )uvent e matters, an, located and adversary nature of juvenile courts through­ tion which would dilute the full application of increase his power and function. Such hai: already . t' and tOwns court are made f rom CI Ies d . risdk· Out the United States. From the very informal juvenile'S legal rights in the court or which would been the case in court rules, discussed abov':. throughout the state. The court's broa JU The multifaceted role of the prosecutor may 75 74 ~ I I : rosec, ution have npt been ,; of juvenile court P ( which do not require court action (the Chief Judge at the intake stage is l>..:~\n as essential to the enforce­ fetter defense counsel in his responsibility to estimates that 50 % of the court's caseload could ment of uniform standards for court referrals and ~ro~ resolved. . vide vigorous advocacy, concluded that . d olicitors appear in court m cases eventually be handled in this manner), at the pre­ for the evenhanded treatment of juveniles through­ ~he,~urv~v~d Clty an town s ' . -t. of the juvenile courts' "special qua LYf ': ~l . . t of action taken by theIr local po Ice " sent time, such adjustments are very much the out the state. ansmg au l' • j depenc 1n large measure on the creation 0 sutta . e . In cases involving the state po ICe, a reple- i( exception. In most non-motor vehicle cases, in the' Although prosecutors play a very limited role . . I this regard, the commlt- agenCIes. ffi d ., h ttorney general's a ce con ucts ~ absence of special circumstances, the petitions are in the early stages of juvenile proceedings, their prosecutClual serVICes. n ." sentatve atef a h!q . ed the I'SSUe of )' uvenile prosecutIOn as a . However referrals to t e court i granted by, the intake unit. availability prior to adjudication does offer several tee view . f the prosecutlOn. , .'h I 1 basic question that was ripe for evaluatlOn . or by the various police agenCIeS wIt out " The intake unit plays no part in reviewing peti­ distinct advantages. In contrast to the Boston Juve­ tru y II th proposed wlth- are ma dell'" All reasons entirely extraneous to e ., tion by the loca SO leltor. tion r~q\lests for legal sufficiency nor in drafting nile Court which lacks lawyer-prosecutors,' the benefit 0 f partlClpa . drawal of the state's largest city prosecutor. . .' k the designation of WItnesses mvestlgatlve wor , ..' petitions. Accordingly, since 1971, there is no initiative in Rhode Island to request \transfers of Briefly summarized, the com~ittee recom­ and charges, and pre-trial preparatIOn m ~~.neral IS legal screening of any court petitions prior to the serious cases for trial in the criminal cburts rest nded that an independent juvemle court prose­ ' 1 1 b the police. The solICItors do dnle they are filed. When, in 1970, the committee with the or town solicitor. Where such action handle,d so e Y y city office be established which would · '1 appear at arraignments and, as a of judges proposed that petitions should be drafted is deemed warranted by the solicitor, he will pro­ :~or's cond~lCt not or dman y . 1 . . the court that it would receive . latter do not enter a case untIl a p ea by a prosecutor, they urged that this be done "to ceed by a motion to transfer the proceeding for rr11 prosecutlOnS m, . T practICa m , . d ' I .' d by the chJld an a tria all court referrals and have primary respon~lb~;t~ of not gUIlty IS entere ensure that proceedings are not invalidated or trial in the criminal courts. These motions are plea of guilty or for determining whether a petition should e ~ date IS. set. WIlere a , nolo comel/,, . needless delays caused because this legal document usually made at the arraignment and result in a and for drafting petitions which are ~led; that m dere is entered at the arraignment, the soltcltor is drafted by lay persons." Now, because of the lack hearing on the waiver issue. In Boston, with no · a thl'S decision it should take mto account of any review of the petition filing process, the prosecutor to raise the issue early in the proceed­ reac hmb ' . d 1 would play no role at all. . both the legal sufficiency of the eVIdence an a ter~ The absence of any significant prosecutonat role Chief Judge expressed great concern that far too ing, it does not arise until the disposition stage native opportunities for discipline and tr~atmen~, throuah arraignment has been particularly tr~uble. many legally deficient petitions are being filed. and only upon the motion of the court. The lack that the office should utilize all avai.lab~e dlagnostl.c , b ith regard to the screening of pet1tJOn~, Although the solicitor may subsequently move for of early notice that a transfer may be sought is uide it in its determmatJons; that It some w . . re dl' dismissal of inadequate petitions, there is a clear regarded by some as a procedural flaw in the Bos­ resourc es to g . '1 d Prior to 1971, all requests for petItIOnS we onld seek early meetings with the )Uvem e an need for prosecutorial revie~ before the petition ton Juvenile Court and is, in part, related to the sh . menda- rected to the judges who would make the deter· his counsel to encour~ge cooperatIve recom h mination as to whether a petition should. be fil::~ is filed. The lack of a prosecutor to draft and ap­ fact that no attorney-prosecutor is present to raise dons for the disposition of the case; that, w er~ Not only did this create an enormous dram ~nd es prove petitions is regarded by the Chief Judge as' this issue earlier in the' proceedings. it would represent the state and seek necessary, . . d 1 t judges' time but was widely regarded by the JU ted a serious weakness in the court. Second, whereas it is estimated that thirty to to prove the allegations of the petltlOn; a? t 1a as a~ unnecessary practice which would be reme I This view is shared by the Chief Intake Super­ forty percent of juveniles in the Family Court enter at the disposition stage, it would consult wIth p~o~ by the appointment of a juvenile court prosec~tor visor who also complained of the lack of uniform pleas of not guilty at the arrignment, only'a small · d defense and would make recommen a batlon an '1" d . h thority to review all court referrals an to criteria among the various police departments for fraction of those cases go on to a full hearing on tions which are based upon the rehab! Itatlve nee s WIt au . . Follow' determine whether or not to file petltlon~ 'twas making court referrals. While some police depart­ the facts. In most of the cases, pre-trial negotiations of the child. ing a ruling by a State Appellate Co~rt t at 1 hear ments successfully screen most trivial or frivolous between defense counsel and the solicitor, con­ The committee's proposal for an independent constitutionally impermissible for a Judge to. sic complaints, others appear to exercise little discre­ ducted under the supervision of the court, conclude IOU . . h' h he had prev I j~venilc court prosecutor has not been implement~ a case on a petltlon w le . , 'as tion and refer large numbers of insignificant cases with a slispositional proposal which is agreeable and an alternative recommendation for the esta - roved all responsibility for filing peutlonds "'th to the cOurt. Also, there is a tendency among some to all the parties. If such an agreement is reached, app , . 971 d lace WI iishment of these functions withi? the attorney removed from the judges 1ll 1 an ~ all reo police departments to use a shotgun approach in the not guilty plea is withdrawn and the recom­ . k . This unit receIves general's office has also failed to gam th~ appr~val the court's mta e UnIt. h court bringing charges against juveniles in the apparent mended disposition is imposed. Not only does this . . h' h made to t e of the legislature. Observations and lllterviews quests for petitIOns w IC are hurt belief that excess.ive charging will strengthen the process of negotiation substantially reduce the which were recently conducted in the court confi~m nd may under guidelines established by t e ~h ; possibility of a delinquent or wayward finding. number of trials which must be held but it encour­ d oe of prosecutIOn a, . f cases wJt OU that the current manner an sc P . informally dispose of certam types a ,hicb Because the intake unit has no authority to inter­ ages an early consideration of the rehabilitative in the court has been a major impedIment to the bulk of cases \\ t~e filing petitions. At present, , ' n are vene in most such circumstances, many of these needs of ;he juvenile in an atmosphere less likely achievement of the goals set forth by the co~mlt­ .' . 1 ithout petltJO are handled ad mJlllstratlve Y w being petitions are filed as a matter of course. Informal to be marked by conflict than a formal adversary tee in its report. Notwithstanding that professIOn.at Al h gh efforts are efforts to encourage an increase in stationhouse hearing. Although most such negotiations are inti­ motor vehicle offenses. t au ' l't in prosecutors are involved in the court (t~e oty 1 £ the intake un adjustments have been made by the Court with made to expand the ro eo. 'infractions ated by defense counsel, the availability of a prose­ r solicitor of the State's largest city did not w1th.draw screening out other kinds of mlllo only sporadic success. The presence of a prosecutor. cuting official, if only to provide his consent, is an from ,the court), it is clear that the broad Issues 77 76 -,-

. " - " !-~

\I.'. essential ingredient in reaching negotiated disposi- or contesting too many cases. In other words, given I tional proposals. It is doubtful whether this desired the limited capability of prosecution, the court has procedure would be possible in the absence of an put some restraints on defense counsel to avoid attorney-prosecutor to represent the interests of the upsetting the adversary balance of the court. community. Merely increasing the number of solicitors, In addition to asserting the specific need for alone, will not provide the best long range solu- greater prosecutorial participation in screening and tion to the Court's prosecutorial needs, however. drafting petitions, the Chief Judge expressed gen- At the foundation of the concerns expressed by J eral criticism concerning both the quality and quan- court personnel is the recognition that prosecution i_ q I dty of prosecutorial services currently being pro- in juvenile courts is best performed by a specialist ~,' ti vided by the town and city solicitors. In essence, -one who has an active commitment to the court's r c', I 0; his remarks were not so much an indictment of chUd welfare goals and who gi.ves high priority .;.l.•..• the ability of the yarious solicitors who appear in to juvenile court prosecution as an agent for the . lli the court but rather of an outdated system which protection of juveniles' legal rights and the expan- ta is no longer in tune with the evolving needs of sion of opportunities for individualized treatment. ~' the juvenile court. As a rule, town and city solici- This, in turn, would require the establishment of ~ J~ tors are said to possess neither the manpower nor an independent prosecutor's office which operates.~~_. seJ the will to provide more than the most minimal in concert with intake and probation staff and is ~ arJ services in the court. Juvenile prosecution is treated fully integrated into all important stages of the * an by most as a matter of low priority-one which juvenile court process. There is little optimism R an! diverts the solicitors limited manpower from other, that this goal can be achiever! so long as prosecu- . n Uli more serious cases. As a consequence, solicitors don continues to be conducted by the various town ~ th~ are often poorly prepared at adjudication hearings and city solicitors. F -in some cases appearing to read the petition for Although the problems observed in the Rhode f the first time just moments before the trial. Trials Island Family Court are compounded by the broad ~ are often delayed by continuances which are decentralization of prosecution services which i" granted at the request of the prosecution and in . f h ' ·d· d·· h l' arIses rom. t e court s.. st.ate.wI. e Juris lct1On, t. ey '.t.: ; many instances, cases are dismissed after three con- I are not unIque to that JUrISdIctIon. They are typlca ;: tinuances when prosecution is still not prepared to of the growing pains which have been experienced r; present the state's case. Over twenty such dismis- ,\ i by juvenile courts throughout the country in the sals occurred in one year in cases from a single F ! small town. Although this problem varies in degree past decade. What is noteworthy is that the juvenile I among the State's towns and cities (it occurs less court judges in this State have long concluded that • frequently in the State's major city which has a a key to the preservation of the most cherished. _ Ii full-time solicitor assigned to juvenile cases and a traditional vaiues of the juvenile justice system lies, capable juvenile officer who acts as liaison to the in the creation of a new and extended role for r 1 court), there is little prospect of overcoming it prosecution. Expanded prosecution services, it is f In il without the creation of a central juvenile court believed, would not only provide better community I the l prosecutor's office. In part because of the case load representation in meeting the growing number of I ~ pressures which confront the solicitors and their adversary challenges, but would reduce the worst) by a ~ · '" tivene! general inability to provide effective community excesses of adversary conflict by emphasizing dIve~·;; had ~. representation at trials, the court has felt it neces- sion, negotiation and rehab. ilitation. In the exper~:,-. ;f I? sary 10. the past to use Its. auth' onty to restrain cer* ence 0 fl·t 11S .court, prov!·d·" 109 more 0 f t he same· : ontln41 tain defense counsel from filing too many motions 78 is not the answer. I "·1

,~~ l . ______--- ~. ~-...iW.... .,.,.... ="" .• =-==-""-~,"". _ '.... ',," .... ' ......

,~, - essential ingredient in reaching negotiated disposi­ or contesting too many cases. In other words, given E. METROPOLIS tional proposals. It is doubtful whether this desired the limited capability of prosecution, the court has the Office of City Attorne h procedure would be possible in the absence of an put some restraints on defense counsel to avoid As noted earlier, Metropolis is th fi " dally civil duties) d Y-kt e agency with ~ssen- . e CtlCIOUS un erta e the f II . attorney-prosecutor to represent the interests of the upsetting the adversary balance of the court. name 0f a large eastern city It . d h' tions pro '1 '. . 0 OWlllg func- . . IS name t IS way , Iman y 111 JU '1 d l' at the request of my officials 40 Ch h cases: 42 venl e eInquency-type community. Merely increasing the number of solicitors, . . anges ave also been made 111 the names of th' . In addition to asserting the specific need for alone, will not provide the best long range solu­ . e vanous agenCIes mvolved to prevent identification of th . 1. Post-Intake screening. gteater prosecutorial participation in screening and tion to the Court's prosecutorial needs, however. e cIty. The evaluation that follows . drafting petitions, the Chief Judge expressed gen­ At the foundation of the concerns expressed by . IS noteworthy not !h.~ juvenile prosecutor should develo 1 i' eral criticism concerning both the quality and quan­ court personnel is the recognition that prosecution on 1y because It reflects conditions and bl gUldtl111es for the use of intak ffi . P, ,ega pro ems , e 0 cers In conslder tity of prosecutorial services currently being pro­ in juvenile courts is best performed by a specialist th at are common to Bosto d h . . lllg recommendations to file ' , , - n an ot er JuvenIle . '1 petItIOns and the vided by the town and city solicitors. In essence, -one who has an active commitment to the court's co~rts~ but also because it illustrates that laudable Juvenl e prosecutor should b ' ' objectIves for new juvenile cases of aIle ' , e empowered to review his remarks were not so much an indictment of child welfare goals and who gives high priority . prosecutor programs ged JuvenIle delinquency wh' h are meanmgless unless a firm co· . referred t b' IC are the ability of the yarious solicitors who appear in to juvenile court prosecution as an agent for the . 1 mmltment IS made , 0 COurt y the Intake officer If the 'u the court but rather of an outdated system which protection of juveniles' legal rights and the expan­ to Imp ement them. nIle prosecutor determines that there' . J vffie­ cient f were 111SU - is no longer in tune with the evolving needs of sion of opportunities for individualized treatment. Un~il recently, prosecution in the Metropolis th acts tbo suppOrt a petition, he should order the juvenile court., As a rule, town and city solici­ This, in turn, would require the establishment of JuvenIle Court had been p 'd db' e case to e dropped. rOVl e y polICe pro- tors are said to possess neither the manpower nor an independent prosecutor's office which operates secutors. After determining that the effect of G I and def (/It t 2. Preparation of the petition. the will to, provide more than the most minimal in concert with intake and probation staff and is . ense counsel had been to create an imbal- services in the court. Juvenile prosecution is treated fully integrated into all important stages of the ance In the COurt . I . ' a speCIa committee urged th If the juve~ile prosecutor determines that th by most as a matter of low priority-one which juvenile court process. There is little optimism an expenment I at f acts are suffiCIent t . h e a prosecutor project be develo d should . 0 gIve t e court jurisdiction, he diverts the solicitors limited manpower from other, that .this goal can be achieved so long as prosecu­ Under the initial design the pr . pe . . '1 authOrIZe the preparation of a petition The more serious cases. As a consequence, solicitors tion continues to be conducted by the various town h' ,0Ject was to avoid t e creatIon of a "full-scale" , Juvenl e prosecutor should control the form' d T " " prosecutor s office. are often poorly prepared at adjudication hearings and city solicitors. COntent of the role of the petition , he JuvenJ!e delinquency proceeding is not ~he.petition; cl:: -in some cases appearing to re~ld the petition for Although the problems observed in the Rhode should be lImIted to typing the document itself. 1nthe~lde~ ~o .be entirely like a criminal proceeding the first time just moments before the trial. Trials Island Family Court are compounded by the broad W I e It IS In some d ' , respects a versarial it has as a . 3. Litigative fltnctions are often delayed by continuances which are decentralization of prosecution services which majOr goal to aSSure th granted at the request of the prosecution and in men e most constructive treat- a, Fact-finding hearings. arises from the court's statewide jurisdiction, they t ,program for children identified as needin many instances, cases are dismissed after three con­ attention, rather than bring about th ' h g are not unique to that jurisdiction. They are typical of tl '1 e punJS ment . The j.uvenile prosecutor would represent all peti- tinuances wh.~n prosecution is still not prepared to tIoners 111 fact-finding hearings where the .. of the growing pains which have been experienced in th; gUI t~, It is recognized by persons involved aIle . . petItIOn present the state's case. Over twenty such dismis­ JuvenIle COUrt that its processes do not in all ~~s JuvenIle delinquency and would erform by juvenile courts throughout the country in the cases reach this goal B " sals occurred in one year in cases from a single , ut It IS also believed that th' tradItIOnal activities - int " ~ past decade. What is noteworthy is that the juvenile . erVleWlllg WItnesses smsll t07vn. Although this problem varies in degree !~:I ::oul~ continue to be sought, and that ~hOI~~ marshallIng and presenting the direct case ' among the State's towns and cities (it occurs less court judges in this State have long concluded that , OptIon of the criminal process is not " . , ,cross- patlble with this effort This ' com­ eXamlll111g WItnesses and presenting briefs and oral frequently in the State's major city which has a a key to the preservation of the most cherished the ad . In turn requires that arguments on legal issues. He should 'd traditional values of the juvenile justice system lies offi . Ivocate f~r the petitioner, whether, , , a public h' h •. aVOl cases full-time solicitor assigned to juvenile cases and a W IC ong111ate as PINS or, as a rule, neglect cases cia or a pnvate citizen, have a different f ' capable juvenile officer who acts as liaison to the in the creation of a new and extended role for f rom that of the prosecutor.41 UnctIon to assure an experiment of manageable proportions. court), there is little prospect of overcoming it prosecution. Expanded prosecution services, it is In line with this' . without the creation of a central juvenile court believed, would not only provide better community the '. VIew, It was recommended that b. Hearings on remand. ~e prosecutor (who would operate with Advising the C . h prosecutor's office. In part because of the caseload representation in meeting the growing number of 40Th 'f h' ourt WIt respect to remand of b e In ormation for thi ' pressures which confront the solicitors and their adversary challenges, but would reduce the worst ya member of the C s sectIon was originally obtained t. e chIld .to a detention facility pending the dis os i- tiveness of the e ' enter Staff who was evaluating the effec- general inability to provide effective community excesses of adversary conflict by emphasizing dive~· had b xpenmental juvenil t~on of hIS case can best be performed b Pb een funded b LEA ' e prosecutor project which tlon officer. y a pro a- representation at trials, the court has felt it neces­ sion, negotiation and rehabilitation. In the expefl' ollP72, some alte:ation A, After It ~as completed in the fall ContInued A s were made In the pro)'ecr and 't s:lry in the past to use its authority to restrain cer­ ence of this court, providing "more of the same" ' new eval " f 1 was . c. Dispositional hearings. 41 Taken f uarlO~ 0 rhe project is now underway, tain defense counsel from filing too many motions is not the answer. Committee n rom MetropolIS Juvenile Prosecutor Pla ' ..l,-eporr. nntng Preceding paragraph applies here as well. 42 Ibid, 78 79

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1 It is not clear from the final report why the Juvenile Prosecutor Program and the traditional , se in all fact-finding 1 , h overnment s ca , Office of the City Attorney did not assume the prosecutor's office was the goal of having the resentlOg t e g h d the J' uvemle prose- , f probati011, and P he other an, responsibility in this area as it specified it would juvenile prosecutor participate in the Juvenile 1 earings 01'J, revocatton 0 hearings, O nt, f with probatio,n func- d. H t to mter ere , do in the proposal. The director of the project sug­ Court's objective of "assuring the most construc­ cutors were no d' sition, ConsideratlOn 1 pttrole, h ld screen alleg::t- , k and at ISpO gested two reasons: 1) the responsibility for tive trearment program for children identified as '1 rosecutor s ou - tions at Inta e , h prol'ect's response to The juvenl e p 'fficers to determlUe b gIVen to t e , ' drafting petitions is currently built into the union needing attention, rather th,tn bringing about the 1 " probatiOn 0 - , will now e" din and scope durlOg Its dons of supervISIng, stitute a violanon the stated ob)ecnves, es g contracts of petition clerks and it will be difficult punishment of the guilty," Based upon the project ffiClent to con 1 hether facts are su 1 If the facts are to take the job away from them; and 2) the staff proposal, juvenile prosecutors could assist the court W h hild's re ease, first year, d d f of the terms of t e c, h' 'Juvenile prosecutor or Ie at mfficiency an ra t- does not have enough time available to screen all in achieving this goal in several ways, the most 1 b suffiCIent, t e he 1. Scree1~i1tg cases f g mencement of the deemed to e '1 1 for presenting case at t , , p 'or to t h e com cases for legal sufficiency and to draft petitions, important of which include: 1) developing guide­ 1 ing pettttons. r1 'ke officer sent all 1 should be respons ;) e ' ect the Inta The project director did say, however, that he was lines for the use of intake officers ,in considering experimenta1 pro) , , k to a petition clerk . revocation hearing, , ' d of at mta e in the process of attempting to adapt district attor­ recommendations to file petitions; 2) encourag­ 1 t'on of Issues. cases not dISpose , , 'f'he danger of this sys- l 11 ney complaint forms into juvenile delinquency ing pretrial resolution of cases; and specifically, o t-of-cottrt reso t d d the petmOn, .L , e. 1t h ld be empowere '1 osecutor s au h who prepare he Metropolis planmng Com- petition forms as a guide for police officers and 3) stimulating settlement of cases through liberal 1 'the juvenI e pr l' of cases prior to t e tern waS noted by t ' the reso utl0n f h court personnel. use of pretrial discovery procedures, Although to playa ro 1e In , h civil nature 0 t e 'ttee in 1969: " . 1 rol , of the pet1tlon IS juvenile proseclltorS potentially ~(luki have played h . g G1ven t e , h h preparanon Interestingly, the City Attorney in his final actual court earm ' 'bl to experiment W1t [A1 t present t e " 1 k Like the intake , hould be pOSSI e h' h b pentlon c er ' report, although he does not explain his failure an even broader role in achieving this goal through 1 hearing, it s 'al discovery procedures, w IC left entirely elk is not an attorney, and yet t~ ~ to assume responsibility in this area during the direct participation with intake and probation per­ officer, the pentlon c er be is given the complex 1 the use of pretrl '1 by both partles. sonnel, lack of expertise by law officers \v1th treat­ would point toward dlsc osure under the present system 1 r The result is that first year, gives high priority to pre-petition screen­ 1 ' g fact to av., , ing of cases for legal sufficiency and to assumption ment alternatives, and limitations of resources 1 f Calelldar rnanagerne,nt. 'ble legal task of re attn d f rive and muSt either many petitions are legally e ec , of petition drafting responsibilities during the within the project resulted in restricting the juve­ , '1 secutor should be responsl 11 . ' se d by the court, 1 The juvem e pro. d records as we be redone or dlsm1s , second year, Although without question there is a nile prosecutors' role in diversion of cases and , of WitneSses an ere£ore stated that under thiS for the production, h'ld's lawyer neces- need for screening and for juvenile prosecutors to treatment concerns to the three objectives described 1 ' out WIth the c 1 'the City Attorney, th , ould assume re- as for wor k109 dministrative matters, , '1 prosecutor w assume responsibility for pre-petition screening and above, project, the )uvenl e , J' uvenile delinquency 1 sary adjournments or other a 'b'l' for screenlOg for petition drafting, it must be assumed with some As far as can be seen from interviews and sponsl 1 Ity , d drafting necessary legal suffiClency an seriousness of purpose, During our observations in observations, no real effort has been made in 1 4, Advisory f1t1~ctions, ailable to cases for , tor should be aV , the juvenile court, we had occasion to review Metropolis to achieve any of these objectives. In ecu a 1 The juvenile pro: conduct investlg - petitions, , ' h t to be achieved numerQus petitions that had been subjected to fact, in some instances, concerted efforts have . enlle court to . , ' n t objective as ye , j judges of th e JUv. ld assist the court m ThiS Importa 1 d As p01nteu 14 months have e apse, , post-petition screening by juvenile prosecutors. been made to prevent these ob jective& from being 1 nons..- "nd studies whiCh, wou even a f ter fi 1 report except In , 's own na ' Many of these petitions were defective and steps achieved, For example, there is currently a rather erforming its funCtions. , s followed closely out by the project, 43 pro'Ject attorneys firm office policy within the project against pre­ 1 P of functlOns wa d cnme cases, were not taken to correct the defects unless objec­ This statement . 1f ept that the case child abuse an sex, f he petition is drawn, tions were raised by the public defender, Further­ trial discovery in juvenile cases.44 We were in­ , roposal ltse exC , , 1 d until a ter t 1 in the project p "1 prosecutor s was are not mvo ve 11 do not become more, several juvenile court judges specifically formed that although juvenile cases have the 'b'l't of the JuvenI e h efore norma y , respons1 1 1 Y City Attorn~ys, t er " he receive an onIOn- commented that the overall quality of petitions characteristics both of civil and criminal cases, in 1 expanded, h osal the office of , 1 d l'n a case until after t Y nder t e prop , lnvO ve , ' was horrendous, In other words, if the City Attor­ the area of pretrial discovery it is "our position 1 In summary, u 11 te its resources to was to a oca skin copy of the pennon, h y with this neyassumes this new responsibility, it will be neces­ that rules of criminal procedure [which are far the City A ttorney d f mily offenses, sup- 'A is not app , 1 , (oppose to a The Ctty ttOrney 'fi.l port. 'juventle sary to direct more staff and attention to this effort stricter in the area of pretrial discovery] should juvenIle cases as d the treatment r d' to hiS na re . than is evident in the post-petition screening of , tc) was to a opt arrangement, Acco mg _ d d'smiss amend, apply," 45 The project director acknowledged that 1 port, paternity, e ., '1 Court rather than a f equlre to 1 , , petitions for legal sufficiency, , f the JuvenI e , 1 prosecutors are 0 ten r , 0-30% of the petl' there has been disagreement over this issue within orientatlon a 'd to playa Vita 1 '1" ' tation an was o! withdraw petitions smce 12 k who lack legal 2, Participation- il~ efforts to resolve appropriate the Office of the City Attorney, but that the incon­ "prosecutona onen '1) eening cases for b the court c er s, f 11 ' areas' scr tions drawn Y withdrawal. ClIses prior to hearing (and experime1tting 'with venience of responding to requests for discovery, 1 role in the 0 OWIng " , " '2) partici- , mendment or - d draftmg pennons, training, reqUlre a liberal pretrial discovery to encourage pretrial legal suffiCiency an iate cases prior , ttorneys are H Interview with project director of the juvenile prosecutOrs 1 . 'ff resolve appropr , , tated that project a resollltion of cases), As noted earlier, one of the project in one juvenile COUfr. patl11g In e orts to, ' 'th liberal pretrial -43 The project director s . 'des lind. other ' in homlc1 , ( and expenmentlOg \VI ) • . 1 d in petition dra ftlng major differences that was to exist between the 45 Ibid. 1 to heanng , 1 esolution of cases , Invo ve ncourage pretrla r d crimes, discovery to e 'nd preparing an 81 1 and, 3) responding to motions a 80 1 different orientation by the juvenile prosecutor~ abuse and sexual abuse cases. Furthermore, an also stated that the juvenile prosecutor's presenta­ among other things, has turned the tide against (and probably different personnel and training as agreement must be reached with the police depart­ tion (odack of it) was painfully typical. pretrial discovery. The project director also noted well) and a change of attitude by the public ment to allow detectives to continue their investi­ In the other courtroom which was observed, the that the judges are aware of the fact that juvenile defenders. This change of attitude would undoubt­ gations in certain cases. judge became angry on several occasions because prosecutors have virtually no ~lerical he~p, a~d edly come, however, if it were demonstrated that After receiving this overview of the project, two juvenile prosecutors (and public defenders as well) therefore, are generally supportlve of thelr reS1S­ I a substantial effort was being made prior to hear­ and one-half days were spent in two different court­ were late or were totally unprepared to present tance to pretrial discovery. ings to resolve those cases which do not bel?ng rooms. During this period, we observed a range of their cases. The judge was particularly angry about Of possibly even greater significance is the. fact in court or those cases in which the facts or poss1ble cases, at least four juvenile prosecutors, and had one case in which the juvenile prosecutor was that the juvenile prosecutors, with few exceptIOns, dispositions are not really in dispute. discussions with several of the judges. unprepared to deal with a neglect case which was do not attempt to resolve cases prior to hearing. If priority were given to this area, the Juvenile In virtually all cases that were observed, the 1 Yz years old (he did not even know how it had The project director states that "plea bargainin~" ju.venile prosecutors were poorly prepared and pre­ gotten on the calendar) . Court judges could devote their attention to cases type negotiations make no sense in the Juvemle sented cases in a sloppy fashion. In many cases, The judges, in general, are highly critical of· . ff" 46 H d'd in which hearings are really essential. Since juve­ Court as "we have nothmg to 0 er. e 1 nile prosecutors have taken no real to get the juvenile prosecutor restricted his role to asking juvenile prosecutors. One judge said that it was modify this later to say that some drug-related cases ste~s involved in case resolution at a prehearmg stage the police witness for his name and shield number ridiculous to have the City Attorney's Office pre­ are resolved prior to hearing. Several reasons w~re and they have systematically resisted pretrial d!s­ and then a.sking him what happened. If points were sent serious cases such as homicides since they are given for the project's resistance to prehear10g covery to date, it is doubtful that the Office of City not clear, or if objections were made, it was nor­ not equipped to handle them. He said that assistant resolution of cases, prehearing stipulation of facts, Attorney would voluntarily change its current mally the judge and not the juvenile prosecutor district attorneys should be brought in to try serious or prehearing diversion of cases. These reasons who intervened. cases. He then asked, "Would a district attorney method of using juvenile prosecutors. appeared to be as follows: 1). staff. does n.ot have One particular case dramatically illustrates this assign a new la\\'yer or an older reject to try a the time to deal \vith cases 10 th1s fashlOn; 2) 3. Preparing and pl'esenti1~g the gO'tletmne'llt's point. A juvenile was charged with possession of complicated case?" He finally commented that the juvenile prosecutors are not equipped to divert case in tact-fi'nding hearings. According to the stolen property and loitering. (This, incidentally, Juvenile Court is a garbage bin of the system and cases intelligently; and 3) public defenders are project director, the basic objective of the Juvenile was one of many cases where the petition was im­ all agencies seem to assign their worst personnel. unwilling to settle cases in advance and will put Prosecutor Project is to prepare and present cases properly drafted.) A police officer testified that he Other judges suggested that the City Attorney did the government to its proof. Regardless what the in a professional manner. The project director observed, from a distance of 5 feet, one youth show not have any idea what the Juvenile Court is all reasons may be, it is generally acknowledged by pointed out that given resource limit.ation~ ~t the a glassine envelope to another youth and then about and this was reflected by the performance judges and others that the lack of. preh~aring con­ present time, this is Vi~1at his office 1~ str~v1ng .to return it to his pocket. When the officer approached of the juvenile prosecutors. Sti1l other judges com­ tact between public defenders and JuveDlle prosecu­ achieve. Although he feels that the project lS begm­ the two youths, one fled. The officer then testified mented that since most juvenile prosecutors were tors has had several harmful effects. The most ning to achieve this objective, the project director that he reached into the pocket of the youth who disorganized and generally unprepared, they simply significant of these is that full hearings are required is concerned about several problems he constantly had the envelope and removed it. The juvenile ignored them most of the time. in far too many cases. Many of these cases should faces. pros~cutor then attempted to introduce a laboratory Surprisingly, even with all this being said, the be resolved and diverted without an adjudicative First of all, the project has virtually no clerical report establishing that the envelope contained a judges all wanted to retain the program. Most of hearing; others should be resolved through pre­ staff and this has been a constant annoyance. small quantity of heroin. The public defender the judges said that they had expressed support for hearing stipulation of facts and the possible ~se Secondly, no funds are available to hire an in-house objected to the introduction of the report since the program in a recent survey that had been con­ of suggested consent decrees. The lack of pretnal investigative staff. The project director noted th~t the heroin had not been brought into court. He ducted because the juvenile prosecutors, for all of contact also has meant that opposing counsel are once the police department makes an arre.st,. 1t also strongly suggested that he would oppose the their faults, are a substantial improvement over too often not familiar with the facts of a case or considers the case closed and is typically unwlllmg introduction of the heroin on the basis of an unlaw­ what existed before. They also indicated that a with the child involved. to allow its detectives to continue an investigation. ful search and seizure. At this point, the juvenile small number of the juvenile prosecutors were Juvenile Court judges are now in session an Only when pressure is applied are detectives made prosecutor essentially withdrew from the proceed­ quite good. inordinate length of time every day, wrapped up available. What this means is that juvenile prosecu­ ings. He remained seated quietly while the judge, In summary, our own observations and inter­ with hearings, many of which would not be neces­ tors either are forced to undertake their own in effect, had to play the government's role to views give a bleak picture of the area now being sary if priority were given to attempting to ~esolve inquiry or to forego necessary investigation~. The resolve the objection. The judge finally decided to given priority by the project-the preparation and cases or at lease to determine what fnctual d1sputes latter course is often selected. The project director continue the case and order the witness to bring presentation of cases. Cases, in general, are poorly or dispositional alternatives really exist prior to said that like district attorneys' offices, his office the evidence into court on the next hearing date. prepared and little skill in advocacy is shown. Per­ hearing. It is recognized that this would require a must ha~e its own inves\~gative staff, particula~ly After the case was continued, the judge turned sonnel seem, for the most part, to be of question­ to investigate serious juvenile crimes and child to the observers and said, "Isn't this awful." He able quality. When this is combined with the facts ~o Ibid. 82 83 that the City Attorney has provided no investiga­ sentation in a narrow legal sense since procedural tive and virtually no clerical staff, that staff have safeguards for juveniles are expanding substan­ are resolved in the best'10terests of th the child consistent ' I e treatment of intake scre~ning , not yet even begun to become involved in other tially: there must now be a valid basis for taking WIt 1 approp , 10 uncOntested public safety, These b" flate concerns for basis; judges set cert ' cases on an ad hoc critical areas such as petition drafting, that staff a juvenile into custody; petitions must meet the o Jectives can b am prosecut' I' , long as juvenile prosecutors fail to: not e met as sometimes make s' Ion po 1CIes, and time is being increasingly committed to nonjuve­ requirements of criminal informations; illegally­ creenmg decisi ' , cases, The scope of tl ' ons 10 partIcular nile cases, and that the planned training program obtained evidence cannot be used in a delinquency • Provide direct guidance to 01' le role of 1 1 mem pol' ,P Ice on law enforce- under the Hartfo I a\\ yer-prosecutors for the project has not yet even begun, the picture hearing; juveniles cannot be detained prior to ICy toward Juveniles, on Ie ' rc system can g 11 acterized as narco Th en,era y be char- becomes even more dismal. hearing without cause for such detention being ments, and on stati h ' gal reqUlre- ' w, ey are glV f ' on Ouse dIVersion of cases' w hIch require tecll ' lIen UnctIons We asked a lay official in the City Attorney's shown, etc, Therefore, government representation • P repare 'd l' , nica eaal ' gUl e mes for intakeo ffi cers' usually cut off fro d "b expertIse but ·are Office why the quality of personnel was so low in is needed to ensure that all legal and constitutional , m eClS(Ons req " h • Encourage preI,eanngL ' resoluti f ' ' Cise of policy lade " u1t1ng t e exer- the Juvenile Prosecutor Project, He first denied requirements are met in each case and also that all through diversion f on 0 cases eIther rofess' 1 - n prosecutorial discretion," Th P that this was true, He then acknowledged that cases are prepared and presented in a skillful, a cases or throu I Iona prosecutor is used ' e consent decrees thro h lOb g 1 proposed almost as a "h' d ' one mIght say lawyer-like fashion, This function will undoubtedly , ug 1 eral d' " Ire gun" 1 1 ' there was a personnel problem, but that this prob­ 1Oteraction with law ' ISCOvery and made by the ' d ,c Ose y :onfined by policies lem was widespread within the Office of City continue to expand as requirements may soon staff, guardmn and probation ' , . JU ges and prObatIOn staff , I nItml screening d " .. Attorney, "It is hard to find places for older lawyers emerge for preliminary hearings, for more liberal ' eCISIOns are m d b b pretrial discovery, and for mure disclosure at • Effectively investi ate d atlon casework s' a e y the pro- of marginal guality, and it is hard to find good fact-finding h ' g ~n present cases for all rals by mail He upervIso~, who receives all refer- young lawyers who are interested in the Juvenile dispositional hearings, Arguably, this function is eanngs (mc1udin k' , screens out ca ensure th g ta mg steps to of legal sufficienc ( .h l ,ses on the basis both Court. There is an inherent unattractiveness about no different than that played by a district attorney at statutory r ' detention etc are £ 11 P esUmptIOns against school, or other syo w et ler the referral, by police the Juvenile Court. Skilled advocates would want in criminal cases, , " 10 owed) d urce COnt'ams f ' agree with law 'g d' , an attempt to tion sufficient to establi~h the actual informa_ to become assistant district attorneys and not juve­ But there is a strong sense that the role of a uar mns 10 adva f what facts remai ' d' ' nce 0 hearing quency offense) 47 d elements of a delin­ nile prosecutors," government lawyer in the Juvenile Court must go n In ISpute' and , an on the b ' f for COurt handling If I as(S 0 suitability beyond this traditional legal role since the overall • Partici ' , , ' , , t le referral 1 He insisted, however, that the project had made pate 10 dIsposItional I ' made sufficient effo Source las not goal of the Juvenile Court is to assure the most underlying facts used t ' 'f le~rmgs when rts to resol I great strides in one year and that the Office of City , 0 JUSti y d s " repeated offers of ve t le problems (by constructive treatment program for children iden­ In dispute or d' , , 1 POSItIon are , non-court servi ) Attorney was committed to continuing the program ISPOs:tIOnal 1 ' mmor cases will b c ces, etc. then tified as needing attention, In order for government clearly defined, a ternatives are not e relerred ba k on an ongoing basis, Another official, however, Iegally sufficient Tl ' k ,c even thouah lawyers actually to participate in the achievement , le mta "e ph 1 h '-' suggested that the City Attorney will continue to Court is a "termI'n 1 1 osop y is that the of this goal, it may well be necessary for them to F, CONNECTICUT a agenc" f give the project low status, other resources are c1 1 Y Or use only when become knowledgeable in treatment alternatives COURT TH JUVENILE Thus, the current assessment of the Metropolis problem, ear y unable to cope with the and to work actively with police, with probation HAR TFORD IRD DISTRICT, Juvenile Prosecutor Project is that it is not meeting officers, and with public defenders to make all vital . Delinquency referrals which ' any of the objectives set out for it very well for a The Juvenile Court in C " the casework sup '. , are not rejected by information readily available to necessary parties pendent statewide onnectiCut 1S an inde- erVISor are aSSIgn d variety of reasons, some of which are clearly politi­ officer, who summon hOld e to a probation to facilitate resolving these cases in advance of '1 COurt system The H f d cal. It would also appear that there is little hope 01 e COUrt has J'ur' d" ' art Or Juve- " SCI and pare t ' , , hearings when it may be in the best interests of IS IctIOn ove~ th Th' InterVIew, At that int ' n to an mitial for improvement unless substantial changes are one of three districts int l' hL e Ird District, childre ervlew, where 95 % of "new" the child to do so, It may also mean opening up , 'd' 0 w w the J 'I n are not represented b made in personnel and program content and a jatls Iction is divided Ea h ~ ~ , uveni e Court are notified of th' "I Y counsel, the parties dispositional hearings to probe more deeply into eir ng ltS and h h' , stronger commitment to the juvenile prosecutor has two judges' one' f c b J u,venile Court District he is willing to ad '1 ' ' t e c lId IS asked if treatment alternatives when there may be valid D' ,0 t!e Judge ' h mIt t le offense If th h'l concept is made by the City Attorney, Istrict is also Chief' s In t e Third he signs a "stat ,e c 1 d admits objections to dispositional recommendations, In sYStem, Judge of the entire State ement of resp 'b T J ' 4, Needs for goz'emment representation tt'ithin bation officer then 1 h . onSI 1 lty, ' The pro- other words, government lawyers can best assist Under th las t e discret" I , e present sy.<;tem in th H case non-judiciallJ' (b d' , IOn to landle the the f({JJ7ily comt cmd possible short- and longer­ in achieving the Juvenile Court goal by developing rule COurt th . , e artford Juve- .. d' y Ismissal wl'th ' , e proseCltlOn f ' , a Justment" " " , warnm 0- range approaches for meeting 11eecls, It is extremely a concern for disposition, We are not suggesting among three d'a . unctIOn allocated , or non-JUdICIal b'" b, IS three month p 'd) ,pro at10n for a difficult to assign a role for government representa­ that juvenile prosecutors should become or replace . Illerent levels of eno . Certam f£ ~On officers perfor"h personnel: proba- have been deter ' d b 0 ense categories tion in the Metropolis Juvenile Court, since cases probation officers or social workers, We are hope­ l' m " e great bulk f UnctIOns; la \vyer f ,0 prosecution mme y the JU' d ges to require involving juveniles alone range from minor mis­ ful, however, that they will use their position and assigned to serve ".s rom p£1Vate practice are , ...<; prosecutors (" d 4j"D eI' Inquency" is chief to homicide, Without question, there is a influence to: 1) ensure that only legally-sufficient incJud' a very broad cate ' cectam stages of d. a vocates") at 109 a broad range of "gory 1n Connecticut subsrantial need emerging for government repre- cases are adjudicated; and 2) to ensure that cases spearnre "PINS" non-cnm1nal conduct Th ' ' which are contest~; ver~ small ?umber of cases , care gory The ' ere 1S no - ,an SOmetImes consult on whIch are prosecuted 'by ~h S procedure in neglect cases 84 was not investigated, e tate Anorney General's office: 85 ------judicial handling (i.e.) prosecution), whether ever, the judges have set the policy that no lawyer detention hearings unless tl h'ld ' denied or admitted, if there is a legally sufficient is eligible to be assigned as an advocate and as a n: " le c 1 denIes the olLense, lO whlCh case a prob bl. " an advocate. One of the 'ud case. These so-called "mandatory" offenses include defense counsel in the court; furthermore, a policy h ld a e cause hearlOg IS feel th ' } ges, however, did not e and the advocate participates Pretrl'al . crimes of violence, drug selling, motor vehicle exists to appoint as advocates only two or three 1 . mOtlOns . at screen 109 of uncontested prosecutions was lO the least, defective on the b ' fl'" a most never are made-in part th 1 f 0 offenses, shoplifting, and children referred to well-qualified practitioners. In fact, an estimated tI fil'" , e resu t 0 an , ,aSlS t lose COmlOg to tm1 before her,) Som f 1 ' , Court more than two or three times. Still, 75 % 85 % or more of the cases assigned to advocates open es dIScovery policy, (The defense has full . e 0 t le partICIpants ,sug- access to all material-pol' gested two SOlutlOns to the bl of all delinquent cases processed by intake are assigned to three Hartford practitioners. All Ice reports etc ' h d' 'pro em created by the petitioner's file,) Nor has an d ' ,-lO t e a vocate s late arrival on eh , a vocate any role at e scene under the are handled non-judicially. "Advocates" normally three are engaged in the general practice of law; present system' 'h 1 appeal, because appeals are not k ' '. ' elt er to lave an advocate involved have no contact with such cases. In some cases, only one of them does substantial (privately T nown ever to ear1 ler lO the pro ( b even if the child admits the offense, the probation retained) criminal and juvenile defense work. occur, he advocate's role therefore normall b the . cess e.g., efot(',cases are referred eludes with the adjudication Ho y con­ y , prObatlOn case supervisor to indi 'j 1 officer will decide that the case merits judicial When an advocate is assigned a case, he reviews will a " wever, an advocate batlOn offic) , VIC ua pro- ppear at prObatlOn revocation hear' 'f h in (h ers, or to gIVe, some formalle:gal train- handling and will draft a petition and return the it for legal sufficiency. Some advocates also screen o th d' , lOgs 1 t e y u enles hIS alleged violation of p b ' case to his casework supervisor for approval. Nor­ cases for "prosecutorial merit" beyond legal suffi­ ro atlOn oJ s ,ort ~f degree traming) to the probation Ad vocates have also appeared . mally, advocates have no contact with these ciency, and may advise against prosecuting trivial ' at rare collateral ter cers lOVO ved in intake. Most preH~rred the lat- attack h earlOgs. , however, on the ground th t 1 '" ( uncon tested) prosecutions; the probation officer offenses. If probation persists in wanting a petition, ro " , a a awyer s nar- who made the intake decision functions as pros­ they will refer the dispute to one of the judges for The, ,following criticisms about the role rf) p rose- I w 11 approa:h mIght hinder the free diversion of cutlOn lO Hartford were m d ega y suffiCIent cases at intake. ecutor right through the disposition stage: negotia­ resolution. An advocate's approval of a case is often , " a e to center staff b partIcIpants lO the process, y b. Probation PersoJZrel T ' .. , ting with defense counsel, and appearing at deten­ conditioned upon the conduct of further investiga­ dir d " wo Ctltlclsm were tion, adjudication and disposition hearings, In some tion, which is generally assigned to the full-time ebcte, to the lack of specialization within the 1. Intake screening. pro atlOn staff. One Source criticized the present instances, however, the casework supervisor will investigator attached to the Court, The advocate a, Efficiency All ' , system wher~by intake cases are channeled to the desire legal advice concerning the petition or legal will prepare the case for trial, including the inter­ , . partIcIpants agree that th same probatIon officer who has h d . sufficiency of the case,48 He will then consult with viewing of witnesses, often in his private law Intake. system as a whole does an effective job i: with h' a pnor contacr: t e youth s court career Another so . an advocate, usually by telephone, office, in advance of trial. Although he will fre­ sCreenlOg out trivial cases and cases which might t" d h ',urce Crt- .1Clze t e fact that th ' handled more satisfactorily without d' d' ' e same pWbanon officer In those cases where the child denies the offense, quently engage in discussions with defense counsel ~e makes th tlOn Th 1 ' a JU lca­ , , , e llltake d eCISlon" and later reco d the probation officer has no choice but to refer the prior to trial, most "plea-bargaining" by defense , I' , e so e pOSSIble exception here relates to the dlspos1t10 B b ~ 1 mmen s case back to his casework supervisor for assign­ counsel takes place with the probation officer InC USlon of shoplifting among "mandatory" d" n, Ot, e t that intake s:taff should be IStlOct from regular probation staff ment to an advocate. All contested cases must be before a is filed. Once the petition £led, offenses for d' d' , petition is . a }U lcatlOn hearing's but rhl' IS, seen c. Delay. A ma'o bl ' prosecuted by advocates. The major scope of pro­ cases are virtually never diverted prior to adjudi­ a~ a questlOn of judicial policy, rather than in effi , " } r pro em has been that of delay 10 satlsfYlOg requests made by probation to d fessional prosecution thus consists of the contested cation. The only possible result of post-petition Clency 'Of intake 50 B ' , - that th '" " ut several partICIpants stated cates for screening decisions D 1 f a vo- portion of the 25 % of delinquency cases which are "bargaining" is a decision to admit the allegations, , e 1ll1tlal lOtake screening by pr b ' , e ays 0 up to "a pnor h ' 0 atlOn- ~uPle of months" have occurred betw'een the time judicially handled. Although we obtained no esti­ Advocates do not appear at disposition, however, , d to t e tIme an advocate enters the case-is t e casework supervisor refers a "d '1" mates, this probably constitutes only some 10 or so that if defense counsel's consent not to contest lOa equate, Many trivial cases are said to reach th d ema case to stage f"'l' e an a, vocate for his approval of the Calse for pros 15 percent of all delinquency cases accepted by the petition is conditioned upon some understand­ o lOltla lOterview with child and £ 'I Defens 1 amI y. ecutlOn, The de1a - the Juvenile Court at intake, ing as to dispositional recommendations, he will h f Y was apparently att:ributable to to" e c2u~se may then enter the case, and have t e act that the file had to be sent by 'I Advocates are assigned by the casework super­ have to deal with probation as well. d waste tIme convincing probation andlor an d' mal to an a vocate at hIS law office, and he ml'ght " ' " visor from a list containing over sixty names of In practical effect, participation of advocates is : VOcate that the case be dropped. (One can onl '~l' SIt on It or ong penods of time. One month private who have indicated their inter­ generally limited to only two stages, in the han­ peculate on the extent to h' h' d Y pra~titioners are "ad ' d w lC lOa equate cases " 1 ' " ago a est in being assigned to represent the state or the dling of contested cases: screening and filing the mItre to" b' , so utl~n was found for the Hartford cases 'by sented b y }uvenlles who are not repre- arranglOg with one advocate to come to th C defense in juvenP ~ cases, and who have been petition, and adjudication hearing, They have no , d" Y counsel, and then either handled " once 'k e ourt }U lClall " non­ <,very :vee', and to screen all the cases co1- "accepted" by the court clerk as qualified, The su­ role at bind-over proceedings, simply because bind· ~or prosecuted (as uncontested) without 1ected for hIS re' R lioThe Ch' f . VIew. e now makes over 90 % pervisor assigns defense counsel from the same list, overs "never occur." 49 Advocates do not appear at e lifting oflens;; !.hu?gh hrepo~tedly feels that middle.class shop- of all screen 109 decisions for the Court Th bl? when the child or parent requests counsel. How- 40 Connecticut bind'over rules arc extremely restrictive, The , • IC ave Increased k dl ' lem ha b . e pro - lequtre the solemnl'ty f' d' , mar'e y In recent years Juvenile Court's jurisdiction is exclusive for youths under 16, o JU IClal p d' , r' . S not :en solved, however, for prosecutions community with th' rocee Ings to impress the ,If! His policy is to screen out even uncontested cases lacking The only youths subject to bind·over arc those charged with e serIOusness of h' d tases are actually d' , t IS COn UCt, 1vfost such "lthl,n the Thlr,d DIstrict which take place in rural legal insufficiency, despite the judgment that the child "needs" first degree murder, and the judges have indicated they would . Ismlssed Som ' , WIsdom of the Court' .. ' . de: partICIpants questioned the IOcatlOnS-the Judges "ride' , " the Court's services. not likely exercise their discretion to bind·over even such cases. s unYlel .. l' ' CIrCUIt every week In pre'petition diVersion f h Ing po ley which prevents t hIS respect (and 1 .. . o any suc Case, severa other respects in wh' h the Hartford s St f ' lC 86 Y em 0 proseCUtIOn works well) 87 there IS more dissatisfaction Wlt. h the handling of . d f 1 that there was n o need for an advocate Vlewe. e ..t W h'l1 e a defense counsel rarely CHAPTER VII rural cases. ( d defense counsel) are at dISposItIOn.. ffi r's recommendations for d. Expense. Advocates an. of each case, and ProbatIOn 0 ce 1 . opposes· . a h does reporte dly play some ro e In paid $50 for pretrial ~~e~~ra;:~~ hearing. It is felt disposltlon, l . . h the probation officer another $50 for the a JU lCa me in to screen a informal consultatIon w~t One defense lawyer . one advocate co . h tual hearIng. that by havmg k l't may be able to f fil ne day a wee , pnor tod t e osmga~ t h e pro b a tion officer's plan on number 0 es 0 1 costly basis than reporte opp • . . "both times. The pay for his services on some ess . d • wmnmg PROSECUTION GUIDELINES FOR BOSTON JUVENILE COURT two occaSIOns,. ouslyan state d thel'r admiration for the $50 per case screened. . dicated that sources Unanlm dl work hard for good . tions Several sources m . ff who reporte y . e. Investtga. '1 bi to advocates are . . staff aval a e probatIOn· . sta h , rt of commltm . ent to the state tram- A. GENERAL PRINCIPLES FOR the investIgatIve. f It to do inadequate dispOSItIons so. h dispo"ition decision as ffi . h 'fhey VIew t e:> k JUVENILE PROSECUTION · The polIce are e h 01 1.5. Since unnecessary expOSure to juvenile I .Urt pro­ insu Clent. f h cases referred to t e mg sc o. . h' h the prosecutor can rna e ceedings and to formal labeling and t! .. (ment in investigation on many.o t. e is therefore often a "social" issue,. m IC 0 lawyers, when pressed 1.1. The prosecutor is an aefZ!OCflte of the State's interest v: T W the juvenile COUrt process is often COUnter-produc_ Court. Further inve~t~gatIOn b filed Adequate, no special contnbutIOn' d th t in "serious cases" in juvenile court. The "State's interest" is Complex · d b f e a petltJon can e. 1 ff conce dea. and mUltivalued, and may vary with the type of pro­ tive for many jUveniles, the prosecutor's duty to requIre e or 1 re not availab e, by Center sta . ' ossible) an advocate's trained investigative personne a ed (where commItment was p ceeding and the nature of the particular case. Fore­ promote both the community's long-term seCurity and the best interest of particular juveniles requires with the result that many delays are caus . '" ight be useful. most, it includes: (a) protection of the community partlClpatIOn m . . 'n the process rec- him to encourage and stimulate early diversion of h e partIcIpants 1 from the danger of llarmful conduct by the restraint 2 Drafting of petitions. Seve~al sourc~~ Althoug som d h role of prosecution and rehabilitation of juvenile offenders; and (b) cases from the COUrt and to strive for imposiilg the . .. d the qua Ity 0 , . . d d to expan t e least restrictive alternative available in dealhg with • l' f petitions partlcularly ognlze a nee d'b d above most pre- concern, shared by all juvenile JUStice system per­ CrItICIze d es WhiC. h are n ot subJ'ect to reVIew f h areas escn e , sonnel, as parellS patriae, with promotion of the best a juvenile throughout the juvenile JUStice process. unconteste cas , d ses the advocate in some 0 t e h d of appointing prosecu- interests of juveniles. It also requires that a prosecutor proceed only on d t In conteste ca , f d the present met 0 h legally sufficient complaints or petitions even though by an avoca e. 11 "su gests" language erre of fu11' -tIme prosecutors. For t e 1.2. To the extent that the State's interest in community who screens the case norma y . and that tors to a system . d dI'd not feel that the a juvenile may require treatment or other types of ~fficer 1 e interVIewe protection may conflict with its interest as parens . . n to the pro b atIOn , assistance. Responsibility in this area is exercised for the petItIo d d The solution pro- most part, t lOS . ngements adversely patriae in promoting the well-being of a particular d he part-tIme arra by such means as issuing enforcement guidelines to language is generally a optde . ft or to review the law fees an t . 't of service. Fur- child, the proseCUtor will be required to balance the d for advocates to ra rty or contmul y the police, screening OUt deficient, insufficient, or affected the qua 1 d tes were independent interests based upon the nature and facts of the pose was d d ncontested cases. h felt that avoca . trivial complaints, and actively encouraging and petitions in both con teste an u . 1 thermore, t ey 1 on probation for particular case. For example, to the extent that h participating in efforts to refer juveniles to Other h they mnst re y up interests have to be balanced in given cases, the 3 Detention h eart1t.. gs As prevlOUS. h y even t oug ed that the Court agencies or reach agreement on other acceptable balance might be struck in favor of community pro­ • ear only at detentIon ear- appointments. Finally, they ~rgu arrant full­ dispositions in cases where COurt handling is not remarked, advocates app . - .. of the delin- ffident busmess to w tection when the juvenile presents a substantial the best means for either protecting the community h h denies tOmmlSSIOn may not have su 'f' did someone hired on threat to community security but ?f promoting the ings if t e yout d ocate's presence is • ,0 tion' even 1 It'd Or helping the juvenile. . hich case an a v tIme pros~cu, b dl be youn ct an well being of a child for most other types of quent act, m w probable cause. te situations. ry to argue on a full-time basis would undou h y erienced law- 1.6. The prosecutor shares tlle responsibility with other deemed necessa ffi rues the case for . d posed to t e exp juvenile COurt personnel to ensure that rehabilitative inexpenence as op Hartford is indeed 1.3. In his role as adz'ocate, the prosecutor has responsi_ Otherwise, the probati°ffin 0 cer aregportcdly embar- ow serving as advocates. . . measures undertaken as alternatives to COUrt han­ bility to ensure adequate preparation and presenta_ . b '0 0 cers are yers n h k' d of assistance It IS now dling or pursuant to COUrt-ordered disposition are detentIOn. Pro ati n h detention stage is to have t e m 'k 1 tion of the State's case, from the stage of police d · h' role because t e fortunate " rs It is unll e y, actually carried OUt, and tllat facilities and services rasse m t IS., . h outh whose per­ · f . ate practltIOne . investigation through Post-disposition proceedings, receivmg rom pnv d the role of for treatment and detention meet proper standards often their initial contact WIt. a y d arguing for . he need to expan He is also Committed generally to the advancement of quality. h seek to gam, an however, gIven t tI'tI'on drafting and sonal trust t ey . d' their position from . . h areas as pe of legitimate law enforcement and child welfare . they feel preJu lCes prosecutIOn In suc . . pretrial hearings, 1.7. The prosecutor has a duty to seek illStice in juvenile . t ke dIversIon, goals by the participation of his office, together with detentIOn dl do not feel any qualms review, court m a'h 1 sI've reliance upon other agencies such as the public defender's office, COurt by insisting upon fail' and lawful procedures. the start. (They report~! easures at the dis- · . etc t at exc u . investIgatIOn, ., . b f 'bl or desirable In in drafting COurt rules and legislation, in appellate This entails the responSibility to ensure, for exam­ about advocating re~trhlct~ve :ey have established P d Ill e eaSI e ple, that baseless prosecutions are not brought, that . . t ge by whlc tIme 1 art-time a vocates w .f efforts are litigation, and in other activities which shape devel­ h " rticularly true 1 opment of the law. posltlon sa, . h th and can frank y the future. T IS IS .pa. ort to utilize pros- all juveniles receive fair and equal treatment, that a good relat!on~hi: WI~h: ::e~u exists, therefore, to made, consistent WIth thl.s rep 'than have been 1.4. Commitment to the rehabilitative philosophy of the liberal discovery of the State's case is available to disclose theIr VIe" s.; I 11 detention hearings. . in far more creatIve ways ther juvenile COurt bars the use of certain penal objec­ defense counsel. that exculpatory evidence is made expand the advocate s ro e to a . attemptedecutIOn thus far m. Hartford or most 0 tives to achieve community security and protection. available to the defense, and that excessively harsh 4. Disposition h earmgs.. Most persons mter- jurisdictions. R.etribution, for example, is not a proper goal of dispositions are not sought.lt also entails the respon­ jUvenile COurt prosecution. Sibility to oversee police investigative behavior to 88 ensure its compliance with the law. 89 SPECIFIC GUIDELINES , , C rt the ~jmple term "Advo. Hartford Juvemle ou , d the term "prosecutor" Slt/ml) B. '1 prIn- " , ed We have use (General Principles, para, 3) and his gen­ 'h h precedmg genera. cate IS us " , egative connotations are In accordance WIt t e fIll'nVg standards are b e belIeve ItS n I eral duty to seek justice for juveniles (General presumption of innocence which he enjoys~and b" the 0 ow Principles, sl/pta) para, 7), dples and 0 JectlVes, h stablishment and ecauseb w d tages 0 f c1 ar I'ty and directness, t the need to protect society andlor SOme children ' 1 gard to tee offset y a van d" ish the functions of proposed WIt 1 re tion in the Boston ld b sible to Istmgu , This standard further establishes a requirement against the harms which potentially flow from operation of an office for prosecu shou ffi e fpos that 0 f tel h D'stric:t .. Attorney with. of prior prosecutorial approval of police requests unsupervised freetjom, The person best situated to J uvenile Court. 'hould be established in outthis 0resorting ce rom to more neh,"-r-al , labels which may for arrest warrants and search warrants, This express the community's view of this balance_ ffi f Prosecution s 'f 0 requirement is in keeping with the prosecutor's 2,1. Anthe 0Boston ce or,Juvenile Court, u nder the direction a mislead the public, generally, in regard to the proper criteria for Chief Juvenile Court Proseclltor, overall responsibility for proceedings which reach detention, and specifically, in arguing the applica­ 1 Police e1tfOrCeme1tt an d i1westigatiolt. the court stage, und for policies governing deten­ tion of promulgated criteria to. particular cases­ , y These standards envision the • r oseclltor's responsibility to gIve tion (Standard 2,3, in/rct), Arrest and search war­ the Juvenile COUrt Prosecutor, This stQl'}dard C011t11te1ttar ., , ffi of prosecution 2,2, In addition to the Pd , nce with regard to police is ' f specIalized 0 ce f rants authorize very serious degrees of state inter­ the::efore assigns him responsibility to participate creatlOn 0 a 'I Court Location 0 general guidance a,n a~slsta 'les (see Standard 4.1, d ' the Boston uvem e , . involvmg Juvent . J operatIOns.. d dvise police officers vention, IE requests are screened by a legally trained in the formulation of overall policy, aqd to Oversee locate 10 'I Court should serve to 1 1 0 Id mstruct an a , il1fm) 1e s 1 u " . lar caSf;!S, HIS prosecutor prior to the time they are presented to its execution by the police, probation and parole the office in ,the Juv~m e ote close liaison with taming to panteu facilitate efficIency an prom fort operation: on matters per , d for all applications to the court, the court can have increased confidence officers, and detention staff, While policy should ' th r segments 0 c u approval shou,ld be req~lre est and search warrants. in the justificatiJn for their issuance,7 Also, the the varIOUS 0 e b' nd the court the court for Issuance 0 arr and must be informed by the perspectiv,n~ of these ' h ourt clerk, pro atIon, a prosecutor should encourage the police to make other personnel, the prosecutor is well situated Judges, t e c 'I Court Prosecutor and full use of the power to obtain arrest and search to provide overall coordination, C011tmentary • .r n S ta ndard 4,1, infra}1 weId havesug- clinic, The ~hief Juv~~ll ~e trained attorneys and warrants in all appropriate cases, : ile court prosecutor s lOU In jurisdictions like Massachusetts which apply his prosecutIon st, ,WI d t office for juvenile gest that the Juven 1 l' is on and assistance ' n 10depen en 'b'I' , s for genera la , 2. P1'etrial detentio1t the b i1 system to juveniles, the prosecutor should will con~tltute ,a ill be distinct in personnel f).!1d responsl 1 Itie , f ent methods I' rdmg en orcem encourage the use of release on personal recog­ prosecutIon whIch w 1 tate or local prosecu- to the po Ice ,rega 'I s That aspect of the 2.3, The Juvenile Court Proseclltor should represent the ' , f om any ot ler s , d lides in )uvenl e case , nizance whenever feasible, The prosecutor sllOuld orgamzatlOn r '1 ' h are elaborated 10 Commonwealth at detention and probable cause ' His dutIes, w l1C an po ' 'nteractlon"1 Wit 1 the l)oIice concerns, also be familiar personally with available shelter tlOn apparatus, , f 11 include some tasks prosecutor s Illsof police admm- hearings, He should also coordinate the execution d d whIch 0 Ow, of policies governing pretrial detention of children. and detention facilities, and should encourage the stan ar s 1 I'thout adequate relationships with the udPp~r eV:trast is addressed f d by personne w ' , This standar ,loCO , , In cauying out this responsibility, he may encourage efforts by the Department of Youth Services to presently per orme I' nd probation offi- IstratlOn, - 'b'l't for relatmg on a " -such as ,po Ice a__ tor's responsl 1 1 Y the promulgation of written guidelines to govern make available appropriate new facilities where legal trammg k h-' h are not currently any to the prosecu " d' 'd al police officers detention decisions made by police, detention per­ - ' orne tas s w 1C h b basis WIth 10 IV! U sonnel, and COUrt sraff, needed, Familiarity with available facilities will cerS-and s 'b'lI'ty Generally, e case y case b ht before the court. ' I t's responsl I , d' they have roug enable the prosecutor to fulfill his role adequately partlcu ar agen e lth at all stages regar 109 cases d' s the prosecutor the Commonw a ' f the procee 109 , 1 C011tmentary. The prosecutor has an impor­ as advocate at detention hearings, As stated in tbe should represent J venile Court and At thIS stage 0 , 'h police on severa d'n s in the Boston u " 'b'lity V1s-a-V1S t e tant role to play at detention hearil"lgs, where he General Principles (Sltpta) para, 6), the prosecutor of procee I g 'b'l' for the investIgatIOn, bears responS1 I ., ble for pros- 11 responsl 1 Ity , I If the case IS unsu1ta should represent the Commonwealth in addressing shares responsibility to ensure that these facilities assume overa , of all cases involvmg different leve s, 1 there is insufficient , d presentatIon the factual and legal issues which may arise, In meet proper standards of quality, Where they do preparatlOn an , I prosecution office ecution because, for examP e: t or because it rep- e ' C tion of a specm , ort a compI am , jurisdictions which hold "probable cause" hearings not, he is in a good position to support attempts juv mles, rea I' nd coordinate the varI- evidence to supp h' h nder applka bl e d to centra Ize a 'f 1 of cases w 1C u in juvenile cases, either in conjunction with deten­ by judges and others with special responsibility for shoul serve, 0 er representatIon 0 resents a c ass, , h ld be handled without k ProprIate to pr p tion hearings or separately, the prosecutor has a institutions of juvenile justice to bring inadequacies ous tas s ap d h direction of persons enforcement gU1delwes s ou 'obliged to similar role to play, the state's interest un er t e ' the prosecutor 1S d to public attention, The same holds true, of course, court processIng", h fficers concerne , , d t carry them out, ' , defiCIenCIes to teo h' h This standard also places substantial respon­ with regard to treatment facilities employed at the adequatel~ trame 0 it in the suggestion that, the explam uese 'I ' cases w JC "1 ducatlOnal ro e 10 b Sibility on the proseCUtor for pretrial detention disposition stage of proceedings, There IS some mer , ho ld be gIven He has a SImI ar eftmeasures Y ' J'uvemle courts s u f 'l1egal en orcemen , policy, Juvenile detention policies must reflect a state advocate 10 ", order to dis- reveal the use 0 1 Where more eV1- 3. Court intake h h n "prosecutor, 10 delicate balance between tbe need to avoid unnec­ some title ot er t a , f those of crim- the police or other state agents, , of any case, h ' , I functIons rom ' d f the prosecutIon d essary pretrial restraint of juvenileS-in recogni­ 2.4, TIle prosecutor, in conjunction ""ieh probation staff, tinguish IS speCla f Fox for example, dence is requIre or, h police an t Pro essor , tion both of the barms suffered by children llas an imporrant role at COUrt inrake to ensure that inal court prosecu ors, 'd " 1 In the h Id so mstruct t e the prosecutor s OU " over the subsequ,ent cases inappropriate for judicial handling, and only proposes the tItle'''c ommu mty A vocate, COnfined in shelter detention facilities, and of the Provide general supervls10n " e approprta such cases, are dismissed Or diverted. Prior to the te All f these functIons ar , ~duty to honor every child's right to liberty and the -~---1 F "P rosecu tors In. t he ]UVCnl'I e Court', A Statutory Pro- investigation, 0 'ole as advocate filing of any complaint with the COUrt the prosecu­ ox, 970) 2 The is given this screening responsibility in the posal," 8 Har". J. Leg, 33 (1 , to implement the prosecutor s r District ofpro~eCUtOr Columbia. tOr should review the case to assess irG merits. He also has the primary responsibility to initiate pro­ 90 ceedings to transfer cases for criminal trial. 91 r

C011t11te1ttary. The Boston Juvenile Court tions within the statutory framework of existing intake recommendat' lOn, or pO\ver onl " currently lacks any developed system of intaye Massachusetts law, it might be required that no the intake unit's ref s· 1 h Y to appeal" , u a to t e judg f fi ' tem throu 1 I: screening and diversion. This standard proposes complaint should be accepted by the court clerk SlOn on whether aI' e or nal deCl- g 1 tranSler proceedin 5 1 - comp alDt should be fil d the prosecutor's s . 1 gs, a so turns upon that an intake structure be established and that the (as a basis for the issuance of process under Mass, former solution has th d' de, The pecla compete ' elsa vantag f " competing consl'd' nce to weigh the prosecutor play an important role in its operation. Gen, Laws Ann, ch. 119 § 54) unless the prosecu­ the prosecutor to ole0 permmlDg eratlons and d 'd verru e the" , request such a transI: I 1', eCl e whether to The prosecutor has functions at intake in rela­ tor has countersigned the pleading, This would of the intake unit's ' 1 expert Judgment" , ler n l1S cap , socia work t ff for community int' , aClty as advocate tion to three objectives: 1) screening of prosecu­ not t'liminate the court clerk's present functions, overall desirability of's a as to the erests, he should b ' e responsibility for this I " ear pnmary tions for legal sufficiency, to ensure that any but would erect another screen between com­ , pros CutlOn' th 1 , ( eCISlon on Wll' h tlOn arguably' ' e atter solu- tlon with compla' ',lC consulta_ coercive treatment, whether administered on a plainants and the issuance of summons, in the " reqUIres the COurt ' , lnants and lntak ff' prosecutorial discretion" ' , to exercise a 1flfIuentiai but not b' d' e sta wlll be formal or "informal" basis, rests on an adequate person of the prosecutor. Nor would this require ture of J' d' , 1 ' lDcompatlble with a pos- " m mg. Of co 11 u lCla neutraIJty Per ' , lSsue IS finally for th urse t e transfer legal basis; 2) prosecuting or diverting legally that complaints be drafted by the prosecutor, to make the final d " ' mlttlDg the judge eClSlOn as to th d ' b" to the prosecutor tie COurt to decide, but allocating sufficient cases according to "public policy" con­ although that might be desirable in some cases; prosecution may also 1 d 1 ' e eSlra lllty of h le responsibilit f '" , ea 11m re pr ' d t ose proceedings f ,y or mltlating siderations regarding the nature of the conduct complaints might still be drafted by the clerk's whlCh might later b e-Ju ge cases rees the judge t ' , e presented to hi f d' , appropriately neutral ost ,'q malDtain an alleged; and 3) prosecuting or diverting legally office, but simply reviewed and counter-signed by tlOn, In COutts lik h B m or a judlca- e t e OSton ] 'I on that issue, pure pnor to the hearing sufficient cases on the basis of the juvenile's indi­ the prosecutor, which have more th ' Uvenl e Court, an one jud ' Two other issues relatin vidual needs or propensities, With regard to the second and third objectives judge can of co r d' ge, m such cases the , " use, Isqualify himself, operation of int k ' g ~o the structure and The first function, screening of complaints 3 for of the ,prosecutor's involvement at intake-to , a e screening and d' , SImIlar considerations arise ' machmery will' IverslOn legal sufficiency, entails review of the allegations, divert or prosecute legally sufficient cases on reqUIre resol t' T closely related question: Sho tlth regard to a should the intak '1' u lOn. hese are: and of the evidence adduced in support thereof, grounds of public policy or individual attributes­ e unit laVe auth ' llave an option to u d the prosecutor the decision wheth "omy to POstpone to determine two thiQgs: whether sufficient com­ it is essential that some mechanism exist whereby mendation to fil oppose ~n intake staff recom- , er to lDStltute fo 1 mgs for a subst '1' rma proceed- petent evidence exists to support a prima facie the prosecutor can challenge a refusal by 'intake e a complalDt alth h anna perlOd of ' dence is legally s ffi ' ,oug the evi- administers "in for 1 ' tIme, while it case that waywardness· or delinquency, as defined u lClent to s personnel to recommend the institution of pro, tion of wayward ' upport an adjudica_ offender' Or sho lm a ~erVl:es" to the alleged by statute, exists; and whether the complaint as ceedings. It is most important that intake staff ness or dellDq ~ , u d pnor d" 1 argument can be d h uency, A strong required for the JU lCla be ma e t at th po" approval drafted is both legally sufficient and sufficiently have the discretion to screen out or divert cases not be bOund b 'k e prosecutor should b I: r V1SlOn of extend d ' y mta -e staff r ' eLOre adjudication? And ' e, serVices detailed to give fair notice to the juvenile of the even when sufficient evidential basis exists to sup' hat file a complaint 4 1 ecommendatlOns to guide preadjudication cmena should matters charged, These functions implement the port the filing of a complaint, As the General [ ' even w len sufficient 1 1 s.o::reenmg,:v and d' , lor prosecution eXI'st Th . ega grounds cases? With regard t h fi lVerSlOn of principles that "a prosecutor proceed only on Principles state (sttpra) para, 5), "unnecessary , e prosec t " , 0 t erst qu ' . position to ' h u Or IS ln a unique m some jurisdictl'on h' estlOn, the system legally sufficient complaints , , , even though a exposure to juvenile court proceedings and to for, welg other fact 1 ' s w ereby , bear upon the de ' , ors w llCh properly may delay iiI' " , COurt mtake staff juvenile may require treatment or other type of mal labeling and treatment in the juvenile court CIS10n to pro " ' mg a petltlon for aI, COurt: whether th . se,cute m (juvenile) the youth "volunt '1" , , ong penod while assistance" (General Principles, supra) para, 5), r~ocess is often counter-productive for many juve, , e comm unity lD t ' an Y partlclpate ' , tIOn justifiec the ex d' erest m prosecu- probation has been c ' "d s lD mformal and that "the prosecutor has a . , . responsibility niles," In many cases technically warranting pros' ~ pen lture of s I: t1tlClze The def ' and prosecuto ' 1 carce en10rcement practices relates to th 'h.' ect m such to ensure , , , that baseless prosecutions are not ecut!on, neither the juvenile's nor the community's na man power d e m erent coe ' resources' and h h' ,an of COurt such restrictions 'd rClveness of brought," (General Principles S1/.pra) para, 7), It interest would be served by such action, Instead, , w et er m h' t:' ,1mpose at the 11 ment it is the SOrt of l'k 1 IS pro esslOnal judg- cretion of intake st ff b- uncC'!1tro ed dis- would be clearly improper to permit the institu­ informal resolution of the precipitating dispute, , case 1 -e y to l' , a , w ose power d ' tlOn, given j'udicial att' d resu t lD adJudica- t h eir ability to iiI " , . enves from tion of court proceedings on the basis of a com­ perhaps accompanied by diversion to other com' nesses Th Itu es ,creand d'b'l' 1 1 Ity of wit- e a petltlOn at ' , e prosecutor's vanta " youth fails to "c00'Perate " T any t~e if the plaint which was known to be insufficient to munity services agencies, would be indicated, How' arguab Iv give 1 ' , ge POlDt m the system , , , ' 0 control thlS p , . s 11m a unique ' some junsdlctions h d ractlce, warrant court jurisdiction. Because the issue of legal ever, in some instances the police or other com' not b b' expertlse which should proposed b 11 av: a Opted the intake system plainant will feel aggrieved by an exercise of intake e su servient to the ' d y t e Chlldren's B ' sufficiency is a technical one, the screening respon­ staff. JU gment of other intake Gttide for Famil a ,- ureau Legulative sibility sho~lld be exercised or reviewed by a staff discretion to dismiss a legally sufficient case, 13 . ~ nd Ittve?ztle Comts (1969) § § A distinct but related ' , and 33, Thls system pe " ' lawyer-prosecutor, rather than by a,layman, In those cases, the disagreement should be referred attempt 'f . rmlts Intake staff to standard h h ,question covered by this an m ormal settlement f h To enable the prosecutor to perform these func- to the prosecutor for his judgment whether, all , W et er a juven'l h very short period f' 6 0 t e case for a from the juven'I 1 e s ould be diverted o If a " h :1 The "complaint" refers under Massachusetr~ law (0 the things considered, the community's interest would tIme ___ 1 e court to the criminal justice sys- been iiled b 11 . petltlOn as not formal pleading alleging waywardness or delinquency, known in be furthered by the institution of proceedings, At y t e end of that period it can most jurisdictions as the "petition," We refer to the informant's 40 ' ---__ ,never that juncture, the prosecutor could either be given • c a partIcular kind of ' USee Mass G L application to the court for the filing of a complaint as the ;~~' Wheth:c delinquency Shou~~~~lal~t radthec than another, il ,en, aws Ann, ch, 119 § 61 "request for complaint," unreviewable authority to sustain or overrule the ProteCtIOn, a ege , or need for care The Legislative Cllide ' • Pderiod is ten days (§I3 (e) I)S not e,ntirely clear whether that 92 ays W as pro ba b ly intended, or thIrty days (§ 13 (d) ),' ten 93 1

1 ------1 1 viewing and summoning of witnesses, and the con­ diversion without adjudication, and whether certain .ntake criteria. This conclusion 1 and enforcement 0 f 1 • ., f 1 duct of further investigation when necessary. issues can be disposed of prior to trial by stipulation ... be offered for an follows from his overall responsl~I:1ty or aw b filed "Informal serV1ces may Paragraph 3 of the General or otherwise. In the interest of fair and expeditious e d 'd . d as a means of diverting the case t and prosecution poltCles, and for C01ttl1te1ttary. 1 exten e peno . d d not en f orcemen ., . . if t Principles, sltpra, states: "In his role as advocate, handling of the case, he should grant the defense . and partlClpatmg 10 el or s 1 without an adjudication, but the JU ge, an. d "actively encouragmg the prosecutor has responsibility to ensure adequate liberal discovery of 'information and materials rove and supennten · l'les to other agencies to reach agree- solely intake staff , must app . d s 7 to re fer Juven . . . in his possession, within such limits as have . 1 f of consent ecree. r acceptable dispOSItIons 10 cases preparation and presentation of the State's case, 1 such arrangements 10 t le o:m th of time ment on othe f been established by the American Bar Association, dling is not the best means or from the stage of police investigation through post­ L z'slative Gttide restricts the leng . where court h an . '1" Standards Relating to Discovery Before Trial 1 The eg . be rev1ved . . h the community or the Juvem e. disposition proceedings." This standard implements . h' 1 the formal prosecution may protect1Og elt er (Approved Draft, 1970). This includes notifying 1n w 1C lv d the con- that principle by stating the prosecutor's duty with 1 if the outh violates his agreement un ~r . (General Principles, mpral para. 5). y regard to preparation for trial: to select, interview the defense of any exculpatory evidenceJ and of A nd the prosecutor lacks dlscretlOn to sent decree. £.. d . . f cases befmoe adj'udicatiolt and summons witnesses, and to see that further the substance of any written reports resulting from 1 press for an adjudication so long as the ecree 1S 4 DiveYS101t 0 investigation is carried out when necessary. The social investigations under Mass. Gen: laws Ann. 1 not violated. b' d ith strict 2.;. In suitable instancesdtl;r~:~:~c~~~i:~~~:d~~~~~~~~: latter task might be accomplished by use of the ch. 119, § 57, and from medical, psychological, or The consent decree device, com me w the use of consent e other examinations. See General Principles, Sttp1'a cases in which a complaint has been filed. police, or by investigative staff attached directly to J 1 limitations on the intake unit's power tof~ofstPonel para. 7. On the other hand, the prosecutor's legal . h tome 0 10 orma the prosecutor's office. See Standard 3.2, infra, on filing a complaint pend10g t e ou c k' 'th training enables him to judge when defense 1 g C011t11te11>ta't"y. Standard 2.4, sttpra, gives. the personnel. In general, the prosecutor's investiga­ diversion efforts, would seem most in eepm wI r a responsibility to encourage the dlver- tion and preparation for trial should meet the requests for discovery should not be granted-in the Boston Juve- prosecu to '1 t in the 1 ast and current arrangements at .' sion of suitable cases from juvent e lc?ur . . standards established by the American Bar Asso­ order to protect the identity of informants, for p~ E d d pre-adjudication diverslon d ntle Court. xten e . 1 )eriod before a complaint is fil~d. T lIS lVerslOn ciation, Standards Relating to the ProseCfttion . example. liberai discovery can expedite not only 1 efforts are commonly m~de by the j~dge:, l;at~:: I 'b'l't is extended by thlS standard, up to function §§ 3.1-3.3. the conduct of adjudicatory hearings, but also the responsl 1 1 Y , . . 1 pp ov 1 is J form of "continuance without a find1Og,. . the time of adjudication. Since judlCia a : ; contingent planning of dispositional recommen­ 1 than by other staff free of judicial supervisflod~' In 6. Pretrial motions and discovery dations. h bulk 0 Ivet- necessary for any decision t? sUhspen~ or ~~~ r::e 1 other juvenile courts, however, t .e fil' 2.7. The prosecutor has the responsibility to represent . . . k place pnor to the mg rosecution once a complamt as een d 'd" sian actlVltleS may ta e h Id P " h' has been a opte m the Scace at hearings on pretrial motions. He should 7. Presentati01t of State's case at trial 1 the prosecutor s au "consent decree mec anism d d of a petition. In suc h courts, .' S Commentary to Stan ar also be available to confer with defense counsel 2.8. Professional prosecutors should represent the State several jurisdICtlons. ee t before trial for the purpose of expediting resolution at trial whenever possible. Where manpower limita­ 1 exercise responsibility to ensure that abuskes do ~ot Ii . p' In the Boston Juvenile Court, consen . 1 t do so by issuing inta e po lCy 2.1, Sit la. . d b the device of of the case. This includes the duty to grant liberal tions necessitate the use of non-professionals, such occur. H e mlg 1 decrees as such are not use, ut discovery to the defense. as police or law students, they should act under close 1 uidelines, as discussed below. .' . fi d' ng" serves the same professional supervision, and only in restricted cate­ g d d final issue for discuSSlOn 1Ovolves "continuance Without a n I . f The secon an . Id d' n the proceedlOgS or C011t11te",tary. The prosecutor's responsibility gories of cases. 1 content of the criteria which shou basic purpose of suspen 1 g . . d' . lly the source an d . nd diver- a fixed period while the youth submIts to JU tCHl of to appear as advocate of the State's interest in ed to govern intake screenmg a 1 b e emp loy f 11 . the supervision or treatment. The purp?se juvenile court proceedings requires that he take an C01n11lentary. This standard proposes that . d" both prior to and 0 ow1Og spons ored d' w1thout Slon eClSlOns, . bl 1 this is to try to terminate the procee lOgS. active part in making and responding to pretrial professional prosecutors should represent the state 1 . f 1 l'nt It is clearly deslra e t lat filing a a camp a . . . g to a formal adjudication of de110quencYd motions. In addition to hearings on bind-over and at trials whenever possible. This contrasts with the the criteria governing intake be ~rtic~lated 10 some resortm . b courage 1 ardness Such diversion 1S to e en . detention, discussed sttpraJ these may include current system of prosecution in Boston Juvenile form such as internal policy gU1del1~e~, to e~.sur~ or wayw· f d the juventle motions to supprc<;s ~vidence, grant discovery, order Court, which relies almost exclusively upon non­ by the prosecutor, in order to sa eguar. . 1 . 1 uniform and reviewable deC1SlOnma mg. · d stlgma to gam ratlona , d 1 . for ed a medical examination, or dismiss a complaint on lawyer police prosecutors. The proposal is based from unnecessary proce lOgS an '. na 1 We hav~ pointed out that various mo. e s eXlst . . . h rogram of correctl0 double jeopardy grounds. on the belief that introduction of professional 1 , . ole 10 these deCl- his cooperatIon 10 t e p. .. . This stan-. deciding the prosecutor s pre:1se r . _ t and to conserve JUd1CIal tIme. The prosecutor's interaction before trial with prosecution in all cases will raise the general level . be·yond his root function of scteentng com treatmen , . 1 d t to encour- defense counsel should not be limited, however, of representation presently afforded both the state 1 Slons, ar d f h' ole clard therefore imposes on hllI~ ne u yd'udicatiO n plaints for legal sufficiency. Reg less 0 1S r tj) adversary motion practice. The prosecutor has a the use of post-complalOt, pre-~ ~ . h and the defense. 1 age . otlatl0ns Wit in the intake process, however, he should pla~ a · . through constructIve neg vety important role to play in cooperative rela­ Should manpower limitations necessitate the substantial, if not leading, role in the .formulatton dIverSlOn probation and defense counsel. tionships with defense at this stage. He should take continued use of police prosecutors in some cases, 1 • ement to a con- the initiative to elicit defense views on such issues or limited prosecution by law students or other - 7 In some jurisdictions the prose.cl\t~r s agre.. others the 1 . \ . uisite to itS Issuance, m , ., as whether the evidence warrants filing of a com­ non-professionals, then those persons should oper­ sent decree IS a pr~req k b'ections to a decree, but 5. PYeparati01t of cases for tri~bl'l' for pre- . responSl 1 1tY prosecutor has the nght .to ~a ~ 0 ) (, The prosecutor has primary . inter- .~ ~laint, whether there are desirable possibi.lities for ate under the close supervision of the Juvenile . d errule hiS obJectIOns. h 2 . ) . . 1 d' the selection, 1 the )t! ge may a\' A" Standards Relating to t e paring cases for wal, wc u lUg S See American Bar SSOClatlOn, Prosecution Function (1970) at § 2.5. 95 1 94 1 Court Prosecutor. Furthermore, certain cases- munlty,. an d a conception of the probation staff as positional orders and treatment measures, including 1 .d ntiary pro b1ems t not advocates. As an advocate, the pros- which present major lega or eVI e . exper s, . ffi . h proceedings to revoke probation and parole. -should not be handled by non-professl~nals. We ecutor ra th er than the P' robatlOn 0 cer . IS t h e tor will therefore be a lawyer familiar with the nze1t "social" philosophy of the Juvenile Court, and Iso recommend that an investigating pollce officer appropnate. person to communicated' With.. t e1 Conz tary. Juvenile Court proceedings do committed to its constructive goals. He must have anot be eligible to prosecute, "h'IS own "case '.because h defense an d 1'f ne,cessary to contest Isposltlonab h not always terminate with the findings at disposi­ of the awkward role conflicts inherent tn t at recommendations which may be made. y t e tion. Further proceedings may occur such as reVOca­ the ability to communicate well with both legal and non-legal personnel in and outside of the situation. defense. His presence not only frees probatlOn from tion of probation or parole, proceedings to modify, Court. the burden of advocacy, but may free th~ defense extend or terminate dispositional measures, and 8. Dispositio1t lawyer from any inhibitions he may hav~ m oppos­ proceedings to seal or expunge records. At such Given the broad sCOpe of the prosecutor's respon­ 2 9 If there is a finding of delinquency or :vady:vard~~ss, mg. t h e recomm endations of lay probation. officers" proceedings the State should be represented by the sibility envisioned by these standards, the Chief . . the prosecutor should ensure that a faIr ISpOSltlOnd for fear of arousing the court's "protectlv~ re~c­ Juvenile Court Prosecutor, whose role is to inter­ Juvenile COUrt Prosecutor must be a full-time . . h ld and that appropriate recommen a- , hearIng IS e , hurt In dons or endangering cooperative relationships With pret and advocate the community's interest in the salaried official as should the assistant prosecutors dons for disposition are presented to t e co 'd this probation staff. outcome of the proceedings. It is far preferable for under his supervision. Under special circumstances, appropriate cases, he s h ou ld make. a recommenkId a-e In those courts where probation plays an asse~- prosecutors might be assigned in individual cases don as to disposition based upon hIS own no~ e . g the prosecutor to argue the case for revocation of from among interested and qualified private prac­ f the case. The objective of the recornn:en ~t~on tlve. ro 1e, at dl'sposition the prosecutor may find. It . probation, than for example, for the probation offi­ shouldo be to secure not t h e most se~ ere. diSpOSltlOn . unnecessary in some cases to appear at the dispOSI­ cer involved to do so. Not only might the probation titioners, like the system used by the H~rtford in each case but one entailing the mInImUm restr.1C­ tion hearing, especially in minor and uncont~sted officer be a witness in the proceedings, but per­ Juvenile Court. If assigned prosecutors are used, don on the ~hild calculated to prevent further delIn­ cases. But the prosecutor should never abdicate forming the advocacy function may interfere with they should be required to participate in the train­ quency or waywardness. To this end, th~ prosecuto~ his overall responsibility to ensure that the. cou~t his Other roles vis-a-vis the probationer. Profes­ ing programs recommended by Standard 3.3, i1Jjra, should consult with probation staff and, If req~este. and they should work under the general super­ b sel for the child, should disclose the diSPOSI- is presented with concrete and acceptable dlsp~sl­ sional prosecution is also desirable in view of the y coun. ake to the vision of the Chief Juvenile Court Prosecutor. tion recommendatIOn he proposes to m tion recommendations and that open com~unlca­ increasing extent to which Constitutional due court and the reasons therefor. tion and disclosure exists between probation and process requirements are becoming applicable to There are many options for the method of the defense prior to disposition. these post-dispositional stages of proceedings. Lay appointing the Chief Juvenile Court Prosecutor. COml1te1ttary. This standard asserts the desi~­ advocates may not be equipped to deal with the He might be appOinted by the District Attorney, ability of continuing the lawyer-pr~se~ut?r s 9. Appeals and collateral attack manifold technical issues of procedure, evidence by the Corporation Counsel, by the Governor involvement in the case past the adJud~catlOn, 2 10 The Juvenile Court Prosecutor should repr~sent and substantive "rights to treatment" which may acting upon the recommendation of a special board · . . the State at appeals and in collateral proceedIngs, and into the disposition stage. His funct~ons at arise. or council. For any case, the Chief Judge of the whether in the Juvenile Court or other court. dISposltlOn· . . are of two kinds . First, partlCularly. Juvenile Court should participate fully in the f 1 11. p.erS01t1lel a1zd trai1ti1tg where the underlying facts supporting aIter~a:l:e COl1tme'Jttary. The system of prosecution in 1 appOintment process. The precise method of ap­ dispositions are contested, he has the responslbillty 3.1. Juvenile COUrt Prosecutors should be members of pointment to be chosen is a matter which requires the Juvenile Court envisioned by these standardS t'I" to ensure that the hearing to establish th~se. facts the Bar. They should have demonstrated legal ability further study. During an interim year of experi­ is characterized b y a unique. approach to represen-. I in the lield of juvenile Or criminal justice, demon­ is fair and that only reliable evidence IS tntro­ mentation, however, we anticipate that the juve­ . This approach would be fostered by specla i'j strated interest in the problems of juvenile delin­ duced.' Second, he has responsibiiIty to that tatton. d 3 3 infra f nile court prosecution office would be a special en~ure .. nd experience See Standar ., 'J quency and a commitment to non-punitive responses an adequate dispositional recommendation IS placed trammg a . . :1,1 to those problems. project funded within the office of either the Suf­ In order to safeguard the integrity of thiS system, . before the court. He may do this in sever~1 ways. folk County District Attorney or the City of BOston . . 'mportant that the Juvenile Court prosecut?r, j' COm1Jte1ttary. The fundamental premise of Corporation Counsel. By advance consultation with both probatlOn and It IS I h outSide 1 rather than a District Attorney or ot er 1 j. these standards is that the prosecutor in juvenile the defense, he may stimulate them. to conduct the 3.2. In addition to lawyers, the Office of Prosecution lawyer represent the State m. appea 1s and.. collateraS ffi- ,I'1 COurt ought to be a lawyer. Therefore, this standard necessary investigation and planning t~ propose should include adequate numbers of trained social proceedmgs, . such as h a beas c0 rPItS petitIOns, U 'I 1 requires that he be a member of the Massachusetts recommendations--either separately or tn con~ert l workers, criminal investigators, and para-profes_ · t manpower should be allocated to the Juvem e J '. Bar. While demonstrated proficiency in criminal sionals in law and social work. -which seem acceptable. In additi<;>n to servmg Clen d ds as they i Court Prosecutor to meet these em an i ' juvenile justice is also made a necessary condi­ as a catalyst to others, in some cases the p:ose~u.tor ~r may aClSe.. {'h tion of eligibility, it is not a sufficient condition: Co 11Z11te1ttary. This standard outlines. the may feel constrained to make his own dlspos1t10n a sympathetic interest in the problems of juvenile major personnel needs of the Juvenile Court Office recommendation to the court, in opposition to that 10 Proceedings at the correctio1t stage h f delinquency, and a demonstrated personal commit­ for Prosecution. The Chief Prosecutor should proposed by probation and/or defense. His duty to 2 11• h ld represent t e i The Juvenile Court Prosecutor s ou . te dis- j' 1 ment to a non-punitive approach to these problems, supervise a staff of lawyer-prosecutors adequate for do so stems from his role as advocate for the com- · . State in proceedings to rnO d 1.f y or term Ina are also essential criteria for selection. The prosecu- the legal demands facing the office. In addition, he must have ready access to the services of social 96 1"J j it, 97

, , cial investigations at various . 1 high standard of knowl- workers to conduct so d ntion and disposition maintain a contmuo~s y. h' work. Orientation . k bind-over, ete, k d d rstandmg m t elr organizational and procedural varIatIOns among stages: mta e, . d These social wor ers . 11 orne to mm . ffi . edge an ~n e h' d by an intensive program juvenile courts in the United States provide few prinClpa y c b hed to his 0 ce; m training mIght be ac le:e 'ons and institutional paring and arguing motions, etc.), a full-time staff arily e attac d' s dISCUSSI , reliable models. need not necess . d in a separate of lectures, rea mg, ... taff with the court of four prosecutors would probably be Sufficient 1 may be organIze . h . "d to £amllIanze s In the Boston Juvenile Court, with no previous , some courts t ley ., some way WIt visits, deSIgn,. b k ound and philosophy in the Boston Juvenile Court. The assignment of . . .t and coordmate m . h . es the ac gr f experience in the use of professional prosecutors, probatlOn um , Sk'II d investigators WIt and Its process, ., nd the interplay 0 prosecutors from the private bar should be con­ 'office 'I e . . . 'nstltutlOns, a the difficulty in making accurate manpower pro­ the prosecutor s . '. . tion are an essen- of juvemle JustlCe 1 . encies such as the sidered as a temporary measure to relieve serious . . immal mvestlga d h commumty ag jections is further compounded. Furthermore, these expenence m cr Frequently, cases court an ot er .. . police and health caseload pressures in the event that they arise. £ the prosecutor. I 1£ admmlstratlOn, , standards contemplate a far more expansive role tial resource or h been incomplete y schools, we are .. h ld also introduce staff The juvenile prosecutor may also require the . nile court ave for prosecution than is currently played by police referred to Juve l' other referral source, care systems. Tramm~ s °lu lly available outside SUPPorting services of an investigator and an indi­ t serVIces oca prosecutors. These broader responsibilities, which investigated by the po lCe or be conditioned to the treatmen. . d for selecting the vidual to assume social service liaison responsibili_ .. to prosecute may . d kllls reqUIre would include participation in screening and divert­ and the dec1S1on h' estigation. Investl- the court an to . s f particular children and ties. Depending upon emerging needs, these posi­ d ct of furt er mv . bi '1' . ppropnate or . d ing cases and in the preparation of consent decrees, upon the con u ht to be aval1a e fao Itles a f ution poliCles an tions may be filled by assigning p~rsonnel from h d to the court oug . . '1' A anual 0 prosec could have an effect on the number of cases which gators attac e , direct supervIsIon. other agencies (e.g., police or probation officers). . d the prosecutor s faml les. hm Id be prepared , f'or continuing use require a full hearing on the facts. On the other to do thIs un er I' the fields o£ law procedures s OU . . of new personnel. As stated earlier, staf:fing requirements for a . d in onentatlon lland, the creation of mechanisms for increasing Para-professional personne m useful roles for in operatIons an hould also consist juvenile prosecutor's office are dependent upon a k n also perf orm .. rogram s pre- and POst-complaint diversion opportunities and social wor ca. nity like Boston, Part of the trammg Ph' h pro- wide aSSOrtment of variables. For this reason, it is I universIty commu . . . s or conferences at w lc may well increase the number of court referrals. the office. n a '1 bl for this functlOn. of periodIC semmar . h persons from other not suggested that staffing recommendations for . 1 rly aval a e . ff ld meet WIt However, while difficult, a reasonable assess­ students are parncu a f mple to perform secutlOn sta ':OU d' the J'uvenile justice sys- the Boston Juvenile Court Would necessarily apply f I students or exa , g . . mvolve m . f ment of prosecutorial staff needs is not impossible. The use 0 aw '. investigations, at to other courts. However, in determining prosecu_ k intake screenmg, . or amzat.l0ns h 01 officials, representatlves 0 In the opinion of the COurt's Chief Judge, five Or legal tas 'S at d post-trial hearmgs, tern: polIce and ~c 0 t gencies such as the torial needs, consideration should be given to the f simple pre- an d bIte treatmen a six attorney-prosecutors would be required to pro­ various sorts 0 . - under adequate private an pu . public defenders, following factors: the scope of prosecutorial h d' dication hearmg f f Y th ServlCes, vide comprehensive, high quality community repre­ and at tea JU . 'b'lity and one 0 Department 0 o~ blems of common involvement (will he playa role in intake deci­ '" ttractive POSSI 1 , h ae VIews on pro . sentation. In support of this estimate, it is noted superv1S1on IS an a t legal contexts. etc., to exc ano ld contribute to mam- sions, diversion and disposition); the extent to in other curren S h forums WOU . that the four to six public defenders who now pro­ proven advantage f h experience to the concern. uc .. the prosecutlOn which present court resources will retain respon­ . perspectIve m vide defense representation in the COurt do not The educational value 0 sluc munity students tainmg an open . 1 f sing upon the non- sibility for prosecutorial functions (for example, b tial For t le com , offi c,e and to a contmua re ocu have sufficient time to prepare their cases ade­ students is su stan : b petent and ener- drafting petitions); the court's caseload (including . . 'penSive ut com . . . Is of the COurt, quately. Our own observations indicate that two. prOVIde an mex Iue of exposmg non-judicial adjustments, judicial proceedings and . The long-term va . pun1t1ve goa . 'I Court Prosecutor, the prosecutors Would be essential merely to provide getlC resource. d l't of the juvemle 3.4. Including the Clll~f Juvenl~\e staffed by four fuIl- contested cases); the amount and scope of defense I theory an rea 1 y bare physical coverage for the court's two COUrt­ students to t le .. ble Finally, the Office of ProsecutIon shou plated that law representation; the number of judges who hear ould be mestlma . I is further contem . rOoms which are frequently in simultaneous ses­ justice system w d ho ld be used as the time prosecutors. t 'd upporting services juvenile cases at the same time; and the availability 'on can an s u students will be used to provl e ~aI service liaison sion. It is not unrealistic to assume that the prose­ d that lUvestlgatlve. .. an d SOCl of supplemental personnel resources (e.g., law student connectl . research and evalu- an . d Cutor's out-of-court responsibilities Would consume students) . £ d cting contmuous assistance will be reqUlre , basis. or f con h prosecutlOnu . £unc tion in the court, as an amount of time at least equivalent to that com­ atlon 0 t e f h . enile J'ustice system. 12. Relatio1tShip with other age1zcies I spects 0 t e JUV C0l1t1ne1ttar'Y. The q uestion . of manpowerfor which mitted to court appearances. Accordingly, it is anti­ well as ot ler a I Id be devised and 1 " ng program s 10U d tors' offices IS one cipated that a minimum of four prosecutors Would 4.1. The Office for Juvenile Prosecution should consult 3 3 A specia traml . C t Prosecutors an standards for prosecu '1 bl An examination of . . . d JuvenIle our be required to provide adequate sE'tvices in the regularly with the Office of Legal Counsel to the adminlstere to T" hould include both few guidelines are aval a .e. . h the National Police Department, for the purpose of: ffi onnel rammg s d nsultatlOns WIt other 0 cer pers . .. g education involv- COUrt and that a larger number may well be neces- . . and contInum f the literature an co eals no reliable (a) keeping the police informed of current legal initial OtlentatIOn, . in the field 0 . " Attorneys rev. . sary. In the King County Juvenile COurt (Seattle, and COUrt developments; ing liaison with related agenCIes AssociatIon of Dlstnct .. ro er prosecutonal Washington), which has twice as many annual juvenile justice. guidelines for determmmg f ~ P nile prosecution (b) encouraging and assiSting in the preparation d I the area 0 Juve h COurt referrals as the Boston Juvenile Court but and enforcement of Police Department guidelines staffing nee s. n r el undeveloped, t e Cimt1ne1ttm''Y' Even .a.ssuming h the illexercise be need of which, until recently, was la g y ronounced. only half the number of cases which are judicially for juvenile cases, including criteria for police inter­ vention, custody and detention practices, and dis- ' ff ng deClslOns, t ere w Problems in t hIS· regar d are even more 'bilityp whlC . h disposed of, four prosecutors are used. It is believed special care m sta 1 • d to orient juvenile cretion to dispose of cases without referral to COUft. for a training program desltne ersonnel, and to The widely varymg. sc ope of ..res pons d' t'ons I and t h e that with the effective utilization of law student prosecution lawyers and ot er p prosecutors have in different JUns lC 1 perSonnel to provide back-up assistance (e.g.) inter­ Co 11t1/Ze1Ztary. In Standard 2.2, Sttpra we viewing Witnesses, conducting legal research, pre- addressed ourselves to the prosecutor's role in relat­j 98 ing to individual police officers about the conduct 99 of particular cases. This standard enVISIons a tinuous liaison with public and private community broader role for the Office for Prosecution in rela­ agencies which provide preventive and treatment services to juveniles. APPENDIX J, tion to the Police Department-that of general liaison. This ought to be a multi-faceted role. In C0l1t11te1ttm-y. The Office for Prosecution in one aspect, the prosecutor serves as advisor and the Juvenile Court plays a key role in the enforce­ assistant to the police, communicating court atti­ ment of the law involving youth. In order to func­ tudes and current legal developments, with the don effectively and efficiently, the Chief Juvenile aim of improving police effectiveness in dealing Prosecutor must maintain regular liaison with SURVEY CITIES with the court. In a closely related aspect, he helps agencies other than the' Police Department which to shape police enforcement policy, so that it com­ affect youth. Coordination with probation and ports with the overall goals of justice, including Questionnaires were sent to J' '1 youth services administrators is of crucial import­ l' uven1 e co . d resort to the court only when necessary and proper ance, since these agencies are directly engaged in 1sted below. The thirty-two citi . urt JU ges serving in the 100 lar es " . under express, fair criteria. lastly, in his liaison role naires were returned es wh1ch bear an asterisk (*) are th f g t CIt~es 10 the United States as the treatment and control of prosecuted youths. . ose rom whIch n 1 ' ' he helps the court to avert or meet criticism by 1 New York City 1\T Y k a camp eted question- liaison with other public and private agencies, 2' , .L'Iew or 34 T interpreting its policies and actions to the police. including the school system, child welfare orga­ ChIcago, Illinois oledo, Ollio ~ 35 1\T *68 He thereby helps in insulating the judges from the nizations, and private treatment agencies is also :) Los Angeles, California .L'Iewark, New Jersey Mobile, Alabama 4 Philadelphia, Pennsylvania 36 Portland, Oregon *69 Shreveport, Louisiana pressure to respond to such criticism. As a lawyer important. To them, the Chief Juvenile Prose­ * 5 Detroit, Michigan :; Oklahoma City, Oklahoma *70 Warren, MicJligan and prosecutor, he is likely to gain a more sym­ cutor can serve as spokesman for the court in 6 Houston, Texas IOllisville, Kentucky 71 PrOVidence, Rhode Island pathetic hearing from the police that, for example, explaining prosecution and treatment policies, and *7 Baltimore, Maryland 39 Oakland, California 72 Ft. Wayne, Indiana might a head of juvenile court probation ser­ in stimulating cooperative responses from the com­ 8 Dallas, Texas *40 Long Beach, California 73 W. orCester, Massachusetts 9 ,,,, *41 0 1 vices. For all these reasons, we believe the prose­ munity. For example, the prosecutor might explain wasllington, D. C. ma la, Nebraska 74 Salt Lake City, Utah 10 Cleveland,Ollio *42 Miami, Florida *75 Gary, Indiana cutor's liaison role with the police is of principal court intake policy to school administrators, to 11 IndianapOlis, Indiana 43 Tulsa, Oklahoma *76 K importance. encourage them not to use the court as a "dumping noxville, Tennessee *12 Milwaukee, Wisconsin 44 Honolulu, Hawaii 77 Virg!nia Beach, Virginia ground" for truants who might otherwise be dealt 4.2. The Office of Juvenile Prosecution should consult 13 San Francisco, California 45 El Paso, Texas *78 Ma dIson, Wisconsin regularly with the departments of probation and with more effectively. In such liaison efforts, the 14 San Diego, California 46 St. Paul, Minnesota *79 Spokane, Washington 0 youth services, to facilitate mutual coordination prosecutor may in appropriate instances be able to 15 San Antonio Texas 47 Norfolk, Virginia *:1 Kansas City, Kansas with regard to the functioning of probation and insulate the Juvenile Court Judge from community 16 Boston, Mass~chusetts ::~ Birmingham, Alabaraa Anaheim, California treatment services. It should also maintain con- pressures or misunderstanding. 17 Memphis, Tennessee *50 Rochester, New York 82 Fresno, California 18 St. Louis, Missouri Tampa, Florioa '"83 Baton Rouge, Louisiana 19 New Orleans, Louisiana 51 Wichita, Kansas *84 Springfield, Massachusetts 20 Phoenix, Arizona 52 Akron, Ohio 85 Hartford, Connecticut 21 Columbus, Ohio *53 Tucson, Arizona *86 Santa Ana, California 22 Seattle, Washington :~; Jersey City, New Jersey 87 Bridgeport, Connecticut 23 Jacksonville, Florida Sacramento, California 88 Columbus, Georgia 24 Pittsburgh, Pennsylvania *56 Austin, Texas *89 T acoma, \'{1ashington 25 Denver, Colorado 57 Richmond, Virginia 90 J:ckson, MiSSissippi ·26 Kansas City, MiSSOUri 58 Albuquerque, New Mexico 91 LIncoln, Nebraska 27 Atlanta, Georgia 59 Dayton, Ohio *92 Lubbock, Texas 28 Buffalo, New York 60 CharlOtte, North Carolina 93 Rockford, Illinois - 29 Cincinnati, Ohio *61 St. Petersburg, Florida 94 Paterson, New Jersey 30 Nashville-Davidson 62 Corpus Christi, Texas 95 Greensboro, North Carolina County, Tenn. 63 Yonkers, New York 96 Youngstown, Ohio San Jose, California 64 Des MOines, Iowa *97 Riverside, California "\' , - Minneapolis, Minnesota 65 Grand Rapids, Michigan 98 Ft. Lauderdale, Florida Ft. Worth, Texas *66 Syracuse, ]l[ew York 99 EvanSVille, Indiana 67 Flint, Michigan *100 NewpOrt ]l[ews, Virginia

100 101 APPENDIX 8 I C Authorize Issuance of Arrest Authorize the F'I'I rn g of "r' ltition? TABLE l.-Wh~ar~:rits? (68 Cities) TABLE 4.-Who Can (68 Cities) - I TABLE 7.-Who Must Sign the Petition? (68 Cities) ~----~~~~~=---r;~=~percentOfficer No. Officer Number Percent Officer Clerk Number Percent TABLE lo·-Who Conducts Prehearing Negotiations for ...... 4 (5.9) Clerk ...... ~. ., ...... 6 (8.8) = ... , ...... i the State? (68 Cities) tt"o' ...... 4 Cler~ ;n··~y··~;~~·~~ut~~··::··: o (0.0) Non·attorney prosecuto . . .. . o (0.0) Non.attorney prosecutor ...... ' .. (5.9) Non a ...... AttorneY'prosecutor ...... '" o Officer Attorney.pros~cutor ...... :::::::: ...... o (0.0) .....:::.: ...•...... 8 (11.8) (0.0) Attorney.pros~cutor Probation officer...... ' .. 6 Clerk NUmber1 Percent Probation officer ...... • 1 (1.5) Probation officer ...... 16 (23.5) (8.8) 50 (73.5) Judge ...... 9 (13.2) Judge ...... 18 (26.5) Non.attorney prosecutor . 1 Judge : ..... ~ffi~~~:;ju.~i~e...:...... Probation Officer/jUdge 1 (1.5) 3 (4.4) Probation officer/j.udge fl" r' ...... 7 (10.3) (1.5) Attorney·prosecutor ...... 31 (1.5) Probation b tion officer ...... Prosecutor/probation Officer ... . 1 Probation officer 10 Prosecutor/pro a ...... o (0.0) Prosecutor/probation 0 Ice ...... 3 (4.4) (1.5) (45.6) 2 (2.9) Prosecutor/judge ...... 5 Prosecutor/judge /'" ....b·~t·i·~~·· ~fficer. Prosecutor/judge . "b~ti~~'~fficer .. 3 (4.4) (7.4) JUdge '...... "...... 2? (14.7) d /prosecutor pro . 2 (2.9) 7 (10.3) JUdge/prosecutor/probation officer .. o (0.0) Probation Officer/jUdge 0 Judge/prosecutor/pro ation officer ... . ) (2.9) Ju ge t /probation officer ." o (0.0) o (0.0) I1 Clerk/prosecutor/probation officer... . o (0.0) Prosecutor/probation officer 8 (0.0) Clerk/prosecu or ...... Clerk/prosecutor/prob...... o Prosecutor/judge 1 No one. . ...•...... o (0.0) No one o (0.0) 1 No one ...... (0.0) (11.8) No response ...... 6 (8.8) No response 9 (13.2) No response ...... o (0.0) JUdge/prosecutor/probation officer 0 Total. 33 (1.5) Total ...... ' ...... 68 (100.0) Total 68 (100.00) 1 (48.5) Clerk/prosecutor/probation officer 0 68 (0.0) (100.0) No one...... 2 (0.0) No response 12 ------(2.9) Total 68 Reviews the Initial Detention Decision? (17.6) TABLE 2.-Who (68 Cities) (100.0) Officer II/ TABLE 8.-Who Represents the State at Pretrial Motions? Officer Number Percent (68 Cities) Clerk ...... 19 (27.9) Officer TABLE 1I.-Who May Request That a juvenile be Bound Clerk ...... 2 (2.9) o (0.0) Non·attorney prosecutor ...... Clerk NUmber Percent OVer? (68 Cities) Non·attorney prosecutor ...... o (0.0) AttorneY'prosecutor ...... :::...... 15 (22.1) ~ ...... Officer AttorneY'prosecutor ...... o (0.0) 23 (33.8) Non'attorney prosecutor ...... 0 (0.0) Probation officer .. ... :::.: .•....•...... Attorney·prosecutor Clerk NUmber Probation officer ...... " 16 (23.5) Judge ...... : ...... o (0.0) I 2 (2.9) Perce~ 52 ...... Judge...... ; ...... 39 (57.4) Probation officer/Judge .; ...... o (0.0) Probation Officer ...... (76.5) Non'attorney prosecutor. o (0.0) 3 Attorney·prosecutor . Probation officer/Judge;.... 7 (10.3) Prosecutor/probation officer ...::::::: 4 (5.9) I JUdge ...... (4.4) 2 (2.9) 0 Probation officer. Prosecutor/probation officer ...... 1 (1.5) o (0.0) i Probation officer/jUdge ...... (0.0) 32 (47.1) Prosecutor/judge ..... b~ti~~.~ffi~er .. I JUdge ...... (0.0) (0.0) 1 Prosecutor/probation officer ...... 0 3 Prosecutor/judge o o (0.0) (4.4) "b~ti~~" ~fficer. JUdge/prosecutto/r/p~~~ation officer .. 2 Probation officer/judge / rosecutor/pro . o (0.0) o (0.0) I Prosecutor/judge ...... (2.9) 5 (7.4) Judge p / bation officer... . Clerk/prosecu or '" ...... 0 o (0.0) No one ...... o (0.0) j, JUdge/prosecutor/probation officer .. (0.0) Prosecutor/probation officer ...... o (0.0) Clerk/prosecutor pro .. '" ...... 0 Prosecutor/jUdge. o (0.0) No response ...... " ...... 7 (10.3) Clerk/prosecutor/probation officer .• (0.0) 10 (14.7) No one ...... 0 5 No response "'" ' .. _... _.... + .••• 3 (4.4) Total ...... 68 (100.0) No one ...... (0.0) JUdge/prosecutor/probation Officer .. (7.4) 68 (100.0) No response ...... 4 (5.9) Clerk/prosecutor/probation officer .. 1 ______f No one ". (1.5) Tota~I~~::~~~~~~~~~ ! Total ...... 5 (7.4) o ...... 68 No response (0.0) (100.0) o (0.0) Total 10 resents the State at a Detention Reviews the Petition., f 0 r Legal Sufficiency? jI, ...... 68 (14.7) TABLE 3.-Who ~e:aring? (68 Cities) TABLE G.-Who (68 CO;,,) I (100.0) TABLE 9.-Who Represents the State at Probable Cause Officer Number Percent Officer NUmber Percent 1 Hearings? (68 Cities) ==______O_ff_ic_e_r ______o (0.0) Clerk ...... 7 ~I~~~att~·;~·~;~;~~·~c~t~~··:·:::::·:::::::::: 2 (2.9) Non·attorney prosecutor .. 1 (10.3) I Clerk ...... 26 (38.2) 25 (1.5) (, Non·attorney prosecutor ...... AttorneY'prosecutor ...... Attorney·prosecutor ...... Clerk Number (36.8),1-i.. AttorneY'prose ...... Percent Probation officer ...... : ...... 11 (16.2) Probation officer ...... ::.:: ...... 8 ~utor Judge...... d...... 1 (1.5) 11 (11.8) Probation officer ...... Non.attorney prosecutor ...... 0 (0.0) Probation officer/Ju ge .... . o (0.0) Judge : .. ~.;ffi~~~/j~d~;.:::::::: ...... o (16.2) JUdge ...... , ...... Attorney·prosecutor ...... 2 (2.9) (2.9) Probatlo b tion officer ...... , (0.0) Probation Officer/judge ...... Probation officer ...... 52 Prosecutor/probation officer .... :::: .... 2 Prosecutor/pro a ...... 3 (76.5) o (0.0) o (4.4) I Prosecutor/probation officer ...... Judge ...... 1 (1.5) Prosecutor/judge "'b~ti~~'~fficer .. Prosecutor/judge. ;~'b~t'i;~"officer .. (0.0) j Prosecutor/judge ...... 2 Judge/prosecutor/pro 'on officer... o (0.0) o Probation officer/judge ...... (2.9) JUdge/prosecutto)pProbation officer .. (0.0) ! JUdge/prosecutor/probation Officer .. 2 Clerk/prosecutor/probatl ...... o (0.0) Clerk/prosecu or ...... o Prosecutor/probation officer ...... (2.9) 2 Noone...... ::.: ...... 23 (33.8) No one ...... 7 Prosecutor/jUdge ...... (2.9) No response (::::l I ~~'~~~'~~~'~to,'.p:~~t;~~~ffl~~,: 0 3 (4.4) No response .... 6 JUdge/prosecutor/probation officer .. (0.0) 68 (100.0) Total ...... 68 (8.8) I No response ...... Clerk/prosecutor/probation Officer _. 0 (0.0) .. ~T~0~ta~I~·~··:·~·~·::~~~~~~~------102 (l00.~ I rota I ...... No one ...... 0 (0.0) No response ...... 1 (1.5) 1{'.'------6 Ie Total ...... (8.8) J.c; 68 (100.0) 103 N j I <,', j I II TABLE 13.-Who May Request Physical or Mental TABLE IS.-Who Can Move for Dismissal of a Filed II I Examination of the Juvenile? (68 Cities) 11 . " Petition? (68 Cities) II Officer Number Percent Officer Number Percent TABLE 19,-Who C onducts Examinaf Clerk ...... (0.0) (68 Cities) Ion of Witnesses? o CierI-: o (0.0) TABLE 22._Wh Non·attorney prosecutor. 1 (1.5) Non·attorney prosecutor ...... 1 (1.5) !I Officer o Represents th Pr e State in H b AttorneY'prosecutor 2 (2.9) Attorney·prosecutor . 30 (44.1) Clerk ...... NU;;~ oceec/in!:? (58 Cities) a eas COl'pus Probation officer ., ... 9 (13.2) Probation officer. '" ...... 3 (4.4) ___= Officer Non'attorney pro~~~l;t""""" ...... 0 -(0.0) Judge. 8 (11.8) Judge...... 1 (1.5) ill Attorney·prosecutor or...... 2 Clerk - NUmber P~ Probation officer/judge 8 (11.8) Probation officer/judge (0.0) PrObatioll Off' ...... 46 (2.9) o I',.! Icer " ...... ( Prosecutor/probation officer 17 (25.0) Prosecutor/probation officer 21 (30.9) JUdge ...... 2 67.6) Non.att~rn~yprose~utor 0 Attorn ey-prosecu t . 0 (QO) Prosecutor/judge ." 3 (4.4) Prosecutor/judge ...... 3 (4.4) VI! PrObation 2 (2.9) Offic~~;j~·ci~·....····...... Probation Officer or '" 49 , (0.0) (19.1) i Judge/prosecutor/probation officer. 13 Judge/prosecutor/probation officer .. 2 (2.9) I Prosecutor/probatio e.:...... 0 (2.9) JUdge _ .... 2 (72.1) Clerk/prosecutor/probation officer ., o (0.0) Clerk/prosecutor/probation offi::er . o (0.0) Prosecutor/JUdge n officer ...... 4 (0.0) Probation~;fi~~;;JUd -~. '" 0 (2.9) No one ...... """"""" o (0.0) Noone...... o (0.0) JUdge/prosecutor/ ...... ·····.. ·····.. 9 (5.9) (0.0) No response .. 7 (10.3) No response ... . 7 (10.3) C/erk/prosecutor/ ~~~batlon officer.. 0 (13.2) Prosecutor/prObation g ." 0 :rosecutor/jUdge .. ~f:/cer . 0 (0.0) Total ...... 68 (100.0) Total ...... 68 (100.0) I No one ...... p at/on officer.. 0 (0.0) (0.0) No response ...... 1 (0.0) lIdge/prosecutor/ ro '...... 0 Total ...... (1.5) C/erk/prosecuto / P batlon Officer 0 (0.0) ~."""".".". 2 (2.9) No one r probation officer 0 (0.0) TABLE 14.-Who Represents Petitioner in Consent TABLE 17.-Who Reprusents Petitioner at Adjudication ._- ..... " 68 (100.0) No resPon~~ 4 (0.0) Decrees? (68 Cities) Hearing? (68 Cities) Total.. .. 13 (5.9) TABLE 20.-Who Re - (19.1) commends D;sposT 68 Officer Number Percent Officer Number Percent (100.0) (68 Cities) I Ion to the JUdge? Clerk o (0.0) Clerk o (0.0) -= __ Officer Non·attorney prosecutor...... ,... 1 (1.5) Non·attorney prosecutor 1 (1.5) TABLE 23-Wh ber • 0 Presents th Attorney·prosecutor ...... 29 (42.6) Attorney·prosecutor .. 49 (72.1) Case ...... NU: Probation officer ...... 2 (2.9) Probation officer .' ...... 1 (1.5) 1 Ft~te~~tt~~~~y.~~~.~~~u.t~; P~ _____P_ro-;b:::a::ti..::.o:..:.n_v:..:i:O/~a~t;~on .. e(68 . ~n an Alleged Orney·prosecutor ...... 1 (0.0) < C/tres) Judge ...... 0 Judge...... ___ Officer ----:-:-_____ (0.0) o (0.0) Probation Officer ...... 6 (1.5) Probation officer/judge ...... "" 0 (0.0) Probation officer/judge ...... o (0.0) ! ~~dge :...... 41 (8.8) Clerk ---:-~=~=----~N~u~m~b~e~r_5percent- Prosecutor/probation officer ...... 5 (7.4) Prosecutor/probation officer ...... 4 (5.9) obatlon officer/jud e'" ...... 0 (60.3) Non.attorn~y ~r~S~~~to~'''''' .. .. 0 Prosecutor/judge ...... 0 (0.0) Prosecutor/judge ...... o (0.0) Attorney·prosecutor. ". 0 (0.0) Prosecutor/prObation g fi: .. ··...... 0 (0.0) Judge/prosecutor/probation officer .. 1 (1.5) Judge/prosecutor/probation officer (0.0) Probation Officer '" ". .. 21 (0.0) o Prosecutor/jUdge . 0 Icer ...... 17 (0.0) Clerk/prosecutor/probation officer.. 0 JUdge '. .' 24 (30.9) (0.0) Clerk/prosecutor/probation officer .. o (0.0) JUdge/prosecuto ' ...... :...... 0 (25.0) No one ...... 5 (7.4) No one ...... 5 (7.4) C/erk/prosecutor;/proba.tron Officer .. 0 (0.0) • ;rrObation Officer/jud~~" .... 0 (35.3) No response . . 25 (36.8) No response 8 (11.8) No one probation officer (0.0) osecutor/prob t· '.- 0 (0.0) Prosecutor/judgea Ion Officer. 19 (0.0) Total ...... 68 (100.0) Total ...... 68 (100.0) No respo'~~~""""""'''''''' ...... : ~ (0.0) Total ...... : ... ·· .. · .. ···· .. 2 (1.5) JUdge/prosecuto·· ." . 0 (27.9) C/erk/prosecutor;/proba.t/on Officer .. 0 (0.0) ...... (2.9) No one probatIon officer (0.0) TABLE 15.-Who Has Authority to Amend a Filed TABLE 18.-Who Represents Petitioner at Disposition? 68 (100.0) TABLE 21 W No respons~" .. g (O.Oj Petition? (68 Cities) (68 Cities) Total. . . -.. '" (0.0) .- ho Represents the ___ 4 (5.9) Officer Number Percent lH~~cer Number Percent 1- (68 Cities) Petitioner on Appeal? ------~~~~~68~ __~(~10~0~.0~~ Clerk 0 (0.0) Clerk ...... o (0.0) Officer Non·attorney prosecutor ...... 0 (0.0) Non·attorney prosecutor ...... 1 (1.5) Clerk ...... NUrnber ~ AttorneY'prosecutor ...... 15 (22.1) Attorney·prosecutor ...... 33 (48.5) Non·attorney prosecut...... --0 Probation officer ...... 4 (5.9) Probation officer ...... 6 (8.8) ;ttorney,prosecutor or ...... a (0.0) Judge ...... 31 (45.6) Judge ...... 0 (0.0) rObation Officer ...... 47 (0.0) Probation officer/judge ...... 1 (1.5) Probation officer/judge ,., ...... 0 (0.0) JUdge ...... 1 (69.1) Prosecutor/probation officer ...... 5 (7.4) Prosecutor/probation officer ...... 9 (13.2) Probati~·~.. ~;fi~~~;j~·ci~ .. ··· .. ·· .... : ...... ··.·:.. 0 (1.5) Prosecutor/judge ...... 3 (4.4) Prosecutor/judge ...... 0 (0.0) Prosecutor/prob • g ...... (0.0) Prosecutor/j'ud atlon officer ...... 0 (0.0) Judge/prosecutor/probation officer •• 5 (7.4) Judge/prosecutor/probation officer .• 0 (0.0) J ge ...... 2 Clerk/prosecutor/probation officer •• 0 (0.0) Clerk/prosecutor/probation officer.. 0 (0.0) Udge/prosecu 0 ...... 0 (2.9) (19.1) C/erk/prosecu/ ;/prObat;on officer'" 0 (0.0) No one ...... 0 (0.0) No one ...... 13 INo No response ...... 4 (5.9) No response ...... 6 (8.8) 1 one ...... ~~.~rObation officer :: 0 (0.0) Total .. 68 (100.0) No response ...... 4 (0.0) 68 (100.0) Total ...... Total ...... (59) 1 .H...... ::.:::.:: ~ (l(~g:~l 104

) 105 ------~A I

APPENDIX C /1jl

TABLE I.-Charges in the Boston Juvenile Court (1971) TABLE I.-Charges in the Boston Juvenile Court (1971) '/ TABLE 3·-Ba,·, -Continued Charges Number Percent Charges Number Percent 1 Assault and battery 83 (3.6) j 1< ;fI;~~-6-e~-~-.. _.".'IJ.~~o.~n<~~".~" ::71) Assault and battery Possession of firearm ...... 13 (0.6) (12.5) (dangerous weapon) ...... 80 (3.5) Possession of a dangerous weapon .. 11 (0.5) r $251 -250 ...... 138 -500 ...... 4 (22.4) Assault with intent to kill ...... 4 (0.2) Interfering with the MBTA ...... 1 ,I I. $501-850 ...... * (0.7) Carnal abuse ...... _...... 1 Soliciting ...... 2 :'; 1 $851-1 000 ...... 145 * • ...... 2 (23.6) Murder ...... 4 (0.2) Sale of drugs ...... 5 (0.2) 1 l. 1 $$1.000-2.500...... 106 (0.3) Rape ...... 5 (0.2) Unknown ...... 6 (0.3) 2.501-5000 ...... ct" ...... 58 (17.2) Armed robbery...... 57 (2.5) .p5.001_ 000 ...... '. Total ...... 2314 (99.6) 10 (9.4) Unarmed robbery ...... 85 (3.7) $10.000 m ...... 63 f 0; (10.2) Assault with intent to rob ...... 15 (0.6) r No data ore ...... 9 i ...... 8 (1.5) Extortion ...... 1 * TABLE 2.-Charges in the Boston Juvenile Court­ I Accessory before the fact ...... 3 (0.1) Representation by Private Retained Council (1971) . Total _. . ... "...... 5 (1.3) (0.8) Manslaughter ...... 1 I'j ...... * Percent· I .. · ...... 615~ Larceny in a building ...... 20 (0.9) I ~~ age of all Percent· Arson...... 9 (0.4) Cases age of 1). TABLE 4._p . Breaking and entering...... 189 (8.2) Num' ) osting of Bail b Charges ber Involving Total Destruction of property...... 19 (0.8) I I Amount Posted y Amount (1971) (N _ Retained Court Larceny and attempted larceny ...... 498 (21.5) ~ Not Posted - 610) a Counsel Caseload J Larceny frC'll a person ...... 167 (7.2) I $50 or less ---- Percent ~ N D I $51-250 .... ~...... 29 Umber Percent ~ ata Larceny from a motor vehicle ...... 10 (0.4) Assault and battery...... 10 (7.8) (3.6) I $251-500 ...... 87 (37.7) 35 NUmber -p-- ~Total Operating a motor vehicle without A ssau It an d b aerytt if' $ 501-1.000...... 75 (61 . 3) 34 (45 .5) 13 ercent NUmber Pe authority...... 144 (6.2) (dangerous weapon) .... 5 (3.9) (3.5) 11 $1.001-5.000.. ···...... 70 (51.7J 41 (23.9) 21 (16.8) 77 rcent Receiving stolen property...... 138 (6.0) Assault with intent to kill .. 1 (0.8) (0.2) $5000 ...... 96 (64.8) 27 (28.3) (14.8) (100.0) Trespassing ...... 34 (1.5) Murder ...... 1 (0.8) (0.2) ) • or more ...... 10 (79.3) (25.0) 29 (20.0) 142 (100.0) Uttering ...... 7 (0.3) Rape ...... 1 (0.8) (0.2) J: Total.. (58.8) ~ (5.0) ;~ (10.2) (100.0) Beating animals ...... 1 ;6; Armed robbery...... 3 (2.3) (2.5) 11./ .8 (5.9) 6 (15.7) 1"1 (100.0) Possession of counterfeit bills ...... 1 * Unarmed robbery...... 2 (1.5) (3.7) ai' Was set In (3 .c; (1 · '615 5.3) 17 00.0) Lewdness ...... 3 (0.1) Accessory before the fact 1 (0.8) (0.1) 99 (100.0) Disturbing a public assembly...... 5 (0.2) Manslaughter ...... 1 (0.8) i; I, TABLE 5.-0 610 caSes(99.2%) in h' (16.2) 610 ff Affray...... 4 (0.2) Breaking and entering ...... 6 (4,7) (8.2) J1i . enses for Which W Ich data on emOunt W (100.0) Disorderly condUct/disturbing peace 10 (0.4) Destruction of property.... 4 (3.1) (0.8) ere available. Drunkenness ...... 34 (1.5) Larceny...... 31 (24.4) (21.5) TABLE 5.-0f fens False alarm ...... 3 (0.1) Larceny from a person .... 13 (10.2) ( 7. 2) i' Offense N Percent es for Wh,'ch Ba,', W Glue sniffing ...... 4 (0.2) Operating motor vehicle 'I Umber of Ba,'1 Cont,'nued as Set (1971)_ Possession of drugs ...... 42 (1.8) WIt. h out au th'ton y ...... 7 (5 , 5) (6'I 2) ! A rmed rObbery..... Offenses Possession of marijuana ...... 3 (0.1) Receiving stolen property.. 9 (7.1) (6.0) 1 Unarmed robb ...... 22 Presence of drugs ...... 34 (1.5) Percent Trespassing ...... 2 (1.5) (1.!:1) f} Breaking and eery :...... 36 (2.5) Offense Percent Operating motor vehicle without Number of Total' Disturbing a public i Larceny... ntertng ...... 78 (3.7) of Bail a license ...... 44 (1.9) Court assembly...... 1 (0.8) (0.2) I·· larceny fro·;;,· .. ·· ...... · ...... ·... 73 (8.2) Operating Of:enses Operating motor vehicle to 0ndanger 14 (0.6) to a motor Vehicle Caseload Disorderly conduct ...... 2 (1.5) (0.4) 1. Operating a m ~ perso~.... 45 (21.5) Other motor vehicle violations ...... 31 (1.3) endanger ... . Drunkenness ...... 2 (1.5) (1.5) t .' Without aut~ 0: vehicle (7.2)· Other mot ...... Possession of burglars' tools ...... 54 (2.3) . ' or veh,cle 1 (0.2) False alarm ...... 2 (1.5) (0.1) . Receiving st I Ortty ...... 42 v,olations (0.6) Prostitution ...... 11 (0.5) Possession of drugs ...... 3 (2.3) (1.8) Runaway .. 0 en property.. 34 . (6.8) 1.1 (6.2) PosseSSion f·b .... ·...... 1 Runaway ...... 247 (10.7) (5.5) tools 0 Urglars' (0.2) Possession of marijuana.. 1 (0.8) (0.1) II StUbborn ch·ii ...... ·.... ··· .. ·... 130 (6.0) (1.3) Stubborn child ...... 60 (2.6) d (21.1) Presence of drugs ...... 1 (0.8) (1.5) IJ J!olarceny from a b·u·':/·d··':n..g· .... ·· 18 (10.7) ~nnaturai··~·~t··.- .. · .. ···· .... ···· 12 Threats ...... 4 (0.2) (2.9) (2.0) Operating motor vehicle ru k (2.6) resence of dru .~ ...... 1 (2.3) Truant ...... 35 (1.5) (1 .5) (1.9) i n enness .... 4 (0.7) (0.2) without license ...... 2. J' Wayw ...... 7 (0.9) Destruction of g ...... 7 (0.1) Wcyward child ...... 2 Prostitution ..... ,...... 1 (0.8) (0.5) j' ard child ...... D' t· property (1.1) * (1.1) 1 (1.5) Possession of a BB gun ...... 2 (1.5) IS urblng a pUblic ". (0.2) Runaway...... 4 (3.1) (10.7) If ~ Tres . 2 (0.3) aSSembly ... (0.8) Disorderly person ...... 19 (0.8) h'ld 1 (08) (2.6) J PClSsing .. less than -~)" Stubborn c I ...... (0:8) (1.5)·' [IAssault and b·...... ·.... 3 Operating a m t ...... · ...... · 1 Discharging firearm ...... (0.1) (0.2) tj 1 * Truant ...... 1 I A attery (0.5) Without a ,. 0 or vehicle (0.2) Possession of a hypodermic (1.5) P 'cense D·Isor d er Iy person ...... 6 (4.7) (0.8) ,'If s(sault and battery··· ...... • 9 (1.5) ossession of f' ...... 4 needle/syringe ...... 20 (0.9) (3.6) Po ./rearm (0.7) Breaking glass ...... 1 (0.8) (0.3) . rl, dangerous Weapo ) ssess,on of ...... 5 (1.9) Violation of park rules ...... 3 (0.1) P . f f' 1 (0.8) (0.6) 1 .,ssault w,'th ,'nt n .,., 21 Weapon a dangerous (0.8) ossesslOn 0 /rearm ...... ent t (3.4) (0.6) Breaking glass ...... 6 (0.3) Sale of drugs ...... 1 (0.8) (0.2) 1t "I'~rson "" 0 rOb.. 3 (3.5) (0.5) Interfering ';';iih"th~"MBTA' (0.7) Hitching ...... 1 * ------(9-9-.3-)---_--r'•. ;;ttering .....-.- .... .-...... 4 (0.6) i (0.5) Attempt to rescue a prisoner ...... (0.2) Total ...... 127 ,oss' ...... 4 (0.7) (0.2) il" 4 (0.4) PosseSSion of dr less than ~ f ess,on of marijua·~·~·... ·.·.· 3 (0.7) (0.3) Prostitution Ugs (0.1) 10 (1.6) (0.5) (1.8) 106 (0.1) Disorderly p~~;~~"'"'''''''''' 3 (0.5) AcceSsory b f ...... 2 (0.5) e ore the fact .. (0.3) t.. 1 1 (0.8) J 1 (0.2) "::11: •. 107 (0.1) TABLE 5.-0ffenses for Which Bail Was Set (1971)- TABLE B.-Offenses Represented by Private Retained Continued Attorney (1971) --'--.-,------TABLE 9 Percent Percent ·-Appea/s ;n the B Percent of Total of Total aston J Offense Number of Bail Court Offense Number Percent Court ---______-;::-::-~O:f:fe:n:s:e~(1971) UI/enile COUrt by Offenses Caseload Caseload Offense Appeals Taken Carnal abuse 1 (0.2) less than Assault and battery.. 10 (7.8) (3.6) (Not Withdrawn) (0.1) Assault and battery AssaUlt and batter ~ Total Possession of hypodermic (dangerous weapon) . 5 (3.9) (3.5) AssaUlt and bY"""""'" " ercent (d attery ...... 3 needle/syringe 2 (0.3) (0.9) Assault with intent to kill.. 1 (O.B) (0.2) Appeals A angerous weapon Soliciting 1 (0.2) less than Murder.""."." 1 (0.8) (0.2) rmed robbery. ) ...... ercent (0.1) Rape ..... 1 (0.8) (0.2) 5 (16.7) ~ Unarmed robber ...... (7.2) 6 Sale of drugs 4 (0.7) (0.2) Armed robbery. 3 (2.3) (2.5) Assault With I y '.. 3 ( 4 (6.9) Rape 2 (0.3) (0.2) Unarmed robbery. 2 (1.5) (3.7) Break' ntent to rob """", 9 4.3) (22.2) L 109 and entering .. 1 (13.0) 0 (0.0) 9 Manslaughter .. 1 (0.2) less than Accessory before the fact ,. 1 (0.8) (0.1) arceny '. . . (1 3 3 (10.3) (0.1) Manslaughter ...... 1 (0.8) less than Larceny fro' "". . '" ...... 5 .4) 0 (16.7) (3.4) Larceny f m a Person ...... 8 (7.2) 0 (0.0) 12 Larceny from a motor (0.1) rom a m t . . 11 (11.6) (0 1 (13.8) (0.7) (0.4) Breaking and entering .. ", 6 (4.7) Operating a 0 or. vehicle "'...... (15.9) 3 .0) vehicle 4 (8.2) 5 (1.1) Assault wi til intent to kill .. 2 (0.3) (0.2) Destruction of property... 4 (3.1) (0.8) With motor veh,cle ...... 1 1 (16.7) R ..out authority (1.4) (5.6) 11 (5.7) Unknown 6 (0.9) (0.3) Larceny...... " 31 (24.4) (21.5) eCelVlOg st I ' .. "". 0 12 (12.6) Larcency from a person... 13 (10.2) (7.2) Trespassing a en property." ...... 2 (0.0) (13.8) 615 (100.5) 1 Total Operating a motor vehicle ~isorderlY CO~duct ...... 6 ;;:;1 0 (1.1) without authority...... 7 (5.5) (6.2) poossession of drugs" """ "-".. 2 (2.9) 1 (0.0) 2 Receiving stolen property. 9 (7.1) (6.0) ssess/on of .' 1 (1 1 (5.6) (2.3) Operating marijuana 2 .4) 0 (5.6) 7 TABLE G.-Findings in Cases Where Bail Was Set (1971) Trespassing ... ,.,,,.,,.. 2 (1.5) (1.5) 3 (8.0) /j Disturbing a public with a ":Jator Vehicle 1 (2.9) 0 (0.0) (3.4) Bail Set Total Sample p Out a lIcense (1.4) (0 1 assembly . 1 (0.8) (0.2) assess/on of b ...... 1 0 (0.'00» 2 (1.1) Disorderly conduct 2 (1.5) (0.4) Runaway . Urglars' tOols (2.3) 1 Disposition Num· Per· NLlm· Per- ~ . 1 (1.4) 1 ber cent ber cent Drunkenness ...... 2 (1.5) (1.5) "tubborn chiid" (1.4) 0 (1.1) Truant "" 2 0 (0.0) False alarm ...... 2 (1.5) (0.1) 9 1 Delinquent .'" 318 (51.7) 854 (42.0) POssession"· .. ·;-·:· .... · ...... "." ...... 2 «22.'9» 1 (0.0) Possession of drugs ...... 3 (2.3) (1.8) 1 (1.1) 1 Not delinqUent .. . 41 (6.7) 132 (6.5) I 0, fl""'ar ...... 0 (5 6) Possession of marijuana.. 1 (0.8) (0.1) nterfer/ng With'~ m ...... (0.0) 0 ' 3 (1.1) Dismissed without No d t the MBTA ...... 1 1 (0.0) ! Presence of drugs ...... 1 (0.8) (1.5) 2 (3.4) a finding . 85 (13.8) 379 (18.7) Operating a motor vehicle' 1 (2.3) Filed without a finding 39 (6.3) 94 (4.6) without a license ...... 2 (1.5) (1.9) ~=~~.. i {til g IU! 1 (1.1) Bound over 40 (6.5) 76 (3.7) Prostitution ...... 1 (0.8) (0.5) 1 (1.1) Continued without --_._. (99.3) (0.0) (1.1) 'I Runaway...... 4 (3.1) (10.7) ~ '...... ~. 69~~io -____ 18 ~h~!1 a finding . 25 (4.1) 384 (19.0) . Stubborn child ...... 1 (0.8) (2.6) (100.3) (1.1) Restitution/court costs 0 (0.0) 7 (0.3) Truant ...... 1 (0.8) (1.5) 87 (99.2) Habitual truant. """" 0 (0.0) 14 (0.7) Disorderly pen;.on ...... 6 (4.7) (0.8) 1 No data 67 (10.9) 92 (4.5) Breaking giass ...... 1 to.S} (0.3) Possession of firearm ..... 1 I Total .' 615 (100.0) 2032 (100.0) (0.8) (0.6) j Sale of drugs ...... 1 (0,8) (0.2) I j Total ...... 127 (99.3) TABLE 7.-Dispositions in Cases Where Bail Was Set ! (1971) Bail Set Total Sample 1 - Disposition Num· Per· Num· Per· '·1 ber cent ber cent Probation .... "..... 73 (23.0) 302 (34.8) Suspended Sentence ProbatiC'n ...... 84 (26.4) 266 (30.6) Filed '" . 80 (25.2) 155 (17.9) Committed to D.Y.S... 68 (21.4) 95 (10.9) Other ...... ",.. 11 (3.4) 32 (3.7) No data. 2 (0.6) 18 (2.1) Total ...... 318 (100.0) 868 (100.0)

108

109 ,." ...: