THE MASSACHUSETTS JUVENILE TRANSFER STATUTE: JUSTICE FOR JUVENILE OFFENDERS?

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1 THE MASSACHUSETTS JUVENILE TRANSFER STATUTE: JUSTICE FOR JUVENILE OFFENDERS? I. INTRODUCTION If they are ing enough to commit meous crmes against society, they are big enough to be puntshed by society Detention may not help the juvenile, but it will certainly help his potential 'victms. 1 The civil rights movement of the past three decades produced a concern for the rights of the accused. 2 At the same time, however, statistics reporting criminal activity showed the rate of crime rising higher each year. 3 Highest amongst this increase was that of juvenile crime. 4 As a response to this alarming figure and in the interest of protecting the safety and welfare of the community, nearly every state has devised some procedure by which the recalcitrant juvenile or the juvenile charged with a particular serious crime can be brought into criminal court and tried as an adult. 5 A number of terms have been used to describe this process: "waiver" of juvenile court jurisdiction, "transfer" to criminal court, "certifica- 1. Shubow, Juveniles in Court: A Look at a System n Flux, 61 MASS. L. Q. 193 (1977). 2. See Brewer v. Williams, 430 U.S. 387 (1977); Furman v. Georgia, 408 U.S. 238 (1972); Katz v. United States, 389 U.S. 347 (1967); Mapp v. Ohio, 367 U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966); Mallory v. Hogan, 378 U.S. 1 (1964); Massiah v. United States, 377 U.S. 201 (1964); Wong Sun v. United States, 371 U.S. 471 (1963). 3. For an exhaustive compilation concerning the rate of crime m 1980 see U.S. DEPT OF JUST., SOURCEBOOK OF CRIMINAL JUSICE STATISTICS (1981). 4. From 1960 to 1975 there was a 293% increase in the number of arrests of children under age eighteen for murder, forcible rape, aggravated assault and robbery. In 1974, children under age eighteen also accounted for 23% of all those charged with rape, 34% of those charged with robbery, 57% of those charged with burglary, 38% of those charged with larceny, and 64% of those charged with motor velucle theft. Between 1969 and 1974, arrests of persons under eighteen years of age for murder rose 51%, and arrests for burglary rose 45%. Shubow, supra note 1, at See Whitebread & Beatey, Transfer Between Courts, 63 VA. L. REv. 221 (1977), for a discussion on the method each state uses to transfer jurisdiction over a juvenile from juvenile court to adult court. 483

2 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 tion" to stand trial as an adult, "removal" to criminal court, and "bind-over" from juvenile court to adult court. 6 Regardless of which term is used, however, all of these mechanisms invoke the issue of whether to relinquish juvenile court jurisdiction over a minor who is accused of committing a criminal act and transferring him to a court to stand trial as an adult. The consequences of being transferred are of enormous significance to a juvenile. When transferred, the juvenile forfeits his statutory rights and benefits which are afforded him in juvenile court. 7 In addition, if he is convicted, the juvenile will possess a criminal record for his entire life and faces the possibility of incarceration in a state or federal prison rather than a detention center Furthermore, if the state has a capital punishment statute the juvenile faces the prospect of being sentenced to death. 8 The main thrust of this note will center upon the Massachusetts transfer statute. 9 First, it will trace the history of this statute in light of the theories behind the development of the entire juvenile justice system in the United States. Secondly, the Supreme Court's decisions regarding transfer statutes will be analyzed. Lastly, this note will comment upon the Massachusetts transfer statute focusing on issues of: whether it meets the minimum requirements set by the United States Supreme Court; whether it meets the legislative purpose for which it was enacted; and whether it has helped to alleviate the problem of juvenile crime in the Commonwealth of Massachusetts. II. THE JUVENILE JUSTICE SYSTEM IN THE UNITED STATES The creation of the juvenile court system in America was part of a movement aimed at separating juvenile offenders from adult offenders and thus removing minors from the criminal law proc- 6. Comment, Juvenile Transfer sn Illinois, 67 J. GRiM. L. & CRimINOLOGY 287, 288 (1976) [hereinafter cited as Comment, Juvenile Transfer]. 7. Comment, Juvenile Transfer, supra note 6, at See 'nfra note 118 and accompanying text. 9. MASS. GEN. LAWS ANN. ch. 119, S 61 (West Supp. 1981).

3 19821 MASS. JUVENILE TRANSFER STATUTE ess.' 0 The historical justification for the development of a separate system of juvenile justice is often expressed in terms of the doctrine of parens patrae - the authority of the state to act as the role of parent when needed to protect both the person and the property of the state." In April of 1899, the Illinois legislature passed the Juvenile Court Act, 12 which created the first statewide court for children in Cook County, Illinois. Once the concept of a separate system for juveniles was conceived, the idea of juvenile courts spread rapidly ' 3 Behind this growth was the fundamental belief that the minor offender could be saved from a life of crime by firm and paternalistic guidance. 14 That feature of the juvenile justice system created the concept of rehabilitation rather than punishment. The early reformers believed that the role of the court was not to determine the child's innocence or guilt, but rather to ask: "[W]hat-he is, how has he become what he is and-what can best be done in his interest and in the interest of the state to save him from a downward career."' 5 Children were also to'be protected from the stigma of a criminal record, and hearings were to be held in informal and nonpublic 10. Mlymec, Juvenile Delinquent or Adult Convict, The Prosecutor's Choice, 14 AM. CRni L. REV. 29, 30 (1976). 11. The doctrine of parens patriae, literally translated, means parent of the country. The concept has its origins in feudal England where the king exercised the incident of wardship over an infant heir whose father had held land directly under the King. Clear, Peripheral Problems of Gault, 2 SuFFOLK U.L. REV. 81, 81 (1968). In the late nineteenth century when reform movements were calling for the more humane treatment of children, not only m criminal proceedings, but in all areas of society, the juvenile court system adopted the concept of parens patinae to justify a state's intervention on behalf of a child who was involved in crime. Id., see also Mack, The Juvenile Courts, 23 HARv. L. REV. 104 (1909). 12. Act of April 21, 1899, 1, Within twelve years, twenty-two states had followed Illinois' example and by 1925 all but two states had juvenile courts. By 1945, all of the states had enacted a juvenile court system. In 1970, there were 2662 juvenile courts in the United States. CHILDREN'S BUREAU, U.S. DEPT OF HEALTH, EDUC. AND WELFARE, JUVENILE COURT STATISTiCS (1970). 14. Mlymec, supra note 10, at In re Gault, 387 U.S. 1, 16 (1967).

4 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 surroundings. 16 Children were not to be detained with adults. 17 In general, the approach was to be paternal rather than punitive.', The new juvenile court proceedings were also defined as civil in nature,' 9 thus rendering many of the procedural safeguards of the Bill of Rights inapplicable. 20 The reason for the distinction between those rights given to adults and those given to children was "because juveniles could not be 'prosecuted' in the civil proceedings and, if adjudged juvenile delinquents, were subject to 'guardianship and protection' rather than 'punishment', they were not afforded due process protection." 2 ' Despite the philosophy of the juvenile court movement, state legislators have recently shifted their emphasis from protecting juvenile offenders against the inadequacies of the prison system to protecting the public from serious juvenile crime. In a recent study released by the Department of Justice, it was reported that between the years 1973 through 1977, juveniles committed 23% of the violent crimes against individuals in the United States. 2 2 Persons under 18 years old committed 8.2% of the rapes, 24.2% of the robberies, 17.8% of the aggravated assaults, and 30.4% of the personal larcenies such as purse snatchings and pickpockets during those years. 2 3 The study also revealed that juveniles had higher offense rates for personal crimes than did adults. 24 They were also more likely to commit crimes in groups or gangs of three or more offenders. 25 The seriousness and types of injuries associated with crimes committed by juvenile youthful offenders and adults were similar Mlymec, supra note 10, at Id. 18. Id. 19. Hendnckson & Lavner, Juvenile Justice, 1979 ANN. SuRvEy Am. L. 95, IM 21. Id. 22. U.S. DEPT OF JuSn., Advance for Release at 1 (Aug. 16, 1981). 23. Id 24. Id, 25. Id. 26. Id.

5 1982] MASS. JUVENILE TRANSFER STATUTE The response by various legislators to these statistics and the public's outcry for punishing an offending youth has been to create a mechanism whereby a child is transferred into the adult criminal system, thus rejecting the rehabilitative concept in favor of the punitive model. There are three types of transfer statutes which provide for the withdrawal of juvenile court jurisdiction, and instead emphasize the need for processing the juvenile in an adult court. The first such response is the "legislative waiver," whereby children over a certain age who are charged by the prosecutor with serious crimes are excluded from the jurisdiction of the juvenile courts. 27 The "prosecutor's choice" 28 is the second transfer invention, and pursuant to this concept the prosecutor is allowed to choose the forum in which to adjudicate the case. Under this procedure, it is possible that there will be two conflicting decisions over who has jurisdiction of a juvenile - one by the prosecutor who could elect juvenile court and one by a juvenile court judge who could transfer the juvenile to adult criminal court. 29 In states that do not have a "prosecutor's choice" statute, a prosecutor still holds the discretion concerning the decision of transfer, as he can charge the juvenile with a crime which will automatically grant adult criminal court jurisdiction over him. The third approach is the transfer by the juvenile court judge. 0 Under this type of transfer statute, the juvenile court is the traditional method for treating most juveniles, but it also contains a vehicle whereby certain juveniles can be tried as adults after individual scrutiny. This discretionary type of statute attempts to treat each juvenile on a case-by-case basis. Since juveniles are transferred on an individual basis, only those juveniles who cannot 27. Mlymec, supra note 10, at Id. 29. Id. Currently, six states and the District of Columbia allow the prosecutor to choose the forum, thereby augmenting their emsting judicial waiver statutes. Id. 30. The Massachusetts transfer statute is contained in MASS. GEN. LAws ANN. ch. 119, S 61 (West Supp. 1981).

6 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 be treated and rehabilitated m the juvenile justice system are tried as adults. The threat of treatment as an adult is always present, and as such, transfer theoretically serves to deter serious crimes and subsequent offenses. By using this statutory mechanism, the traditional rehabilitation and individual treatment goals upon which the juvenile system was founded are served because the individual child is retained in the jurisdiction of the juvenile court until good reason for transfer to adult court is shown. 31 III. THE SUPREME COURT'S REVIEW OF JUVENILE TRANSFER STATUTES In 1966, the question of the constitutionality of allowing judges the discretion to transfer juveniles was raised in Kent v. Unsted States. 3 2 The Kent case involved the construction of the District of Columbia waiver statute 3 which provided that a waiver must be preceded by a full investigation. 34 In Kent, the appellant was arrested for rape and burglary at the age of sixteen. 35 After being apprehended, Kent was taken to police headquarters where he was interrogated by the police and subsequently admitted his involvement in the offense. 6 The next 31. The power of the juvenile court judge to transfer ajuvenile is explained more fully at text accompanying supra note U.S. 541 (1966). 33. Id. at D.C. CODE ANN (1961) (current version at D.C. CODE ANN. S (Supp. IV 1965)) provided: If a child 16 years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by life imprisonment, the judge may, after a full investigation, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in conducting and disposing of such cases U.S. at 544. At age 14, Kent was apprehended as a result of several housebreakings and placed on probation in the custody of his mother. Id. 36. Id. at 543. Since these statements were elicited while Kent was subject to the jurisdiction of the juvenile court they were inadnussable at trial. D.C. CODE ANN. SS , (1961).

7 1982] MASS. JUVENILE TRANSFER STATUTE day he was further interrogated, and shortly thereafter counsel was retained for the boy by his mother. 3 7 Kent was detained at the receiving home for almost a week. 88 While there, he was neither arraigned nor was a determination made by a judicial officer as to the probable cause for his apprehension. 8 9 During the time of detention, Kent's lawyer filed a motion with the juvenile court for a hearing on the question of waiver of juvenile court jurisdiction, together with an affidavit of a psychiatrist certifying that Kent was a "victim of severe psychopathology" and recommending hospitalization for psychiatric observation. 40 Counsel also offered to prove that if Kent was given adequate treatment in a hospital under the guidance of the juvenile court, he would be a suitable subject for rehabilitation. 41 At that time Kent's attorney moved that the juvenile court should give him access to his client's social service file which had been accumulated during Kent's probation period,, and which would be available to the juvenile court judge in considering the question of waiver. 42 The juvenile court judge did not rule on these motions and never held a hearing nor conferred with Kent, his parents, or his counsel. 43 The judge entered an order reciting that after a "full investigation, I do hereby waive jurisdiction of the plaintiff, and directed that he be held for trial for the alleged offenses under the regular procedure of the United States District Court for the District of Columbia. ' 44 The judge made no findings nor gave any reasons for the waiver and he made no reference to the motions filed by Kent's attorney U.S. at d. 39. Id. at Id at Id. 42. Id. at Id 44. Id- 45. Id.

8 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 On appeal, the United States District Court denied the appellant's motion to dismiss the indictment because the statutory requirement of a full investigation had been complied with. 46 The court said " [w]ith reference to a full investigation, that does not mean a quasi-judicial or judicial hearing. No hearing is required." 47 The United States Supreme Court agreed with the lower court's determination that the statute contemplates giving considerable latitude to the juvenile court to determine whether it should retain jurisdiction over a child, subject only to the statutory delimitations. 48 The Court noted, however, that such discretion [D]oes not confer upon the Juvenile Court a license for arbitrary procedure. The statute does not permit the Juvenile Court to determine in isolation and without the participation or any representation of the child the critically important question of whether a child will be deprived of the special protections and provisions of the Juvenile Court Act. It does not authorize the Juvenile Court, in total disregard of a motion for hearing filed by counsel, and without any hearing or statement or reasons, to decide - as in this case - that the child will be taken from the Receiving Home for Children and transferred to jail along with adults, and that he will be exposed to the possibility of a death sentence instead of treatment for a maximum, in Kent's case, of five years, until he is Mr. Justice Fortas, writing for the majority, stated that the conclusions of the Supreme Court were based upon the statute m light of those principles mandated by the Constitution; the statutory scheme permitting waiver 50 assumes a procedure regularly suffi- 46. Id. at 549. In Green v. United States, 308 F.2d 303, 305 (D.C. Cir. 1962), the court defined what constitutes a "full investigation." It requires a "judgment in each case based upon the inquiry not only into the facts of the alleged offense but also into the question of whether the paren patinae of procedure is desirable and proper in this particular case." Id U.S. at Id. at Id 50. Id.

9 1982] MASS. JUVENILE TRANSFER STATUTE cient "to satisfy the basic requirements of due process and fairness... ",51 The Supreme Court questioned the ability of the juvenile courts to achieve the goals of treatment and rehabilitation and determined that the decision to transfer a juvenile offender from the jurisdiction of the juvenile court to the adult criminal justice system was a "critical decision", and thus certain procedural safeguards should be attached before jurisdiction could be waived. 52 Among the requirements to be followed are a full investigation by the juvenile court judge including a consideration of: 1) the severity of the alleged offense; 2) the degree of willfulness or violence involved; 3) the type of offense - whether against persons or property; 4) the prospective merit of the complaint; 5) the convenience of trying the defendants in one court if the juvenile's associates were adults; 6) the sophistication and maturity of the juvenile; 7) the juvenile's past record; and 8) the prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile by the use of procedure, services and facilities currently available by the Juvenile Court." The Court further required that the juvenile court afford the youth an opportunity for a hearing before the waiver of junsdiction. 5 4 Since this could be an informal procedure, the hearing does not have to conform to the standards of a criminal trial. 55 It must, however, measure up to the essentials of due process and fair treatment, and in addition, counsel for the youth must be allowed in a waiver proceeding to examine all the social files considered by the judge in making the transfer decision. 56 At the hearing, counsel is allowed to present evidence favorable to his client, and is also allowed to impeach social reports that are unfavorable to 51. Id. 52. Id. at I& at Id. at Id. at IM at 557.

10 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 the youth. 57 The Court also held that the juvenile court waiver had to be accompanied by a statement of reasons setting forth the basis of the court's decision to waive junsdiction. 58 While the statement need not be formal, at a minimum it must be sufficient to show that a full investigation had been conducted, and that there are reasons specific enough to insure that the youth had a meaningful review 59 The Court concluded that an adult criminal trial should be the exception rather than the rule because "the child receives the worst of both worlds - he gets neither the protections afforded to adults nor the solicitous care and regenerative treatment postulated for children. '60 The question of whether the petitioner was entitled to have counsel present at the waiver hearing was not raised by the Court since Kent's mother retained counsel prior to it. Yet, since the Court cited with approval Black v. United States, 61 it can be argued by implication that the Kent case did hold that a child is constitutionally entitled to be represented at the waiver hearing. The district court in Black held that counsel can "effectively assist in the determination of the waiver question by insisting upon the statutory command that waiver be ordered only after a full mvestigation and by guarding against action of the Juvenile Court beyond its discretionary authority"62 The District of Columbia Court of Appeals' reasoning for the requirement of counsel was based on the fact that convictions sustained in the district court are in sharp contrast with those at a juvenile court proceeding where the youth is not deemed a criminal and never suffers the loss of his civil rights. 63 While the holding of the Supreme Court in Kent was clearly based on the District of Columbia statute, the 57. Id. 58. Id. at Id. 60. Id. at F.2d 104 (D.C. Cir. 1965). 62. Id. at Id.

11 1982] MASS. JUVENILE TRANSFER STATUTE majority opinion implied that constitutional considerations may also be involved whenever jurisdiction over a juvenile offender passes from juvenile to adult criminal court. Mr. Justice Fortas had the occasion to addkess the constitutional rights of juveniles in writing for the majority in the landmark decision of In Re Gault. 64 The Court in Gault reversed the dismissal of a petition for a writ of habeas corpus filed by parents to secure the release of their 15-year-old son who had been committed as a juvenile to a state industrial school until he reached majority 65 Gault was taken into custody on the basis of a verbal complaint by a neighbor that he made an obscene telephone call. 6 At a hearing, Gault was found to be delinquent on the basis of admissions he had made to a police officer. 67 The complainant, however, was not present at that heanng. 6 8 Nevertheless, Gault was sentenced to the Arizona State Industrial School until he reached age Gault was never advised that he had a right to an attorney 70 nor that he had the right to remain silent, 7 1 nor was he advised that any statements he would make might be used against him. 7 2 The Court in Gault ruled that a juvenile adjudicative hearing must meet the requirements of due process and fair treatment as prescribed by the Due Process Clause of the Fourteenth Amendment. 73 In Gault, the majority compared a juvenile delinquency proceeding to a felony prosecution because in either adjudication a loss of liberty can result if an unfavorable decision is reached U.S. 1 (1967). 65. Id. at 4. Gault's case differed from Kent because if Gault had been convicted as an adult his most severe penalty would have been a fine of $5.00 to $50.00 dollars or imprisonment for not more than two months. But because he was convicted as a juvenile he was sentenced to six years in the state school. IM 66. Id. at IM at Id at Id. 70. Id at Id. 72. Id 73. Id. at Id at 36.

12 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 For this very reason, the Court said that a juvenile has the right to notice of the specific charges, 7 5 notice of the right to counsel, 6 the right to confront and cross-examine witnesses, 77 and notice of the privilege of self-incrmination. 7 8 As in the Kent case, the Supreme Court in Gault restricted the scope of its holding to the facts of the case. Nevertheless, the Court cited Kent as authority, even though the Gault decision focused on the adjudicative hearing itself and made no reference to pre- or post-adjudicative proceedings. Thus the holdings of Kent and Gault can be interpreted to require that the fourteenth amendment and the Bill of Rights be applied to all types of juvenile proceedings. 7 9 It was not until 1975 that the Supreme Court had the opportumty to review another juvenile transfer statute. In Breed v. Jones, 80 the Court determined that the prosecution of the respondent as an adult m the California Superior Court, after an adjudicatory finding in juvenile court that he had violated a criminal statute and a subsequent finding that he was unfit for treatment as a juvenile, violated the double jeopardy clause of the fifth amendment as applied to the states through the fourteenth amendment. 81 The Court's decision mandated that transfer proceedings be held prior to an adjudicatory hearing. 82 It was the opinion of the Court in Breed that because not all juveniles can benefit from the special features and programs of 75. Id. at Id. at Id. at Id. at See also In re Winship, 397 U.S. 358 (1970), where the United States Supreme Court held that: [Clonstitutional safeguard of proof beyond reasonable doubt is as much required during the adjudicatory stage of juvenile delinquency proceedings as are notice of the charges, right to counsel, rights of confrontation and examination, and the privilege of self-mcrmunation. Juveniles, like adults, are constitutionally entitled to proof beyond reasonable doubt when they are charged with a violation of crnimnal law. Id. at U.S. 519 (1975). 81. Id. at 531. This was not a case in which the judicial finding was one of probable cause but rather, an adjudication that the respondent had violated a criminal statute. 82. Id. at 541.

13 1982] MASS. JUVENILE TRANSFER STATUTE the juvenile court system, a procedure for transfer to an adult court should be available. 8 3 At the same time, however, the Court expressed the view that the only way to aid the objectives of those transfer statutes was to have the transfer hearing prior to adjudication. As the Court stated: We require only that, whatever the relevant criteria, and whatever the evidence demanded, a state court must deternune whether it wants to treat a juvenile within the juvenile court system before entering upon a proceeding that may result in an adjudication that he has violated a criminal law and in a substantial deprivation of liberty, rather than subject him to the expense, delay, and strain and embarrassment of two such proceedings. 8 4 In conclusion, it appears that the Supreme Court has mandated that a juvenile in a criminal proceeding must be afforded the same constitutional rights as adults are given in criminal court trials. IV. THE CREATION OF THE MASSACHUSETTS JUVENILE JUSTICE SYSTEM The creation of the Massachusetts system for the treatment and care of juvenile delinquents indicates that both its origin and evolution was the result of a series of complex factors and circumstances. 85 The development of the juvenile justice system focused primarily on a program for the juvenile offender rather than the immediate protection of society. 8 6 The program was designed "to reform character, not simply to protect society; to create model citizens, not simply to remove difficult members from the general body of society." Id. at I& at The juvenile justice system m Massachusetts was the first to address the issue of demstitutionalization. It was a model plan and other states m the country waited and watched to see the outcome. STATISTICAL AiALysis CENTER, MAss. Comm1T=EE ON CRmINAL JUSTICE, PUNISHING JUVELs: WHAT WORKs? 13 (1981). 86. J. WIRKALA, JUVENILE DELNQUENCY AND REFORm IN NINEmTENTH CENTURY MAssAHUSE s 252 (1973). 87. I&

14 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 During the past century, this theory has led to the establishment of four special juvenile courts within the Commonwealth - Boston, Springfield, Worcester and Bristol County In those districts not within the jurisdiction of the four juvenile courts, juvenile court is a separate session of the district court.a At the same time that the juvenile courts were created, 9 a statute was enacted setting forth the guidelines to be used m dealing with delinquent children. 90 The legislature intended that this act was to be liberally construed to the end that the care, custody and discipline of the children brought before the court shall approximate as nearly as possible that which they should receive from their parents, and that, as far as practicable they should be treated not as criminals, but as children in need of aid, encouragement and guidance. 9 1 Over the past twenty years, one section of this statute 92 has become the subject of intense controversy and litigation. The issue involved concerns the manner in which the courts should handle the serious juvenile offender, since oftentimes there appears a particular child with a hardened disposition and a pattern of criminal activity too sophisticated for the juvenile courts to handle. Another factor adding to this debate is the increase of crime, specifically violent crime, in the Commonwealth. 9 " 88. NAT'L CENTER FOR JUV. JUST., JUVENILE COURT ORGANIZATION AND STATUS OF- FENDERS: A STATUTORY PROFILE 13 (1974). 89. MASS. GEN. LAWS ANN. ch. 218, S 57 (West Supp. 1981) Mass. Acts ch. 413 (amended current version at MASS. GEN. LAWS ANN. ch. 119, SS 1-84 (West Supp. 1981)) Mass. Acts ch. 413, S 2 (amended current version at MASS. GEN. LAWS ANN. ch. 119, S 1 (West Supp. 1981)) Mass. Acts ch. 413, S 11 provided: If it shall be alleged in a complaint made under this act that a boy or girl has committed an offence against a law of the Commonwealth, or has violated a city ordinance or town by-law, and the court shall be of the opimon that his or her welfare, and the interests of the public require that he or she be tried for said offence or violation, instead of being dealt with as a delinquent child, the court may, after a hearing on said complaint order that it be dismissed. Criminal proceedings shall not be begun against any child between the ages of seven and fourteen, except for an offence punishable by death or imprisonment for life, unless proceedings against it have been begun and dismissed as aforesaid. 93. The latest statistical analysis compiled by the Massachusetts Department of Proba-

15 1982] MASS. JUVENILE TRANSFER STATUTE Massachusetts provides a statutory mechanism for juvenile transfer whereby the juvenile court is allowed to waive its jurisdiction over a juvenile case and transfer it to adult criminal court. 94 In Massachusetts, the process of transferring jurisdiction over a juvenile to adult court is commonly referred to as "bind-over", tion examined a random sample of 4169 juvenile delinquency cases heard over a three year period from 1978 through The probation department found that the volume of juvenile arraignments dropped over the three year sample period from 1575 arraignments in 1978 to 1456 in 1979 and 1139 in It was found that "24,958 delinquency cases were heard statewide in 1978, 22,552 juvenile delinquency cases were heard in 1979, indicating a decrease of 9.6%." MASs. GoVERNOR's JUv. JuST. ADVISORY COMMIEE, THE VIOLENT JUVENILE OFFENDER IN MAsSACHUSETTS: A POLICY ANALYSIS 16 (1981) [hereinafter cited as JJAC]. Although the actual number of arraignments for 1980 were not compiled by the release of tis report, a three week sample indicated a similar drop between 1979 and Id- In addition to these statistics, the probation department also tabulated the distribution of offenses according to category and determined that "property crimes represented the greatest frequency of offenses by juveniles, accounting for almost half (47.9%) of the crimes committed by juveniles in the combined three year sample." Id. at 18. Crimes against people accounted for 13.7% of all juvenile delinquency arraignments for this period. Id. The Department of Probation made it clear that "contrary to the belief that juvenile offenses are typically violent, the data indicates that juveniles are more often charged with property crimes than crimes against the person." Id. (citing M. Brown-Roy, Juvenile Defendants in Massachusetts: Patterns of Delinquency Charges ( ) at 5 (prepared for Massachusetts Commissioner of Probation, Nov. 18, 1980)). The FBI's Uniform Crime report which records the annual number of juvenile arrests by offense category indicates that over the past five years the total number of serious juvenile arrests decreased 1.2% for the years 1977 through Id. However, the total number of violent juvenile arrests has risen by approximately 25% during the three years of the study. MASS. GoVEiNoR's TASK FORCE ON JUVENILE CRmE, A REPORT 2 (1981) [hereinafter cited as TASK FORCE]. The violent crimes which have increased include homicide, rape, robbery, aggravated and simple assault, and arson. Id. at 19. The only two categories, however, which have exhibited a prominent and consistent increase are forcible rape and aggravated assault. Id, at 21. Both have risen steadily during the last several years, with an increase of 20.6% and 12.2% respectively from 1978 through Id. It must be noted that while there has been a 25% increase in violent crimes, the juvenile population has progressively declined during the years under the study. Specifically, in 1977 there were 1,611,000 juveniles in the "Bay State," while in 1978 the total was 1,565,000 and in 1979 the figure dropped to 1,516,000. Thus the juvenile population has decreased by 95,000 over the past three years. Id. at 2-3. In summary, the actual number of violent juvenile delinquents has risen since 1977, while property crime arrests have slightly decreased during the three years under study. A review of juvenile delinquency rates shows that more juveniles are being arrested each year even though the juvenile population has been decreasing. Id. 94. MASs. GEN. LAWS ANN. ch. 119, S 61 (West Supp. 1981). See supra note 31 and accompanying text for a more complete discussion of this method of transfer.

16 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 since such juveniles are "bound-over" to the grand jury for criminal indictment. The Governor's Juvenile Justice Advisory Committee recently stated that by providing a waiver option, the juvenile court is given a 'safety valve' to carefully weed out the unusually grave cases for which expenditure of resources within the juvenile system would be meffective and inappropriate. This in turn preserves the credibility of the juvenile court's ability to effectively handle the vast majority of delinquent youths within its jursdiction. 95 Presumably, bind-over is chosen as an alternative because the judge determines that a restriction on the juvenile's liberty which is greater in extent or longer m duration than is available in the juvenile justice system, is necessary. 96 V CASE LAW CONCERNING THE MASSACHUSETTS TRANSFER STATUTE Although the Massachusetts transfer statute was enacted in 1906, no significant cases were 97 brought before the Massachusetts courts until the time of the United States Supreme Court's decision in Kent v. United StatesY 8 That case was cited by the supreme judicial court in its decision in the case of Commonwealth v. Martin. 99 In Martin, the supreme judicial court determined that the defendant did not have a constitutional right to examine that part of his probation report contaimng Information about the defendant gathered from himself, his former employers, and 95. JJAC, supra note 93, at M. Brown-Roy, Juvenile Bindovers in Massachusetts: 1979 at 4 (prepared for Massachusetts Department of Probation, Dec. 15, 1980) [hereinafter cited as Brown-Roy]. 97. One case of lesser importance was Metcalf v. Commonwealth, 338 Mass. 648, 652, 156 N.E.2d 649, 653 (1959), where the Massachusetts Supreme Judicial Court held that even though the indictment charged the defendant with first-degree murder, his acceptance of a plea to second-degree defined Ins offense as non-capital and therefore since he was fourteen, the superior court lacked jurisdiction over him and his case had to be sent back to the juvenile court for further proceedings U.S. 541 (1966). See supra notes and accompanying text Mass. 296, 244 N.E.2d 303 (1968).

17 1982] MASS. JUVENILE TRANSFER STATUTE others. 00 The defendant contended that the Kent decision afforded him a constitutional right of access to that report.' 0 ' The court disagreed and held that the United States Supreme Court's decision in Kent' 02 did not lay down a blanket constitutional right of access since "that decision, as the Court in a later opinion pointed out, 'turned upon the language of the statute.' "08 A more important issue arose in CommonweaUh v. A Juvenile. 0 4 In that case, a sixteen year old male was charged with being a delinquent child by "reason of acts of armed robbery and assault and battery by means of a dangerous weapon."' 01 5 The defendant was arrested and the juvenile court held a hearing on the complaint. After hearing the merits, the judge dismissed the juvenile complaint and ordered that the juvenile be tried as an adult. 06 The judge found, pursuant to the terms of the statute, 0 7 that" 'the interest of the public requires that... the defendant... shall be tried for the said offense.' "108 The defendant's counsel on appeal alleged that the judge's finding was not supported by a statement in writing of the reasons or considerations as required by Rule 85 of the Rules of the District Court The motion was denied and the defendant was bound over to the superior court for grand jury 100. Id. at 298, 244 N.E.2d at Id. at 300, 244 N.E.2d at See supra notes and accompanying text Mass. at 301, 244 N.E.2d at 306 (citing Gault v. United States, 387 U.S. at 12) Mass. 640, 296 N.E.2d 194 (1973) Id. at 640, 296 N.E.2d at Id. at 642, 296 N.E.2d at This case was based upon MAss. GEN. LAWS. ANN. ch. 119, S 61 (West) as amended by 1964 Mass. Acts ch. 308, S 2 which reads: If it be alleged in a complaint made under sections fifty-two to sixty-three, inclusive, that a child has committed an offense against the law of the Commonwealth, or has violated a city ordinance or town by-law, and if such alleged offense or violation was committed while the child was between his fourteenth and seventeenth birthday, and if the court is of the opimon that the interests of the public require that he should be tried for said offense or violation, instead of being dealt with as a delinquent child, the court may, after a hearing on said complaint order it dismissed Mass. at 641, 296 N.E.2d at The court applied Rule 85 of the Rules of the District Court, which provided in part: In every state where the court shall determine that a child should be tried for said

18 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 proceedings. 110 He was later indicted for armed robbery and assault and battery with a dangerous weapon."' In the superior court, the defendant's attorney moved to dismiss the indictment." 2 The judge ruled that "taken as a whole,1 3 the course of proceedings in the juvenile court - the blanket finding as to the interest of the public without supporting reasons of consideration under a statute laying down no further standards - deprived the defendant of due process of law,114 The fourteenth amendment issue raised in the superior court was rejected on appeal by the supreme judicial court, which maintained that the case raised no constitutional issue." 5 Relying on what was decided in Commonwealth v. Martn, 1 however, the supreme judicial court determined that on the facts of the case "the proper administration of criminal justice requires that the defendant be now afforded an opportunity in the juvenile court to establish that he should be treated as a child rather than as an adult.""1 7 The supreme judicial court ordered the indictments dismissed and directed the superior court to remand the case to the juvenile court to proceed in accordance with the statute and the Rules of the District Court as amended." 8 While the issue of notice was offense or violation, instead of being dealt with as a wayward or delinquent child, such child shall be represented by counsel. Such deterrmnation shall be accompanied by a finding in writing of the reasons or considerations thereof Mass. at 641, 296 N.E.2d at Id Id During the first proceeding the defendant's attorney had also requested a continuance on the ground that he had not received prior notice that the subject of dismissal would be determined at the same time as the hearing on the merits. Id Mass. at 641, 296 N.E.2d at Id Id., see supra notes Mass. at 641, 296 N.E.2d at Id. at 642, 296 N.E.2d at 196. Pending the present appeal, the Rules of the District Court were amended and Rule 85A of the Rules of the District Court of Massachusetts provided that the question of dismissing a juvenile complaint and trying the juvenile as an adult would be determined in a separate hearing, with a continuance if requested. The Rules also set forth the factors to be considered by the judge in deciding whether the public interest requires dismissal and further provides that any finding of probable cause after

19 1982] MASS. JUVENILE TRANSFER STATUTE never discussed by the supreme judicial court m Mart&n, 119 the court did address this issue and others in the case of In Re A Juvenile. 20 In that action for a writ of habeas corpus, the petitioner was found guilty and sentenced m the district court on a complaint which was issued following the dismissal of the juvenile proceedings against him. 21 He was charged as a juvenile with being a delinquent child "in that he did attempt larceny of a motor vehicle."'1 22 A hearing was held in the juvenile session where all the evidence was received from both prosecution and defense witnesses. 2 After all the evidence was heard and the parties had an opportunity to cross-examine the witnesses, the judge found sufficient evidence to warrant a finding of delinquency 124 The judge then requested the probation report, and after hearing the report and examming the petitioner's record, the judge found that "the petitioner was not a fit subject for commitment"' 2 5 to the Youth Service Board and dismissed the complaint. 26 On that same date an adult complaint was issued 27 and a trial was held before the same judge who had dismissed the complaint and the petitioner was found guilty ' 28 On appeal, the petitioner raised four issues. First, he claimed that on "dismissal of the juvenile complaint under Mass. Gen. Laws Ann. ch. 119, 61, the district court had no jurisdiction to try him because Mass. Gen. Laws Ann. ch. 119, 75 as appearing in St. 1964, ch. 308, 7 ' 29 the dismissal shall be made by a judge other than the one who heard the juvenile complaint, unless the child waives the probable cause hearng. Rule 85A of the Rules of the District Court (superseded by Rule 208 of the Special Rules of the District Court of Massachusetts) See supra notes Mass. 531, 306 N.E.2d 822 (1974) Id. at 534, 306 N.E.2d at Id. at 533, 306 N.E.2d at Id Id Id Id Id. at 534, 306 N.E.2d at Id Id. at 532, 306 N.E.2d at Mass. Acts ch. 308, ' 7 (repealed by 1975 Mass. Acts ch. 840, S 2A) provided in part:

20 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 provides that any trial, after dismissal of juvenile proceedings, must take place, if at all, in the superior court. 130 Second, he also argued that the juvenile transfer statute, Mass. Gen. Laws Ann. ch. 119, section 61 was unconstitutionally vague and overbroad Third, the petitioner claimed that when a juvenile complaint has been disnmssed after a hearing, any subsequent trial on the same charge constitutes double jeopardy and is therefore unconstitutional. 132 Fourth, the petitioner contended that although he had adequate notice of the juvenile charge hearing, he did not have adequate notice that juvenile jurisdiction might be declined and an adult complaint sworn out. 38 In addressing the first issue, the supreme judicial court ruled that the district court, subsequent to a dismissal of the juvenile proceeding, did lack the jurisdiction to try the petitioner on the adult complaint. 34 Any subsequent trial, the court held, had to take place in the superior court in accordance with Mass. Gen. Laws Ann. ch. 119, section 75 as appearing in St. 1964, ch. 308, section The court further concluded that the provision of the statute wich stated that "the court shall commit him or bind him over to trial in the superior court to the usual course of criminal proceedings" ' 3 6 was concerned with a hearing on probable cause and not a trial on the merits. 37 The court ruled, therefore, that after a juvenile complaint has been dismissed and an adult complaint has been issued, the only function of a district court is to If, under section sixty-one or seventy-two A, the court orders that a delinquency complaint against a person be dismissed, the court shall forthwith cause a criminal complaint to be issued against such person for the alleged violation, cause such complaint to be subscribed by the complainant, and examne on oath the complainant and the witnesses produced by him; and if the person appears to be guilty of the offense or violation, the court shall commit hun or bind lum over for trial in the superior court according to the usual course of crnunal proceedings Mass. at 532, 306 N.E.2d at Id. See supra note Mass. at 532, 306 N.E.2d at Id. at 533, 306 N.E.2d at Id. at 534, 306 N.E.2d at Id. See supra note Mass. at 535, 306 N.E.2d at Id.

21 1982] MASS. JUVENILE TRANSFER STATUTE hold a probable cause hearing and to make an appropriate determination concerning bail if the defendant appears guilty 138 In light of the lack of jurisdiction of the district court to try the juvenile on the adult complaint, the supreme judicial court ordered the petitioner discharged from the custody of the Commonwealth. 3 9 The supreme judicial court, however, found it appropriate to comment upon the petitioner's other contentions because of the uncertain nature of future proceedings. 40 Addressing the issue of whether the standard for transfer is unconstitutionally vague and overbroad, the supreme judicial court stated: [I]n any case where the judicial function is analogous to sentencing, because the particular crime and the record and background of the accused must be given special attention, individual consideration and treatment are inherent in the decisional process. Standards are not constitutionally required in statutes granting judges discretion as to the sentence to be imposed.' 4 ' With respect to the petitioner's claim of double jeopardy, the court decided that since it had already been determined that the district court lacked the proper jurisdiction to try the petitioner on an adult complaint, the issue was therefore moot. 42 Nevertheless, the court did continue with an analysis of the double jeopardy clause with respect to the Commonwealth's transfer statute because of the importance which that issue may have in light of the state's need to transfer juveniles in the future.1 43 After a thorough analysis of the statute, the supreme judicial court found that double jeopardy attaches when a juvenile proceeding commences because even though no adult complaint is issued, there are substantial restraints which may be imposed on the juvenile on a finding of delinquency '44 Furthermore, the court stated that 138. Id. at 536, 306 N.E.2d at Id Id Id. at 538, 306 N.E.2d at Id. at 539, 306 N.E.2d at Id Id. at 541, 306 N.E.2d at 829.

22 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 "the dismissal of a juvenile complaint and the issuance of ail adult complaint are contemplated by statute to be in effect one event, and, as such, any jeopardy to which a juvenile was initially subjected under the juvenile complaint continues under the adult complaint."' 1 45 Thus, there is the concept of a single, continuing jeopardy for the transfer of a minor for criminal prosecution. 146 Therefore, the court concluded that the constitutional right of the accused not to be tried twice was not violated. 47 Commenting upon the notice issue, the supreme judicial court rejected the petitioner's contention that adequate notice that the juvenile complaint may be dismissed was never given. 148 The court relied on its decision in Commonwealth v. A Juvenile, 149 and held that the question of dismissal might be addressed at the same time delinquency status was determined, "for the terms of the statute itself, fairly read, gave the warning of that probability,,50 The notice requirement was addressed again in Commonwealth v. Frankhn. 15 ' The supreme judicial court reaffirmed its decisions in Commonwealth v. A Juvenile 52 and In Re A Juvenile' 5 " and held that the petitioner was not denied his constitutional rights by the fact that he was not provided with formal notice that, at a certain hearing, the issue of dismissal would be contemplated. 54 The defendant in Franklqn also alleged that the lack of a statement of reasons for the juvenile court's waiver of jurisdiction was violative of the Due Process Clause of the Fourteenth Amendment. 155 The court reiterated its decision from Commonwealth v Id Id. This theory was held invalid by the Supreme Court in their decision in Breed v. Jones, 421 U.S. 519 (1975), as the Court rejected the notion that juvenile and adult proceedings constituted a single "continuing jeopardy." 421 U.S. at 538 n.19. See supra notes and accompanying text Mass. at 541, 306 N.E.2d at Id. at 543, 306 N.E.2d at Mass. 640, 296 N.E.2d 194 (1973) Mass. at 543, 306 N.E.2d at Mass. 284, 318 N.E.2d 469 (1974) See supra notes and accompanying text See supra notes and accompanying text Mass. at 287, 318 N.E.2d at Id.

23 1982] MASS. JUVENILE TRANSFER STATUTE Roberts' 56 that " 'no constitutional rights of the defendant were violated by the failure of the Boston Juvenile Court judge to file a written statement of his findings and reasons for dismssmg the juvenile complaint.' ",157 In Commowealth v. White (No. 1)168 the supreme judicial court had another opportunity to discuss the problems raised by the failure of the juvenile court judge to issue written reasons for the transfer of jurisdiction. 159 In superior court, the defendant made a motion to disnuss the indictment because of the alleged irregularities in the juvenile court proceedings and in particular, that the juvenile court judge never made a finding in writing of his reasons or considerations for dismissing the juvenile complaint. 160 The superior court denied the motion and ruled that "the juvenile court judge was not required to make extensive findings in order to show the basis for his conclusions he was not required to elaborate in more details the reasons for his conclusions.' 161 The supreme judicial court agreed with the superior court that the Rules of the District Court did not apply to the Boston Juvenile Court as the juvenile court as "established by St. 1906, ch. 489, section I is not one of the district courts listed in Mass. Gen. Laws Ann. ch Specifically, the supreme judicial court maintained that the Rule of the District Court providing that the determination that a child be tried as an adult shall Mass. 357, 285 N.E.2d 919 (1972) Mass. at 287, 318 N.E.2d at 472 (citing 362 Mass. at , 285 N.E.2d at 926) Mass. 301, 311 N.E.2d 543 (1974) Id. at 302, 311 N.E.2d at Id. at 303, 311 N.E.2d at 544. The defendant, age fifteen years and eleven months, was arrested and two days later appeared in Boston Juvenile Court accompanied by his mother and attorney. After three hearings in that court, the juvenile complaints were dismissed and criminal complaints were issued. The judge found probable cause and the defendant was later indicted for fourteen offenses, including- armed robbery; assault with intent to rob; assault with intent to commit murder; larceny from the person; and violation of the narcotic drug laws. Id. at 302, 311 N.E.2d at The defendant cited Rule 85 of the Rules of the District Court. The defendant's hearing was held in 1971, two years before Rule 85A of the Rules of the District Court became effective. 362 Mass. at 302, 311 N.E.2d at 544. See supra notes 102 through N.E.2d at 305, 311 N.E.2d at 545.

24 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 be accompanied by a finding of the reasons or considerations, did not apply to cases held in the Boston Juvenile Court. 163 One year after White (No. 1), another case challenging the Massachusetts transfer statute was heard before the supreme judicial court. In Stokes v. Commonwealth, 64 the court had its first opportunity to address the issue of double jeopardy in light of the United States Supreme Court's decision in Breed v. Jones. 165 Although the supreme judicial court held that the decision in Breed was not meant to be applied retroactively, 166 it maintained that even if it was, the petitioner was not subjected to double jeopardy on the particular facts of that case. 67 The supreme judicial court noted that there were significant distinctions between the statute involved in Breed and the one applied to Stokes. 68 In the juvenile delinquency proceeding in Breed, the juvenile was actually adjudicated a violator of the Califorma state laws and the transfer of jurisdiction to the superior court was one of the many alternative dispositions that were available to the juvenile court judge. 69 In Stokes' hearing, no adjudication of delinquency preceded the transfer of jurisdiction of the petitioner to the superior court Id. at 306, 311 N.E.2d at Mass. 754, 336 N.E.2d 735 (1975) See supra notes In a later case, Commonwealth v. Clark, 1980 Mass. Adv. Sh. 237,239,400 N.E.2d 251, 253 (1980), the supreme judicial court held Breed inapplicable to juvenile proceedings prior to the date of that decision and that Breed was not to be applied retroactively. In Commonwealth v. A Juvenile (No.2), 370 Mass. 677, 683, 351 N.E.2d 521, 525 (1976), the court held that the date of the juvenile hearing deterrmned the applicability of Breed. This rule was reaffirmed in Commonwealth v. A Juvenile, 272 Mass. 38, 360 N.E.2d 324 (1977). The court did take notice of the rule suggested in Jackson v. Justices of Superior Court, 549 F.2d 215, 220 (1st Cir. 1976), cert. denied, 430 U.S. 975 (1977), whereby Breed would be applied retroactively to those cases where the state obtained some advantage or benefit from disclosure made by the defendant at the hearing on the juvenile complaint. The supreme judicial court stated that even if they were to apply this principle, it would not be applicable to this defendant because the defendant presented no evidence, called no witnesses and made no inculpatory statements from which the Commonwealth could have benefited Mass. Adv. Sh. at 243, 400 N.E.2d at Mass. at 760, 336 N.E.2d at Id Id Id. at 761, 336 N.E.2d at 739.

25 1982] MASS. JUVENILE TRANSFER STATUTE Furthermore, the Massachusetts Supreme Judicial Court concluded that despite the United States Supreme Court's ruling, it still allowed the introduction of evidence at the transfer hearing, indicating that the juvenile committed the offense in question. 71 Therefore, the effect in Breed of prohibiting trials in the superior court of those individuals who have previously been subject to adjudicatory juvenile delinquency proceeding in the juvenile, district or municipal courts, never occurred in Stokes The supreme judicial court concluded that the United States Supreme Court found it significant that the juvenile proceeding in Breed was "not one in which the juvenile determination was simply a finding of probable cause but was instead an adjudication that the respondent had violated a criminal statute."' 73 This adjudication on the facts differs from Stokes' hearing which was termed a "Probable Cause Heanng."' 17 4 After a thorough analysis of the United States Supreme Court's holding in Breed, the Massachusetts Supreme Judicial Court found that the result of Breed was far less sweeping than was previously imagined.' 75 This was because "Breed [did] not prohibit double proceedings, that is, a juvenile proceeding followed by an adult trial, it merely require[d] that if there are two proceedings the 171. Id. at 762, 336 N.E.2d at 740 (citing Breed, 421 U.S. at ) Id Id Id Id. Shortly after Breed was decided, the Cief Justice of the District Courts altered, by a memorandum directive, Rule 85A of the Rules of the District Courts to require a municipal court judge to make clear at the onset of the proceedings that he intends at that time to conduct only a transfer hearing, and that any adjudicatory hearing would follow only in the event it was decided to treat the petitioner as a juvenile delinquent. Furthermore, the memorandum directive also required that if the transfer is rejected a different judge must preside at the adjudicatory hearing. Id. In Corey v. Commonwealth, 364 Mass. 137,141 n.7, 301 N.E.2d 450, 455 n.7 (1973), the supreme judicial court discussed the problems which might arse from a judge's failure to state in advance the purpose of the hearing which could either be a hearing on the merits of the complaint or merely a probable cause hearing. The court stated that "to avoid such a problem, a district court judge should announce, before the hearing commences, whether he is conducting a probable cause hearing or a full trial on the merits." Id.

26 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 first must be limited to the question of transfer."' 17 6 The supreme judicial court held that the Commonwealth now complies with the requirements set down by the Supreme Court as Rule 85A, as now modified, requires the following sequence: If the court, before the hearing on the juvenile complaint, deems necessary a consideration of whether to dismiss the juvenile complaint and try the child as an adult for the offense, the court shall, subject to a continuance if requested by the child, proceed to hold a separate hearing on this question.1 77 In effect, what the court said was that the transfer hearing was a preliminary proceeding to be followed by either a probable cause hearing on the adult complaint or a juvenile court trial on the delinquency complaint, depending on the result of the transfer hearing. In 1976, a major decision was handed down by the Massachusetts Supreme Judicial Court outlining transfer hearing guidelines to be followed by both the juvenile and district courts in the Commonwealth. In A Juvenile v. Commonwealth, 7 8 the plaintiff filed a petition for relief in the nature of certiorari and claimed that a nonadjudicatory transfer hearing held prior to a hearing on the merits of the juvenile complaint conflicted with the statutory re Mass. at 765, 336 N.E.2d at Id. Amended Rule 85A of the Rules of the District Court was further amended on May 10, 1976, effective June 1, 1976 and became Rule 208 of the Special Rules of the District Court. Rule 208 established procedure to be followed in all transfer hearings that occur within a juvenile session of a district court under MASs. GEN. LAWS ANN. ch. 119, S 61. (West Supp. 1981). The rule provides that the court will hold a transfer hearing upon a request by the commonwealth or if it wishes, upon its own motion, whenever either condition, "a" or "b" of the first paragraph of the transfer statute is met, whether or not the condition is alleged in the complaint. A request by the commonwealth for a transfer hearing must be filed in writing with the clerk's office no later than seven days after arraignment. The court must conduct a transfer hearing on its own order where condition "b" in the statute is met and the offense charged is one punishable by life imprisonment if committed by an adult. Notice of the transfer hearing must be given to the juvenile and to his/her parents or guardian at least seven days prior to the hearing. If after the hearing, the court decides to dismiss the delinquency complaint, it must make written findings and a written order Mass. 272, 347 N.E.2d 677 (1976).

27 1982] MASS. JUVENILE TRANSFER STATUTE qirements; that his constitutional rights were violated by the transfer hearing held in the district court; and that the decision to dismiss the juvenile complaint was not required by "the public interest." 7 9 It was the opinion of the supreme judicial court that although no error had occurred in the case in light of the law existing at the time of the proceeding, 180 in the best interests of justice the case should be remanded for a new hearing to include a consideration of both transfer and probable cause."" 1 The court rationalized that the district court judge's task was complicated by the fact that the statutes, rules of court, and case law relating to transfer hearings were in a state of inconsistency, and therefore it was appropriate for the transfer decision to be redetermmed in accordance with newly enacted legislation. 82 In addition, the court stated that even though they granted the relief sought by the plaintiff, a discussion of the alleged errors argued by him was warranted in determining the rights of other juveniles similarly situated in the intervening period between Breed and the 1975 amendment to Mass. Gen. Laws Ann. ch. 119, section The first issue the court confronted was the plaintiff's claim that an evidentiary or probable cause hearing on the merits of the case was constitutionally required before a decision to dismiss a juvenile complaint may be rendered.' 8 ' The supreme judicial court 179. Id. at 273, 347 N.E.2d at Mass. Acts ch. 302, S 2 (current version at MASs. GEN. LAws ANN. ch. 119, 5 61 (West Supp. 1981)); see supra note Mass. at 273, 347 N.E.2d at Id. at , 347 N.E.2d at 679. In 1975, MASs. GEN. LAWS ANN. ch. 119, S 61 was amended by 1975 Mass. Acts ch. 804, S 1, effective Dec. 24, The statute required, snter alia, a judge to make a determination, during the transfer hearing, as to whether probable cause exists Mass. at 274, 347 N.E.2d at Id. at 278, 347 N.E.2d at 682. The court addressed briefly the requirement of Breed that a juvenile transfer hearing must be held prior to a hearing on the merits. The supreme judicial court held that they believed that MASs. GEN. LAWS ANN. ch. 119, 61 (West Supp. 1981) as appearing in 1964 Mass. Acts ch. 308, 2 may be read as permitting a nonadjudicatory transfer hearing prior to an evidentiary hearing on the complaint. Id. at 276, 347 N.E.2d at 681.

28 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 disagreed, relying on the United States Supreme Court's decision in Breed which withheld any opinion as to whether such an evidentiary showing was a necessary component of a transfer heanng. 8 5 As the Massachusetts court found no constitutional or statutory requirement to support the plaintiff's contention, also disagreed with him that he was demed the opportunity to cross-examine witnesses or to produce evidence m his favor. 8 6 In light of the Breed decision, the court determined it would be unconstitutional if the transfer heanng was intended to resolve the question of guilt or innocence. 87 Therefore, the supreme judicial court concluded, the judge did conduct a full investigation on the issue of transfer and the hearing did comply with the concepts of fundamental fairness as required by Kent v. Unsted States' 8 " even though the plaintiff was not allowed to test the allegations in the complaint. 8 9 After briefly discussing the plaintiff's other arguments the court turned to a discussion of the relevant considerations for determining whether to transfer a juvenile to adult court. In deciding this question, the court stated: "[I]t is essential to keep sight of the important consequences which result from a transfer decision and the legislative policy underlying our statutes relating to delinquent children."' 90 The court noted the differences in sentencing the plaintiff as a juvenile or as an adult, and stated: If treated as a juvenile the plaintiff will have no crininal record, 191 ] will not be disqualified from public service,[ 192 ] will be eligible for rehabilitation under the care and guidance of the Youth Service Board,11 9 3s and will be discharged at the age of eighteen unless there is a finding that his discharge 185. d. at 278, 847 N.E.2d at Id. at 279, 347 N.E.2d at 683. The supremejudical court applied MASS. GEN. LAWS ANN. ch. 119, S 61 (West Supp. 1981) as appearing in 1964 Mass. Acts ch. 308, S Id U.S. 541 (1966) Mass. at 280, 347 N.E.2d at Id. at 281, 347 N.E.2d at MAss. GEN. LAWS ANN. ch. 119, S 53 (West Supp. 1981) MASs. GEN. LAWS ANN. ch. 119, S 60 (West Supp. 1981) MASs. GEN. LAWS ANN. ch. 119, S 58, & ch. 120 (West Supp. 1981).

29 1982] MASS. JUVENILE TRANSFER STATUTE would be physically dangerous to the public. 194 If treated as an adult the plaintiff would be deprived of these substantial statutory protections.[ 195 ] Therefore, the sentence imposed would be equal to that of an adult charged with the same crime. 196 Thus, it was established by the court that when the legislature enacted the juvenile transfer statute, it intended that the statutory sections dealing with delinquent juveniles should be construed liberally so that juveniles would be treated "not as criminals, but as children in need of aid, encouragement and guidance."' 19 Inferred from this was the disfavoring of transfer except when "warranted by exceptional circumstances.'1 9 8 The court upheld its previous opinions holding that there was nothing in any statute or rule of court making the bind-over of a juvenile mandatory, and that this decision is discretionary in nature. 99 In exercising this discretion, however, a judge is to be guided by the factors enumerated in Rule 85(A) of the Rules of the District Court of Massachusetts and Mass. Gen. Laws Ann. ch. 119, section 61 as amended in 1975, which provide: [O]n the question of whether to try the child as an adult thecourt shall consider factors such as: 1) the seriousness of the alleged offense; 2) the child's family, school and social history, including his court and juvenile delinquency record, if any; 3) the apparent emotional, social and psychological condition of the child; and 4) the adequate protection of the public, likelihood of rehabilitation, and the rehabilitation facilities available. 200 There is no requirement that a judge consider these factors m a certain manner or order, but the decision to transfer is not proper 194. MASS. GEN. LAWS ANN. ch. 120, SS (West Supp. 1981) Mass. at 281, 347 N.E.2d at In this case, the plaintiff would be imprisoned for life if convicted of first-degree murder. Id. at 281, 347 N.E.2d at Id Id Id. at , 347 N.E.2d at Id. at 282 n.12, 347 N.E.2d at 685 n.12.

30 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 when merely supported by findings that deal with the seriousness of the charge and the inadequacy of existing juvenile facilities. 201 Despite the seriousness of these two factors, Mr. Chief Justice Hennesey, writing for the majority, stated that "there must also be a finding that the juvenile cannot be rehabilitated within the present juvenile structure, or that, in the absence of long-term supervision and security, he poses a serious threat to the public. ' 20 2 He further emphasized the "statutory requirement that a judge before dismissing a juvenile complaint, enter a written finding based on 'clear and convincing' evidence showing that the minor is not suitable for treatment as a juvenile." 203 The issue of whether a written finding must be entered before the dismissal of a juvenile complaint is rendered was addressed again in That time it was by the United States Court of Appeals for the First Circuit in Stokes v. Far 204 In that case an appeal was taken from a judgment of the United States District Court granting habeas corpus relief to a prisoner based on Kent v. Unrited States The district court agreed with the defendant that his due process rights were violated when the municipal court failed to state reasons for its decisions to waive juvenile court jurisdiction over him and refer him for treatment as an adult The United States Court of Appeals reversed the trial court's decision After a lengthy discussion of the United States Supreme Court's holding in Kent, the court ruled that Kent did not "promulgate a standard list of absolute procedural guarantees which must be provided before an accused juvenile can receive adult offender treatment." 208 The court of appeals maintained that while the United States Supreme Court's opinion in Kent contains extensive 201. hi. at 282, 347 N.E.2d at Id Id. This is reqimred by MASS. GFN. LAWS ANN. ch. 119, S 61 as amended by 1974 Mass. Acts ch. 308, F.2d 287 (Ist Cir. 1978) UI.S (1966) l.2d at Id. at Id.

31 1982] MASS. JUVENILE TRANSFER STATUTE reference to constitutional rights which forcefully suggests a constitutional dimension to an accused juvenile's rights, there is also within that case explicit language to the contrary- This concern that children m juvenile court are doubly deprived, receiving neither procedural protection nor special care, does not induce us m this case to accept the invitation to rule that constitutional guarantees which would be applicable to adults charged with the serious offenses for which Kent was tried must be applicable in juvenile court proceedings concerned with allegations of law violations Based upon the controlling statute, Mass. Gen. Laws Ann. ch. 119, section 61, the court held that there was no requirement that a statement of reasons be given The court was of the opinion, however, that since Massachusetts does provide a mechanism for appellate review of the waiver of a juvenile, the preferred procedure would be for the court to state the reasons for its decision Nevertheless, the court determined that the appellee's constitutional rights were not violated because his record was devoid of any specific evidentiary determinations. 212 According to the court, "requiring the juvenile court to repeat facts presented to it would have added little if anything to the appellee's knowledge or a reviewing court's ability to evaluate the proceeding." 213 One of the factors the court considered in Stokes v. Fasr 21 4 was the ability of a defendant to appeal the juvenile transfer hearing 209. Id. (citing Kent v. United States, 383 U.S. at 556) Id. at It is important to point out that there are no substantive constitutional requirements as to the statutory scheme that a state may select for the transfer of jursdiction over a juvenile from a juvenile court to an adult court. "[T]he court has never attempted to prescribe the criteria for, or the nature and quantum of evidence that mustsupport, a decision to transfer a juvenile for trial in adult court." Breed v. Jones, 421 U.S. at Appellee received a hearing at which he was represented by counsel. At the hearing the court received evidence that Stokes had been carrying a sawed-off shotgun, had broken into a local business with accomplices, taken money from the premises, and had attempted to beat the night watchman to death. The testimony also indicated that this was a planned and deliberate operation. 581 F.2d at 288, F.2d at F.2d 287 (1st Cir. 1978).

32 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 decision. In another case decided in 1978, the supreme judicial court held just the opposite. In the case of A Juvenile v. Commonwealth, 215 the petitioner was charged in Boston Juvenile Court with delinquency complaints of the use of a motor vehicle without authority, vehicular homicide and operating without a license. 216 These same charges were brought against two other juveniles Three months after the defendants were charged, a juvenile hearing was held simultaneously for all three juveniles. 218 A month later the delinquency complaints concermng vehicular homicide and operating without a license were disnussed against the plaintiff for lack of probable cause "The complaint charging use without authority was continued for finding and disposition." 220 Later in the month, the petitioner was committed to the Massachusetts Department of Youth Services Two months after the petitioner's commitment, he was charged again with delinquency by reason of vehicular homicide and operating without a license. 222 Again a transfer hearing was requested by the Commonwealth The additional evidence to be presented by the prosecutor was the testimony of one of the co-defendants involved in the accident. 22 ' A motion was filed by the petitioner to dismiss the request for a transfer hearing. 225 After considering the motion, the judge indicated that he would sign a memorandum in support of a petition pursuant to Mass. Gen. Laws Ann. ch. 211, section 3226 because Mass. 104, 374 N.E.2d 1351 (1978) Id. at 105, 374 N.E.2d at Id Id Id Id Id Id. at 105, 374 N.E.2d at Id Id Id. at 106, 374 N.E.2d at MAsS. GEN. LAWS ANN. ch. 211, S 3 (West Supp. 1981) provides in part that: The supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided; and it may issue all writs and processes to such

33 1982] MASS. JUVENILE TRANSFER STATUTE the issues were of such importance, and no other form of relief existed. 227 The petitioner then brought an action in the supreme judicial court. The supreme judicial court agreed with the lower court that no remedy other than relief under the statute was available to the petitioner to give him the relief which he sought- avoidance of a second transfer hearing. 228 In making this determination, the court relied heavily on the fact that the decision to transfer is not subject to appeal; "no appeal can be taken from the allowance of a motion to disnss a request for a transfer hearing." 22 9 After concluding that the function of a probable cause hearing is identical to that of a probable cause portion of the transfer hearing, the court held that there was no reason to disallow a second transfer hearing when additional evidence is available as this is a practice in the adult criminal court. 230 The court did note, however, that at the second transfer hearing, the judge should consider whether any prejudice attaches to the juvenile because of the lapse of time between the initial and the subsequent hearing. 3 1 This inquiry is necessary as one of the criteria involved in the transfer decision is the defendant's age The most recent and perhaps the most important case involving the juvenile transfer statute is A Juvenile v. Commonwealth. 233 In that case, the youth was charged in Boston Juvenile Court with delinquency in that on May 1, 1976 he had forced sexual intercourse upon a child under sixteen Petitioner was approximately sixteen and one-half years old at the time, thereby placing him in the fourteen to seventeen year old class of offenders On June courts and to corporations and individuals which may be necessary to the furtherance of justice and to the regular execution of the laws Mass. at 106, 374 N.E.2d at Id Id Id. at 107, 374 N.E.2d at Id. at 107, 374 N.E.2d at Id. at , 374 N.E.2d at Mass. Adv. Sh. 1131, 405 N.E.2d 143 (1980) Id. at 1132, 405 N.E.2d at Id.

34 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 30, 1976, a motion to transfer to the superior court was held and the first part of the process was conducted - an inquiry into probable cause The judge found that probable cause did in fact exist,237 and on July 14 a hearing was held on the question of transfer. 238 At the hearing, reports were received from the court's clinical psychiatrist, the probation department, the Department of Youth Services and the Boston Juvenile Court climc In addition, the judge heard from the people responsible for court liaison with the Department of Youth Services. 240 Two weeks later the judge entered his order, ruling that " 'the petitioner poses a serious threat to the public' and that 'he cannot be rehabilitated within the juvenile justice system.' " Id Id Id Id Id Id. at , 405 N.E.2d at 145. The document read thus: "After a full hearing, the Court finds that there is Probable Cause to believe that the defendant committed the offense of rape on [Jane Doe], age 5, armed with a knife and committed with force and violence. "The Court next heard the second part of the transfer hearing and received evidence and reports from the Boston Juvenile Court Clinic psychiatrist, social service reports and psychological testing report of the Clinic. Evidence was also taken from members of the Department of Youth Services. "The Court finds that the defendant poses a serious threat to the public. "Substdia ry findirgs: "1) The defendant has no prior juvenile record. "2) The defendant is a high school student, born 12/16/59 and lives with his parents and other siblings. It is a family that is well intact and is not a significant factor in the Court's determination. "3) The Court Clinic reports indicate that there is no need for psychiatric recommendations for the subject. "4) Rape by its very nature is a serious offense. In this case the rape was committed on a five-year old child with force and violence. The victim was left bleeding. The defendant had a knife. The rape occurred in a hallway of a building. "5) The Department of Youth Services had no recommendation in respect to the defendant. Confinement in any of their facilities would be for four months. They offer no treatment for sexual offenders. Their facilities are seni-secure, at best. "6) Based upon all the foregoing, the Court finds, upon clear and convincing evidence, that the defendant poses a serious threat to the public, based on the nature of the offense and the manner in which it was committed; that the defendant cannot be rehabilitated within the juvenile justice system. "Therefore, the Court finds the defendant should be transferred to the Superior

35 1982] MASS. JUVENILE TRANSFER STATUTE Accordingly, the juvenile complaint was dismssed 242 and a criminal complaint was issued. 243 The petitioner was later indicted 244 and plead not guilty at the arraignment. 245 On November 26, the petitioner, with a formal affidavit, filed a motion in superior court to disrmss the indictment under Mass. Gen. Laws Ann. ch. 277, section 47A, 246 "on the ground that the opinion and order of bind-over violated the standards announced in A Juvenile v. Commonwealth. ",247 The motion was heard on August 9, 1977, and one month later the judge issued his findings that the transfer had "inadequate subsidiary findings. ' 24 The superior court remanded the case to the Boston Juvenile Court for the inclusion of subsidiary findings, but the juvenile court never acted upon the order On December 4, 1978 the petitioner filed a second motion to disnmss the indictment.? 50 That motion came before a second superior court judge who on December 21, 1978, directed the parties to contact the juvenile court special justice responsible for the transfer order. 2 1 The juvenile court justice issued findings on February 24, 1979, similar to those on June 28, 1976, except for an addendum to the sixth subsidiary finding. 252 Court for trial as an adult, and so orders." Id. at 1139 n.10, 405 N.E.2d at 148 n Id. at 1133, 405 N.E.2d at Id Id Id Id. MASS. GEN. LAWS ANN. ch. 277, S 47A (West Supp. 1981) provides in pertinent part: In a criminal case, any defense or objections based upon defects in the institution of the prosecution or in the complaint or indictment, other than failure to show jurisdiction in the court or to charge an offense, shall only be raised prior to trial. The failure to raise any such defense or objection prior to trial shall constitute a waiver thereof Mass. Adv. Sh. at 1133, 405 N.E.2d at 145 (citing A Juvenile v. Commonwealth, 370 Mass. 272, 347 N.E.2d 677 (1976)) Id. at 1133, 405 N.E.2d at Id Id. This motion was filed pursuant to MASS. GEN. LAws ANN. ch. 277, S 47A (West Supp. 1981). See supra note Mass. Adv. Sh. at 1133, 405 N.E.2d at Id. "This consisted of adding to the sixth subsidiary finding: 'and he needs to be

36 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 On May 10, 1979, the petitioner's attorney filed a motion to suppress the further finding. 253 He contended that as the original juvenile complaint was dismissed pursuant to Mass. Gen. Laws Ann. ch. 119, section 61, when the transfer order was made there was nothing on which a further finding could attach. 254 This motion, along with two other motions to dismiss the indictment was demed by another superior court judge and the petitioner appealed to the supreme judicial court. 255 The supreme judicial court held that the findings of the juvenile court judge were insufficient to support a transfer order to the superior court 256 where the findings as to the lack of a prior juvenile record and family situation indicated an amenability to rehabilitation. The supreme judicial court determined that "what appeared on the matter in the findings were ambiguous and seemed to commit the very mistake of resting on the seriousness of the charge and the inadequacy of the facilities in safeguarding the public In deciding the proper disposition, the supreme judicial court took a middle-ground approach. It neither dismissed nor retained the indictment despite the infirmities. 258 Instead, it was ordered that the indictment was to remain in place temporarily and directed the superior court to request the juvenile court to clarify its last findings of February 14, 1978 in light of the supreme judicial court's guidelines and present opmion. 259 If from the revised findings, the court concluded, it appeared that a case for transfer was not made, the petitioner would be entitled to a dismssal of the indictment on motion in the superior court. 260 confined m a secure setting.' "Id. at 1141 n.14, 405 N.E.2d at 150 n Id. at 1133, 405 N.E.2d at Id. at , 405 N.E.2d at Id. at 1134, 405 N.E.2d at Id. at 1137, 405 N.E.2d at Id Id. at 1141, 405 N.E.2d at Id Id.

37 MASS. JUVENILE TRANSFER STATUTE VI. AN ANALYSIS OF THE MASSACHUSETTS JUVENILE TRANSFER STATUTE The Massachusetts juvenile transfer statute is a legislative compromise between protecting the public and rehabilitating the serious juvenile offender. Although the case law makes this procedure seem complicated, m actuality it is relatively simple. Mass. Gen. Laws Ann. ch. 119, section 74 provides that no criminal proceeding can begin against any person who, prior to his seventeenth birthday, commits an offense against the law of the Commonwealth or who violates any city or town by-law, unless delinquency proceedings have been dismissed by the court. 26 ' Such a dismissal, with subsequent adult court proceedings, can occur through the operation of one of two statutes, although only one of these methods will be discussed - Mass. Gen. Laws Ann. ch. 119, section Mass. Gen. Laws Ann. ch. 119, section 61 prescribes the two conditions by which a transfer hearing can be ordered: A transfer to adult court is warranted if the child: A) had been previously committed to the Department of Youth Services as a delinquent child and has committed an offense against a law of the Commonwealth, which if he were an adult 261. An exception to the general rule of MASs. GEN. LAWS ANN. ch. 119, S 74 (West Supp. 1981) is that an adult criminal complaint alleging a violation of MASS. GEN. LAWS ANN. ch. 89 (West Supp. 1981) (law of the road) or MAss. GEN. LAWS ANN. ch. 90 (West Supp. 1981) (motor vehicles) which is not punishable by imprisonment or by a fine of more than $100.00, or that alleges a violation of any city ordinance or town by-law regulating the operation of motorvehicles, may be brought against a child between sixteen and seventeen without a prior delinquent proceeding. MASs. GEN. LAWS ANN. ch. 119, S 61 (West Supp. 1981) The other method of transferring jurisdiction is outlined in MAss. GEN. LAWS ANN. ch. 119, S 72A (West Supp. 1981) which provides: A person who commits an offense prior to his seventeenth birthday, but is not apprehended until after his eighteenth birthday, shall be brought before the juvenile court whereupon a probable cause hearing will be held. If the court finds that probable cause exists to believe the defendant committed the offense, the court can either order the defendant discharged, if satisfied that such discharge is consistent with the protection of the public, or cause the complaint to be dismissed and the defendant tried as an adult if the interests of the public require such an action.

38 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 would be punishable by impnsonment m the state prison or; B) has committed an offense involving the infliction or threat of serious bodily harm if such alleged offense was committed while the child was between the fourteenth and seventeenth birthdays and if the court enters a written finding that the child presents a significant danger to the public and is not amenable to rehabilitation as a juvenile. 263 The satisfaction of either one of these two requirements is sufficient for the transfer of jurisdiction. An interesting issue has arisen under the second condition insofar as defining an "offense involving the infliction or threat of serious bodily harm." Although the crimes of rape, armed robbery and murder clearly fall within the meaning of this statute, a crime such as the distribution of narcotics can be deemed questionable. Even though the court has yet to discuss this issue, it appears that a defense attorney may elect to object to transfer for those questionable offenses for which his client is charged. Rule 208 of the Special Rules of the District Courts of Massachusetts enables either the Commonwealth or the court to be the moving party for a transfer hearing if either of the two conditions of the statute are met. 264 A request for a transfer proceeding must be made in writing with the clerk of the court no later than seven days after the juvenile's arraignment. 265 As a practical matter, however, the request for a hearing is often made at arraignment. 266 The notice of the hearing must be given to the child or his attorney and to his parent or guardian at least seven days prior to the hearing. 267 As required by case law 268 and Rule 208 of the Special Rules of the District Court, the transfer hearing is comprised of two parts. The first part of the hearing is to determine whether probable 263. MASS. GEN. LAWS ANN. ch. 119, S 61 (West Supp. 1981) Rule 208 of the Special Rules of the District Court of Massachusetts [hereinafter cited as Special Rule 208] Id Shubow, supra note 1, at Special Rule 208, supra note See supra note 118 and accompanying text.

39 1982] MASS. JUVENILE TRANSFER STATUTE cause exists to believe that the youth committed the offense as charged If no probable cause is found the case will be disnssed. 270 If there is probable cause, the second part of the hearing is held There the issue is whether or not it is in the best interest of the public to transfer the child It must be noted that this two-step process is clearly consistent with the holding of Breed and therefore, if followed correctly, no issue of whether the juvenile has been subjected to double jeopardy should arise. The transfer hearing involves a determination of both the child's dangerousness to the public, and his amenability to rehabilitation within the juvenile justice system. 273 The court must also take into account "the seriousness of the alleged offense; the child's family, school and social history, including any court and juvenile delinquency record, if any; the adequate protection of the public; and the nature of any past treatment efforts for the child." 27 4 Each of these considerations was mandated by the juvenile transfer statute following the Supreme Judicial Court's decision in A Juvenile v. Commonwealth By using this method to resolve the question of transfer, it appears that juvenile court judges undertake a very individualized approach to each juvenile being considered for transfer. Furthermore, although the supreme judicial court held that the United States Supreme Court's decision in Kent did not lay down any constitutional requirements, it is apparent that in part, if not in whole, the supreme judicial court and the Massachusetts legislature have adopted those gudelines established in Kent The supreme judicial court's liberal statutory interpretation of Mass. Gen. Laws Ann. ch. 119, section 61 has been attacked as 269. Special Rule 208, supra note Id Id Id Brown-Roy, supra note 96, at MASS. GEN. LAws ANN. ch. 119, 61 (West Supp. 1981) Mass. 272, 347 N.E.2d 677 (1976) See supra notes

40 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 contributing to the dramatic decrease in the number of state-wide bmd-overs. 2 7 It has been stated 278 that because they are bound by the supreme judicial court's decisions, juvenile court judges are often unable to transfer those juveniles charged with serious offenses who have had little, if any past experience in the Massachusetts juvenile justice system or who could not be said to be capable of being rehabilitated. "In essence, a judge is faced with an almost insurmountable statutory burden of proving that a child is not amenable to treatment. ")279 The judge in the juvenile court has several dispositional outcomes available to him: first, find the juvenile not delinquent; 280 second, find the juvenile delinquent; 281 third, dismiss the case due to the lack of, or faulty evidence; 282 fourth, file the case with no further consequences for the youth as long as he or she stays out of trouble; 283 fifth, continue the case without a finding - no determination of delinquency; 2 84 or, sixth, bind the youth over to superior court where he or she may be tried as an adult Once the child is bound-over and tried as an adult, and a guilty dispositional outcome is rendered, the youth can be given the same sentence as an adult would be if charged with the crime In 1973 the total number of juvenile bind-overs was 129. In 1974, the number decreased to 76. The number increased in 1975 to 126 but dropped to 75 in There was a further decline in 1977 to 36 with an increase to 42 and 77 in 1977 and 1978, respectively. TASK FORCE, supra note 93, at 67. It must be noted that these statistics may not be indicative of the amount of transfers that actually occurred during the 1970's because the Breed decision forced many juveniles who had originally been transferred to adult court were forced back to juvenile court TASK FORCE, supra note 93, at Id Id. at If there is a finding of delinquency, the judge has four alternatives: he may impose a fine; place the youth on probation; commit the youth to the Department of Youth Services; or suspend the commitment. Brown-Roy, supra note 96, at Id Id Id Id In a recent case m Oklahoma, Eddings v. Oklahoma, 50 U.S.L.W 4161 (U.S. Jan. 19, 1982), the petitioner, a sixteen-year-old boy, was convicted m an Oklahoma trial court

41 1982] MASS. JUVENILE TRANSFER STATUTE In analyzing the effect of the juvenile transfer statute, it is important to examine whether and how many juveniles, after being bound-over, were given the same sentence as their adult counterparts. In a study conducted on Massachusetts juvenile bind-overs during 1979 only forty-five percent, or fourteen of the cases, were sentenced to incarceration under the control of the Massachusetts Department of Corrections Thus, fifty-five percent received dispositions that could have been provided by the juvenile court. 288 Of those not incarcerated, 28 9 almost one-third of the defendants received supervision in the community as a disposition, while ten percent were committed to the Massachusetts Department of Youth Services. 290 Six percent were dismissed and three percent were found not guilty A second study on juvenile transfers examined the actual placements of youths bound-over and sentenced to state prison This study conflicted with the one prepared by Marjorie Brown- Roy on the issue of the average length of incarceration. The report prepared by Ms. Brown-Roy found that the average length of incarceration was fourteen years, while the second study concluded that the average imprisonment for the juveniles was only ten years. 298 Secondly, this report stated that between 1972 and 1979 only 105 juveniles were transferred, producing a yearly average of seventeen youths incarcerated in the state prison system Once of first-degree murder and sentenced to death. On appeal, however, the United States Supreme Court reversed the sentence because it "was imposed without 'the type of individualized consideration of mitigating factors required by the Eighth and Fourteenth Amendments in capital cases.' "50 U.S.L.W. at 4161 (citing Lockett v. Ohio, 438 U.S. 586, 606 (1978)) Brown-Roy, supra note 96, at Id. at Incarceration is the only dispositional outcome not available m the juvenile system. Of those incarcerated, 19% were sent to MCI Concord, 16% to County Jail and 10% to MCI Walpole. Brown-Roy, supra note 96, at Id Id Williams, Preliminary Report on Massachusetts Juveniles in Adult Corrections (1981) (prepared for the Massachusetts Department of Corrections) JJAC, supra note 93, at Id.

42 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 again, however, the statistics may be misleading because of the Breed decision, as many transfer cases were subsequently dismissed or transferred back to the juvenile court in light of the Supreme Court's decisional mandates. The lack of statistics and the disparity between studies make an analysis tenuous at best. Nevertheless, after analyzing the data produced by the two studies and the case law on the subject of transfer, it can be concluded that despite the ongoing complaint that transfer proceedings are difficult, the figures indicate that juvenile offenders are being bound-over to adult criminal court to stand trial. This may be due in part to the rise in serious violent crime, as almost all juveniles transferred are serious violent offenders. 296 There is no way to deterrmne, however, what effect the transfer procedure will have on the crime rate in future years. In all probability, the crime rate will increase in spite of the transfer process because of the effect that Proposition Two and One-Half is having on the police departments throughout the Commonwealth. 296 The fundamental problem with the juvenile transfer procedure seems to be that despite the transfer of jurisdiction over juveniles to the adult criminal system, there is no automatic guarantee that they will receive greater secure placement than if they were processed by the juvenile court. This could be due to the current overcrowding of prisons within the state; the supposed leniency of the superior court judges when sentencing juveniles; or the attempt by the juvenile court judges to comply with the legislative intent of the initial transfer statute that "children should be treated as children, not criminals. ' In addressing the issue of the overcrowding of the state's prisons, the Massachusetts Department of Corrections' Account Sheet reported that as of February 8, 1982 there were 3876 prisoners in the state prisons for 3229 facility beds In relation 295. Id Mass. Acts ch See supra note Telephone interview with research aide, Mass. Dep't of Corrections (Feb. 8, 1982).

43 1982] MASS. JUVENILE TRANSFER STATUTE to their ideal capacity, the Massachusetts prisons are 129% over the ideal rated capacity 299 It is evident by these statistics that judges, whether they are sentencing juveniles or adults, will probably be somewhat reluctant to add to the over-population problem that already exists. In discussing whether the superior court judges are too lenient, it must be noted that a judge has a very difficult decision to make when sentencing a juvenile to a state prison, especially if it is to a maximum security facility. If the juvenile is almost an adult m size the problem is less severe. Yet, if the child looks, acts or appears to be a child, he will have terrible problems in a system which is not catered to the protection of youths. It does not appear that judges are too soft, but rather they are forced to take into consideration the care and protection of the youth as well as the public, as required by the initial founders of the juvenile justice system. A. Future Proposals One of the primary reasons the Massachusetts juvenile transfer statute was enacted was to afford judges an opportunity to incarcerate a serious juvenile offender rather than place him in the care and custody of the Department of Youth Services. Statistics show, however, that in 1979 only forty-five percent of those juveniles who were bound-over received sentences of incarceration under the control of the Department of Corrections. 300 Thus, it is apparent that in order for the Massachusetts juvenile transfer statute to satisfy the purpose for which it was intended, certain changes must occur within the Commonwealth's criminal justice system. The first and foremost proposal is the creation of additional juvenile centers which, unlike the present juvenile placements, will house only those youths who have been bound-over, found guilty, and sentenced as adults. This change would not only lessen 299. Id. The ideal rated capacity is 3,002, which is 90% of its actual capacity. Id See supra note 270 and accompanying text.

44 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 8:2 the burden on correction officials in finding a place for a juvenile in the Commonwealth's already overcrowded state prison facilities, but it would also enable a judge to place a youth in a maximum security facility knowing that he is approximately the same age and size as other prisoners housed there. Furthermore, this sentencing arrangement would likely reduce the influences that experienced criminals can exert on juveniles incarcerated with them. Unlike the youth centers under the control of the Department of Youth Services, these new facilities should be under the auspices of the Department of Corrections. This is necessary because these serious juvenile offenders need the rehabilitative and punishment programs akin to what is offered in the adult correctional facilities. Furthermore, even though these prisoners are juveniles, they should be treated not as juvenile delinquents but as serious violent offenders in need of rehabilitation as well as punishment. This rehabilitation process should consist of socializing the youth back into the mainstream of society as well as stressing the importance of education and vocation. The creation of new juvenile centers should not, however, release the Commonwealth of its burden of demonstrating the need for the transfer of jurisdiction from the juvenile system to the adult criminal court; only when no alternatives are left should a youth ever be bound-over Furthermore, these juveniles must be afforded the requirements of due process and fair treatment as mandated by the United States Supreme Court in Kent v. United States,soi In. Re Gault, 02 and Breed v. Jones Without these rights, juveniles would undoubtedly receive "the worst of both worlds - [getting] neither the protection afforded to adults nor the solicitous care and regenerative treatment postulated for children." U.S. 541 (1966). See supra notes and accompanying text U.S. 1 (1967). See supra notes and accompanying text U.S. 519 (1975). See supra notes and accompanying text U.S. at 556.

45 1982] MASS. JUVENILE TRANSFER STATUTE VII. SUMMARY The increase in the rate of juvenile crime over the past decades has forced legislators, prosecutors, and judges to restructure the juvenile justice system. Consequently, a mechanism has been created whereby a juvenile who is charged with a serious violent crime can be treated for purposes of trial and sentencing as an adult There has been disagreement, however, on the rights that these juveniles should be afforded due to the disparity between juvenile and adult proceedings. While the United States Supreme Court in Kent was of the opinion that the rights of due process and fundamental fairness as required by the fourteenth amendment be applied to juveniles, many states have chosen to ignore this suggestion. Massachusetts, however, is not one of these states. Although the supreme judicial court has hedged on the question of whether the Kent case laid down a steadfast rule on the rights of juveniles, that court and the Massachusetts legislature have in their case-law and legislation respectively, determined that the rights of adults should be afforded to juveniles so that the transfer process is constitutionally sound. It is not apparent, however, whether the restructuring of the juvenile justice system and the subsequent enactment of the Massachusetts transfer statute has alleviated the problems of juvenile crime within the Commonwealth. Presently, there are problems within the juvenile justice system and the recommendations outlined in this note must be given serious consideration or else the time and money already spent in the effort to rd the state of serious juvenile crime will have been an exercise in futility RANDI J. VLADIMER 305. See supra note 5 and accompanying text U.S. 541 (1966). See supra notes and accompanying text.